Try Muting Instead – Judge Rules Trump Can’t Use Twitter Block

A Federal Judge recently ruled that President Trump can’t block people on twitter and should use “mute” instead. This is a great chance to learn about free speech and public forum law.

Judge Buchwald’s Ruling in Knight First Amendment Institute v. Donald J. Trump: Knight-First-Amendment-Institute-v-Trump

Today I want to talk about the recent ruling that the President can’t block people on twitter.

There’s been a lot of controversy around this decision and I feel like this is a great opportunity to clear up some important concepts in First Amendment law.

After the opinion dropped, I saw lot of comments referring to twitter as a “designated public forum” which is not quite what the opinion says.

It’s a long opinion, so I’ve distilled the 75 pages down to something a bit more manageable and accessible.

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The plaintiffs are the night First Amendment Institute at Columbia University along with several individuals who say they were blocked. The defendants are Donald Trump, Hope Hicks, Sarah Huckabee Sanders, and Daniel Scavino.

The controversy at hand stems from Twitters blocking feature which not only prevents the blocker from seeing the blockee – but also vice versa – the blocked party can no longer see tweets from the blockers account.

Put into context, when the president blocks a user on twitter, the president can no longer see that users tweets, but, most importantly, the user can no longer see the presidents tweets, either.

Plaintiff’s believed that this violated the users First Amendment right to be protected from viewpoint-based discrimination from the government and sued in federal court.

The opinion covers First Amendment and public forum law – plus it touches on the Plaintiff’s standing to bring the case, a major jurisdictional issue.

Judge NAOMI REICE BUCHWALD, of the Southern District of New York, writes:

This case requires us to consider whether a public official may, consistent with the First Amendment, “block” a person from his Twitter account in response to the political views that person has expressed, and whether the analysis differs because that public official is the President of the United States. The answer to both questions is no.

Our analysis proceeds as follows. We first set forth the background facts regarding Twitter as a platform, the @realDonaldTrump account that is the center of this dispute, the plaintiffs, and this case’s procedural history. Because defendants object to our adjudication of this case based on plaintiffs’ lack of standing, we then turn — as we must — to the consideration of those jurisdictional arguments. We conclude that the plaintiffs have established the prerequisites to our jurisdiction: they have experienced a legally cognizable injury, those injuries are traceable to the President and Daniel Scavino’s conduct, and a favorable judicial decision on the merits is likely to redress those injuries.

We then proceed to the substance of plaintiffs’ First Amendment claims. We hold that portions of the @realDonaldTrump account — the “interactive space” where Twitter users may directly engage with the content of the President’s tweets — are properly analyzed under the “public forum” doctrines set forth by the Supreme Court, that such space is a designated public forum, and that the blocking of the plaintiffs based on their political speech constitutes viewpoint discrimination that violates the First Amendment. In so holding, we reject the defendants’ contentions that the First Amendment does not apply in this case and that the President’s personal First Amendment interests supersede those of plaintiffs.

Finally, we consider what form of relief should be awarded, as plaintiffs seek both declaratory relief and injunctive relief. While we reject defendants’ categorical assertion that injunctive relief cannot ever be awarded against the President, we nonetheless conclude that it is unnecessary to enter that legal thicket at this time. A declaratory judgment should be sufficient, as no government official — including the President — is above the law, and all government officials are presumed to follow the law as has been declared.

The judge starts by going over the basic functionality of Twitter. The short version is that people can tweet and tweets show up in feeds. Users reply to each other’s tweets publicly in threads.

An account can block or mute other users to control the interaction in different ways. A “mute” is a one-way hiding of a user from an accounts feed. The user can still see the account feed but the account will no longer see the user in their feed.

A block is different. It prevents both parties from seeing each other’s feeds while signed into their accounts. A user could sign out or could use a different account to circumvent the block.

