President Donald Trump announces the nomination of Judge Brett Kavanaugh to be Associate Justice at the U.S. Supreme Court on July 9, 2018. Photo: Diego M. Radzinschi/ALM

When it comes to blocking people on Twitter, President Donald Trump is hands-on, creating a distinction that a U.S. Justice Department attorney urged the U.S. Court of Appeals for the Second Circuit to seize upon to restore his ability to block users.

That was one of the ways lawyers for the government attempted to parse Trump's actions on Twitter on appeal, as it sought to have the panel overturn a district court decision saying a group of Twitter users could not be blocked by the president.

The distinction was probed during the argument, with one pointed question indicating it would be hard to see Trump's Twitter account as a non-public forum.

“Are you seriously urging us to believe that the president is not acting in his official capacity when he is tweeting,” Circuit Judge Barrington Parker asked DOJ lawyer Jennifer Utrecht at one juncture.

Utrecht answered that it depended on the situation.

The suit was on appeal after U.S. District Judge Naomi Buchwald of the Southern District of New York ruled the president's personal account falls under the public forum doctrine, as established by the U.S. Supreme Court. Blocking individuals because of their political views, then, is a free speech violation, the district court found.

Utrecht argued before the panel—composed of Parker with Circuit Judges Peter Hall and Christopher Droney—that it was important not to think of Twitter like a town hall kind of forum. Rather, she told the court, it was like an open, privately owned mall where numerous and overlapping conversations were being had.

Trump was simply another voice in that same open space, who just so happened to routinely use his account to make official policy proclamations as President of the United States.

“He is participating in twitter, not acting in a controlling way,” Utrecht told the court, before noting that the replies to Trump's tweets weren't actually on his account, but instead were located on the accounts of those who did the actual replying.

She then sought to draw a fine but critical line between Trump's government actions on Twitter, and his private one. Noting several times that even presidents get to have private spaces where they can control who can and cannot be present—the president's Mar-a-Logo facility was one such example, Utrecht argued that Trump's personal blocking, in an individual capacity, of users was a private action of an option that all users on Twitter enjoyed.

The judges, already appearing skeptical, responded swiftly and collectively at this situation, speaking over each other to make their joint point.

“You're here because he is not a private individual,” Droney told Utrecht. “Your very presence here represents the fact that this is a public forum.”

Utrecht replied, “Certainly Your Honor, but if he was on the street and someone approached him and he walked away from that person, we wouldn't say either that that was a choice or power he was exercising by virtue of his governmental authority, nor would we say that his choice to walk away from that person and not hear their views was a forum.”

Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, argued that it “doesn't seem reasonable to separate” the personal and official aspects of the president's Twitter account.

“The only reason the president is in a position to block people from a public forum is that he is the president,” Jaffer told the court.

He pointed out that the only reason the individuals were blocked by Trump in the first place was because they disagreed with specific governmental policies. That Trump was expending government resources in helping him maintain and operate the account further moved it closer to the kind of protected space recently identified by the U.S. Court of Appeals for the Fourth Circuit's decision in Davidson v. Randall earlier this year.

Jaffer went on to warn that accepting this argument that the president can privately block users on a platform he uses in his official capacity “would have implications far beyond this particular context.” He said that conclusion could lead to every government website and accounts being able to keep certain public viewpoints from being expressed.

“I think you would be opening the door to distortion and manipulation of those spaces as well if you were to accept that line of argument,” he told the judges.

Related:

Trump Cannot Block Twitter Users From His Account, Court Rules

Appeals Court Rules Lawmakers Cannot Block Their Critics on Social Media

DOJ Appeals Decision to Curb Blocking by Trump Twitter Account to Second Circuit