Stephen M. Kramarsky

The intersection of law and technology often creates challenges, as courts struggle to apply existing legal norms and constructs to situations that could never have been imagined when those concepts were developed. Adding politics to the mix does not make the situation any easier—especially when the legal issues are among the most ancient and foundational in United States history: freedom of speech and unfettered political discourse. But when a technology like social media becomes, for billions of people, an essential part of their daily lives and connection to the world, fundamental legal issues arise that have to be addressed.

With the rise of social media as a dominant force in interpersonal communication, it is perhaps not surprising that it has assumed a similar place in the political discussion. Ten years ago, it would have been a shock to learn that 100% of Senators and 90% of members of the House of Representatives have Twitter accounts that they use in their “official” capacity (whatever that means, as a legal matter), or that the primary source of information about significant executive policies would be after-hours tweets. But that is exactly where we find ourselves today. And in that world, the distinction between the “personal” and “political” use of the same account can have significant legal consequences, which the courts now find themselves in the challenging position of untangling.

While “[a]s a general matter, social media is entitled to the same First Amendment protections as other forms of media,” Packingham v. North Carolina, 137 S. Ct 1730, 1735-36 (2017), it is not always clear how to apply those protections to the intangible online world. To what extent are Twitter accounts “official” government accounts? What should the law make of the “personal” accounts of high government officials? Are the posts on those accounts government records that need to be preserved? Do they constitute government speech? Is an official's Twitter account a “public forum” to which the general public has a right to access? What if that account is used only for “personal” tweets? Those questions and many others are still being answered.

And those questions are only the beginning. Just as it would have been difficult to predict where we now are 10 years ago, only time will tell what new developments will push the existing legal framework to its boundaries. But already, courts are beginning to weigh in. A recent Second Circuit opinion affirming a Southern District of New York decision is one of the first to address several of the questions posed above and may be instructive.

Background to the Dispute

“Twitter is a social media platform that allows its user to electronically send messages of limited length to the public” Knight First Amendment Inst. v. Trump, No. 18-1691-cv at 4 (2d Cir. July 9, 2019) (Knight First Amendment). After opening an account and choosing a “handle” users can “post their own messages on the platform” (referred to as tweeting).” Id. at 4-5. Users can choose to “follow” other users, after which tweets from those users will appear on a continuously-updated feed. Upon viewing a tweet, users can “reply” to that tweet or republish it, also known as “retweeting.” When a user replies to a tweet, it creates a “comment thread” in which a discussion can ensue.

Twitter has become one of the dominant social media platforms. It has been especially popular as a source of news (and celebrity gossip) because, unlike other platforms such as Facebook, it is specifically designed around facilitating widespread discussion without a “profile” containing extensive personal details. Unlike certain other platforms, such as Facebook or Instagram, many “celebrity” users on Twitter have public accounts, allowing anyone to follow them, giving them access to read and respond to their tweets.

In November 2016, Donald J. Trump was elected the 45th President of the United States. Throughout his presidential campaign, then-candidate Trump was an avid user of Twitter to communicate with his supporters and address his critics. He started his Twitter account “@realDonaldTrump” in 2009 and continued to use that account throughout the campaign as well as over the first years of his presidency “as a channel for communicating and interacting with the public about his administration.” Knight First Amendment, at 7. Since then, the President has used the account to tweet about every major aspect of his administration's policy.

In May and June of 2017, the President blocked seven individuals from his account because they posted content that was critical of him and his administration in response to one of his tweets. “Blocking” is a feature available to all Twitter accounts intended to provide users the ability to exclude individuals from viewing their tweets or otherwise interacting with them. When user A blocks user B, it generally prevents user B from seeing any of the content from user A or otherwise interacting with user A without using various burdensome workarounds.

The SDNY Action

In July 2017, the seven individuals blocked from the @realDonaldTrump account, along with the Knight First Amendment Institute at Columbia University, brought suit against the President and members of his administration (his communications and social media staff) for violating the First Amendment. The parties cross-moved for summary judgment. In 2018, the Southern District of New York granted the plaintiffs motion for summary judgment. The court found that “the blocking of the individual plaintiffs from the @realDonaldTrump account because of their expressed political views violates the First Amendment.”

The court found that each individual tweet constituted a “public forum” because it was a forum “in which other users may directly interact with the content of the tweets by … replying to, retweeting or liking the tweet.” Knight First Amendment, at 12. The court further found that the account was held open to the public at large and, because it was used for some governmental functions, all actions taken by the @realDonaldTrump account were government controlled. After determining that the account was a public forum, the district court further found that the individual plaintiffs had their First Amendment rights violated because they were excluded from a public forum based on an expression of their political views—the “blocking” was not content neutral. The district court also found that the Knight Institute's First Amendment rights were violated because it was unable to “read the replies of the Individual Plaintiffs which they cannot post because they are blocked.” Knight First Amendment, at 13.