The twitter account at issue is of course the @realDonaldTrump account, established in March 2009. While it is undisputedly his personal account, he began using the account “as a channel for communicating and interacting with the public about his administration . . . ” among other things.

The controversy began when the individual plaintiffs tweeted messages that were critical of the president or his policies at the real Donald Trump account. “Each individual plaintiff had his or her account blocked shortly thereafter, and each account remains blocked.”

The president does not dispute “that the individual plaintiffs were blocked . . . because [of] tweets that criticized the president or his policies.”

But before we turn to the merits of the case, “we are required to assure ourselves of jurisdiction.” says the Court. The main question is whether an individual citizen can even bring a lawsuit like this against the president.

To maintain a lawsuit, a Plaintiff must demonstrate that the Court has jurisdiction over the matter. Part of demonstrating that jurisdiction is showing that there really is a matter that the court can redress.

The plaintiff must demonstrate that they have (1) suffered an injury, that is (2) caused by defendant and can be (3) redressed by a court decision.

That’s super important. It means that only cases where a plaintiff can show an injury, causation, and that a court can actually do something, can proceed to adjudication on the merits.

In this way, the requirements of jurisdiction and standing ensure that only meaningful cases make it fully into court. This helps maintain judicial efficiency, limiting wasted time and expense for the courts and the parties.

The court goes into more detail than I will here, so please see the description for a link to the actual opinion if you want to read the well-written summary of standing included in the courts opinion.

But, basically: a plaintiffs injury must be a legally protected interest that is concrete and particularized and actual and/or imminent, not hypothetical. A “concrete and particularized injury” is one that affects the plaintiff in a personal and individual way, hence the individual defendants here, who must have a personal stake in the outcome, more than a generalized grievance.

The court writes: “In this case, the record establishes a number of limitations on the individual plaintiffs’ use of Twitter as a result of having been blocked. As long as they remain blocked, “the Individual Plaintiffs cannot view the President’s tweets; directly reply to these tweets; or use the @realDonaldTrump webpage to view the comment threads associated with the President’s tweets while they are logged in to their verified accounts.” “The individual plaintiffs’ ability to communicate using Twitter has been encumbered by these limitations (regardless of whether they are harms cognizable under the First Amendment).”

On the issue of causation, the court notes that only some of the defendants have access to block people on the real Donald Trump twitter account. The court finds that Sarah Huckabee Sanders does not have access to the real Donald Trump account and Hope Hicks previously resigned. Accordingly, they are dismissed from the case. The other defendants have access to the account and have participated in the blocking.

Finally, on the issue of redressability. This is where the court establishes that it’s even possible to issue a decision in favor of the plaintiff. Even if a plaintiffs injuries have been caused by defendant, there needs to be something a court can do about it for a case to proceed at all. This is where the court makes that “threshold” decision.

Here, Judge Buchwald easily concludes that a court order, even one for declaratory relief, meaning just a statement about who’s right and who’s wrong, would meet the redressability requirement.

The judge talks a bit about Columbia University’s ability to be a organizational plaintiff. I’ll skip that here but you can see the full opinion at our website in the description for the details.

The court then turns to the “primary point of the dispute”: “whether a public official’s blocking of the individual plaintiffs on Twitter implicates a forum for First Amendment purposes.”

The court’s analysis takes several steps. First, the court must establish whether the individual plaintiffs are engaged in protected speech in a public forum.

In this case, there is little dispute that the individual plaintiffs are engaged in political speech, or “speech on matters of public concern” which “fall[s] within the core of First Amendment protection”.

The First Amendment does not offer the same level of protection to obscenity, defamation, fraud, incitement, and speech incident to criminal conduct, but there is no allegation that the individual plaintiffs in this case were engaged in such speech.

As to whether the speech is in a public forum, the court says the forum “must be owned or controlled by the government” and that the forums purpose must be consistent with the use, meaning that a government speaker can’t effectively shut down an establishment that was not intended to host its message.

