Judge Buchwald: Trump Can't Block Twitter Users Under First Amendment

In an opinion yesterday, Judge Buchwald found that President Trump's practice of blocking users on Twitter (typically after they post a comment critical of the President) violates the First Amendment. The plaintiffs (who included individual users as well as the Knight First Amendment Institute) claimed 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 (see our initial coverage here). After finding that the plaintiffs had standing, Judge Buchwald determined that the President's Twitter account was appropriately analyzed as a public forum.  Judge Buchwald reasoned that the account is subject to government control for First Amendment purposes in part because President Trump has used the account "to take actions that can be taken only by the President as President."  Judge Buchwald then determined that the President may not block users on Twitter based on their political views.  In doing so, she emphasized that blocking users goes further than merely "muting" them, insofar as blocking actually limits the blocked user's "right to speak":

The blocking user “will not see any tweets posted by the blocked user” just as a muting user would not see tweets posted by a muted user, but whereas muting preserves the muted account’s ability to reply to a tweet sent by the muting account, blocking precludes the blocked user from “see[ing] or reply[ing] to the blocking user’s tweets” entirely. The limitation of the blocked user’s ability to reply directly is more than the blocking user merely ignoring the blocked user; it is the blocking user limiting the locked user’s right to speak in a discrete, measurable way.

Finally, Judge Buchwald declined to grant injunctive relief, citing separation of powers concerns and relying on the executive branch to follow the law as interpreted in her opinion:

[T]hough we conclude that injunctive relief may be awarded in this case . . .  we decline to do so at this time because declaratory relief is likely to achieve the same purpose. The Supreme Court has directed that we should “assume it is substantially likely that the President and other executive . . . officials would abide by an authoritative interpretation of [a] . . . constitutional provision," and there is simply no reason to depart from this assumption at this time.

Our complete coverage of the case is here.