The Second Circuit Decision

The Trump administration appealed the decision to the Second Circuit. On appeal, the administration conceded that the President had blocked the plaintiffs because they “criticized him or his policies” and “that such criticism was protected speech.” With those admissions, the administration was forced to shift its argument over the course of the appeal. The Second Circuit wrote: “The President's primary argument in his brief is that when he blocked the Individual Plaintiffs, he was exercising control over a private, personal account. At oral argument, however, the government conceded that the Account is not 'independent of [Trump's] presidency,' choosing instead to argue only that the act of blocking was not state action.” Alternatively, the administration argued that the @realDonaldTrump account was not a public forum, that President did not prevent anyone from accessing that account, or that posts on the account were “government speech” not protected by the First Amendment. Knight First Institute at 14-15. The Second Circuit rejected all of those arguments and affirmed the district court's grant of summary judgment.

First, the Second Circuit determined that the @realDonaldTrump account was a governmental, rather than private account. The government presented two main arguments in support of the position that the account was a personal, private account: (1) Twitter is a privately-owned platform and (2) the account was created in 2009 as a personal account on which then-private-citizen Trump shared his opinions. The Second Circuit rejected that view on the basis that the administration had held the @realDonaldTrump account out to the public as a channel through which the President and members of his administration communicated directly with the public. Further, the account was “consistently used … as an important tool of governance and outreach,” including to “engage with foreign leaders” and announce policy decisions. The government has two other accounts (@POTUS and @WhiteHouse) that actually belong to the government and are controlled by whoever is the sitting President at the time, but this administration uses those accounts largely to retweet the @realDonaldTrump account. Thus, the court held, the @realDonaldTrump account is currently a government-run account and “the President excluded the Individual Plaintiffs from government-controlled property when he used the blocking function of the Account to exclude disfavored voices.” Knight First Amendment, at 18-20.

Second, the Second Circuit determined that the @realDonaldTrump account was a public forum and the plaintiffs had been excluded from it. The government's primary argument here was that the President's actions did not preclude anyone from speaking generally—only from speaking “directly” to the President. However, the Second Circuit found otherwise: The reply and threading functions associated with the @realDonaldTrump account create a forum in which thousands of people could communicate, both with him and with each other. The court held that the restrictions on the plaintiffs' use of that forum impermissibly infringed on their First Amendment rights. Though the administration argued that there are “workarounds,” the court held that “burdens to speech as well as outright bans run afoul of the First Amendment.” Thus, “the President violated the First Amendment when he used the blocking function to exclude the Individual Plaintiffs because of their disfavored speech.” Knight First Amendment, at 22-27.

Third, the Second Circuit determined that the President was not engaging in “government speech” when he blocked the plaintiffs. “Under the government speech doctrine, '[t]he Free Speech Clause does not require [the] government to maintain viewpoint neutrality when its offices and employees speak.” Matal v. Tam, 137 S. Ct. 1744, 1757 (2017). However, because the President made no effort to “limit the Account's interactive feature to his own speech” and rather made it “generally accessible to the public at large,” the Second Circuit found it violated the First Amendment to exclude users based on their political views. Knight First Amendment, at 27-29.

Under Government Control

As numerous commentators have pointed out, this case was not a close call. By the time it reached the Circuit, the administration had already conceded that the President's so-called “personal” account was actually intimately tied to his administration, and that he blocked users from participating in it based up on their political views. His use of the account is very publicly and explicitly tied to his official duties. There is no serious argument that the @realDonaldTrump account is a purely personal account—at least for so long as its owner remains in the White House.

Nonetheless, much of the Second Circuit's analysis was devoted to the question of whether the @realDonaldTrump account was an “official” government account, because in these cases that is the single most important question. The court noted that the question of whether a mixed-used account is official or personal is a deeply “fact-specific-inquiry,” and with the increasing prevalence of Twitter as a platform for politicians, it is one likely to be posed with frequency in the coming years. In just the last months, politicians on both side of the aisle—and at all levels—have found themselves in in hot water based on their social media activity. To what extent was that activity “official” action? While the present case was a clear one, the courts will certainly face challenges as this area develops.

Stephen M. Kramarsky, a member of Dewey Pegno & Kramarsky, focuses on complex commercial and intellectual property litigation. Jack Millson, an associate at the firm, provided substantial assistance with the preparation of this article.