In Trump Twitter Case, Parties Dispute Whether President's Tweets Are Government Action; Judge Buchwald Floats "Muting" Compromise

Last week, Judge Buchwald heard oral argument (see transcript here) on summary judgment motions in Knight First Amendment Institute v. Donald J. Trump (see our previous coverage here). The suit alleges that President Trump and others violated the First Amendment when they blocked Twitter users who wrote tweets critical of the president.  The plaintiffs claim that preventing them from viewing comments, replying to tweets, and participating in comment threads denies access to an important public forum in the 21st century. The argument focused on both the mechanics of Twitter and the platform's status as a public forum.  Among other topics, Judge Buchwald asked a series of questions regarding whether the President's use of Twitter for "overwhelmingly government purposes" was enough to transform a personal Twitter account into government action.  According to the plaintiffs,

[T]he President, since he was inaugurated, has used the account as a means of communicating to the public about his presidency.  And occasionally and only sporadically, if you look at the tweets, does he mention anything that's not related to his presidency. There could be some cases where if you applied the analysis of the totality of the circumstances, you would say, this is more like a personal account than an official account, but we're not even close to the line here.  It is overwhelmingly used for official purposes.  The President himself views it that way. His aides view it that way. The courts and DOJ views it that way. We're not even close to that. In this case the plaintiffs were blocked after they tweeted replies to him about official matters.

The Government's argument focused on whether the President's use of Twitter created a public forum.  According to the Government, it had not:

[A]ll of the sort of town hall or city council meeting examples involve events where there is a Board of Education meeting or a city council meeting where the point of hosting the meeting is to get government participation in a government decision. There is just no evidence in the record that that's how the President uses his Twitter account. He uses it to communicate his message. And to be sure, he sometimes retweets the messages of others that he finds to be supportive, but that's very different from a government official convening in a government space a meeting to discuss how government decisions are to be made. So, again, I think this just all reinforces that the President uses Twitter to communicate his views. And as he can whenever he is in a public setting, a participant in the marketplace of ideas, he is free to decide who to engage with or not in that context, so long as he doesn't then prevent others from disseminating their views and trying to reach other people and convince them of their views.

At several points in the argument, Judge Buchwald suggested that a practical solution would be for the President to "mute" (instead of "block") the Twitter users he preferred to ignore:  "[W]hy is it not a solution that serves the expressed interests of both sides to, instead of blocking these plaintiffs, the President mutes them? When he mutes them, he doesn't affect the interaction of the other, as you call them, other constituents." Today, Judge Buchwald asked the Government to address in a letter brief whether users can also be blocked from the @POTUS and @WhiteHouse accounts, and whether the First Amendment analysis is different for these two accounts as compared to the @realDonaldTrump account.  At the argument, the Government took the position that users probably could not be blocked from government accounts such as @POTUS and @WhiteHouse, even if they could be blocked from following @realDonaldTrump. Additional coverage appeared in the Columbia Journalism Review, The New York Times, Reuters, and Forbes.