Key Lessons for School Officials and Other Public Employees from Recent Court Decision on Trump’s Twitter Account
As technology and social media continue to develop, so do legal questions surrounding their use by public entities and employees. On July 9, 2019, the Second Circuit Court of Appeals in Knight First Amendment Institute v. Trump decided that President Trump violated the First Amendment by blocking critical Twitter users from his account. The court warned that a public official who uses social media “for all manner of official purposes” cannot exclude users from “an otherwise‐open online dialogue” because they say things with which the official disagrees. This decision is the first from an appellate court on this issue and has important implications for a school district and other public employees who operate professional or personal social media accounts.
The case began when President Trump blocked certain individual Twitter users from his Twitter account, @realdonaldtrump. Each individual plaintiff had posted replies to the President’s tweets, criticizing him or his policies. During the trial, the government conceded that the individuals were blocked because of their criticism. Because they were blocked, the individual users were no longer able to view the President’s tweets, directly reply to his tweets, or use the @realdonaldtrump web page to view and participate in comment threads associated with the President’s tweets.
In order to answer the question of whether President Trump’s actions violated the First Amendment, the court had to answer two questions:
- Was the President acting in a governmental capacity or as a private citizen when blocking the users from his Twitter account?
- If he was acting in a governmental capacity, was his Twitter account a “public forum” under First Amendment analysis, meaning that the President could not exclude members of the public based on viewpoint?
Regarding the first issue, the President argued that he uses his Twitter account exclusively for his own, private speech. The Court noted, however, that the account is presented as being operated by the President and that the White House characterizes the account as a channel through which the President shares official governmental business. These and other factors led the court to decide that the @realdonaldtrump account was a public account through which the President acted in an official capacity when sharing information.
As to the second issue, the President argued that his Twitter account is not a public forum subject to the First Amendment and that, even if it were, the blocked users were not actually excluded from the use of Twitter due to the President’s actions of blocking them. The Court reasoned that “opening an instrumentality of communication for indiscriminate use by the general public creates a public forum.” As the President’s account was intentionally opened for public discussion and used as a vehicle for official governance, the Court considered the account a public forum. In a public forum, viewpoint discrimination—restricting speech on a given subject matter—violates the First Amendment. The Court held that by blocking the individual plaintiffs based on their criticism of the President or his policies, the President prevented them from interacting with his tweets, which ultimately excluded them from the public forum in violation of the First Amendment.
The Second Circuit Court’s holding, in this case, could have important implications for public entities and employees that maintain social media accounts. Importantly, the Court noted that “not every social media account operated by a public official is a government account.” Determining which accounts are governmental accounts is a fact-specific inquiry, in which courts will consider: (1) how the official describes and uses the account; (2) to whom the features of the account are made available; and (3) how others regard and treat the account. Public employees should keep these factors in mind when operating both public and private social media accounts. This case is yet another important reminder of the importance of maintaining a clear line between official accounts of public entities and employees and personal accounts. The use of personal accounts to conduct business may limit the rights of the operators of the accounts to restrict unwelcome speech.