The court goes on to define the forum at issue here as the individuals ability to read and interact with the presidents tweets. The court specifically excludes the ability to send tweets from the real Donald Trump account from the forum analysis and therefore from the case.

The court then finds that the remaining defendants do have control over the real Donald twitter account, including “controlling who has the power to retweet or reply”. The court further concludes that their control is governmental in nature, since the account is used in connection with Mr. Trump’s official actions as president of the United States.

In defending, the president claims that blocking is not “state action” or action by the government which triggers a First Amendment analysis. It is true that the Constitution only applies to the government and not to private individuals. Since twitter is a private entity, the president argues, and every twitter user has the ability to block, then this is private action by a private actor and not government action by a government actor.

The court does not agree. “the parties exercising control here are a public official, the President, and his subordinate, Scavino, acting in his official capacity.” Indeed, when the government exercises its “right to exclude others from entering and using [its] property,” it is deploying “one of the most essential sticks in the bundle of rights that are commonly characterized as property,”

The court does agree that a purely personal twitter account one that does not impress with the trappings of office and exercise of authority and position, would not implicate public forum analysis. “but those are hardly the facts of this case.”

Because the president and Scavino are currently using the account for communications of a government nature, public forum protections are implicated.

The court goes on to define the public forum as only those aspects of the account over which the defendants have control, and not other parts over which they don’t have control, such as the moderation of the conversation thread.

The court then spends several pages analyzing whether the use of the public forum is consistent with its purpose, structure and intended use, and analysis designed to protect the forum from being burdened by the government speech, or from a private forum being turned into a public forum simply because the government was engaged in speech.

The court concludes that the record establishes that the President, sometimes “[w]ith the assistance of Mr. Scavino,” uses the content of his tweets “to announce, describe, and defend his policies; to promote his Administration’s legislative agenda; to announce official decisions; to engage with foreign political leaders; to publicize state visits; to challenge media organizations whose coverage of his Administration he believes to be unfair; and for other statements, including on occasion statements unrelated to official government business.”

The court again rejects that the replies and retweets created by each conversation are part of the government speech and public forum, meaning only the parts actually controlled by the defendants are subject to the protections of the First Amendment public forum doctrine.

The court then covers the three classifications of public fora. First, traditional public fora are places which by long tradition or by government fear have been devoted to assembly and debate. Spaces such as “streets and parks have immemorially been held in trust for the use of the public and have [long] been used for purposes of assembly communicating thoughts between citizens and discussing public questions.”

Absent a well-established history of dedication to public use, however, a forum cannot be a traditional public forum.

“A second category consists of public property which the state has opened for use by the public as a place for expressive activity.” “To create a forum of this type, the government must intend to make the property ‘generally available,’ to a class of speakers.”

We “look[] to the policy and practice of the government to ascertain whether it intended to designate a place not traditionally open to assembly and debate as a public forum.”

Finally, a space that is susceptible to forum analysis but is “not by tradition or designation a forum for public communication,” is termed a “nonpublic forum,”

Applying this three-part classification framework to the interactive space, we can first conclude that the interactive space of a tweet sent by @realDonaldTrump is not a traditional public forum. There is no historical practice of the interactive space of a tweet being used for public speech and debate since time immemorial, for there is simply no extended historical practice as to the medium of Twitter. While the Supreme Court has referenced the “vast democratic forums of the Internet,” has described the internet (including social media platforms such as Twitter) as one of “the most important places (in a spatial sense) for the exchange of views,” and has analogized the internet to the “essential venues for public gatherings” of streets and parks, the lack of historical practice is dispositive”

Accordingly, we consider whether the interactive space is a designated public forum, with “governmental intent” serving as “the touchstone for determining whether a public forum has been created.” Intent “must be inferred from a number of objective factors, including: [the government’s] policy and past practice, as well as the nature of the property and its compatibility with expressive activity.”

Here, these factors strongly support the conclusion that the interactive space is a designated public forum. “The @realDonaldTrump account is generally accessible to the public at large without regard to political affiliation or any other limiting criteria,” “any member of the public can view his tweets,” and “anyone [with a Twitter account] who wants to follow the account [on Twitter] can do so,” unless that person has been blocked.

The interactivity of Twitter is one of its defining characteristics, and indeed, the interactive space of the President’s tweets accommodates a substantial body of expressive activity. Taking these factors together, we conclude that the interactive space of a tweet from the @realDonaldTrump account constitutes a designated public forum.

The court then turns to whether there has been viewpoint-based discrimination against the plaintiffs through the blocking.

“[T]he extent to which the Government can control access depends on the nature of the relevant forum,” so we next consider whether the blocking of the individual plaintiffs is permissible in a designated public forum.

“Regulation of [a designated public forum] is subject to the same limitations as that governing a traditional public forum” — restriction are permissible “only if they are narrowly drawn to achieve a compelling state interest.”

“[v]iewpoint discrimination . . . is presumed impermissible when directed against speech otherwise within the forum’s limitations.” (“When the government creates such a forum, in either a literal or ‘metaphysical’ sense, some content- and speaker-based restrictions may be allowed.

However, even in such cases, what we have termed ‘viewpoint discrimination’ is forbidden.”

Here, the individual plaintiffs were indisputably blocked as a result of viewpoint discrimination. The record establishes that “[s]hortly after the Individual Plaintiffs posted the tweets . . . in which they criticized the President or his policies, the President blocked each of the Individual Plaintiffs,” and defendants do “not contest Plaintiffs’ allegation that the Individual Plaintiffs were blocked from the President’s Twitter account because the Individual Plaintiffs posted tweets that criticized the President or his policies.”

The continued exclusion of the individual plaintiffs based on viewpoint is, therefore, impermissible under the First amendment.

Even if the interactive space associated with the content of a tweet constituted a nonpublic forum, the exclusion of the individual plaintiffs would not withstand First Amendment scrutiny. “Control over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.” The blocking of the individual plaintiffs, which resulted from their “tweets that criticized the President or his policies,” is not viewpoint-neutral, and is therefore impermissible “regardless of how the property is categorized under forum doctrine,” 

Defendants contend that the blocking of the individual plaintiffs is permissible because the President retains a personal First Amendment interest in choosing the people with whom he associates and retains the right not to engage with (i.e., the right to ignore) the individual plaintiffs. Further, they argue, the individual plaintiffs have no right to be heard by a government audience and no right to have their views amplified by the government. While those propositions are accurate as statements of law, they nonetheless do not render the blocking of the individual plaintiffs constitutionally permissible.

To be clear, a public official does not lose his First Amendment rights upon taking office. “The interest of the public in hearing all sides of a public issue,” an interest that the First Amendment seeks to protect, “is hardly advanced by extending more protection to citizen-critics than to [public officials].”

That is, no set of plaintiffs could credibly argue that they “have a constitutional right to prevent [government officials] from exercising their own rights” under the First Amendment.

Further, “[n]othing in the First Amendment or in [the Supreme] Court’s case law interpreting it suggests that the rights to speak, associate, and petition require government policymakers to listen or respond to individuals’ communications on public issues.”

No First Amendment harm arises when a government’s “challenged conduct is simply to ignore the [speaker],” as the Supreme Court has affirmed that “[t]hat it is free to do.”

Stated otherwise, “[a] person’s right to speak is not infringed when government simply ignores that person while listening to others,” or when the government “amplifies” the voice of one speaker over those of others.

Nonetheless, when the government goes beyond merely amplifying certain speakers’ voices and not engaging with others, and actively restricts “the right of an individual to speak freely [and] to advocate ideas,” it treads into territory proscribed (prohibited) by the First Amendment.

Consideration of Twitter’s two features for limiting interaction between users — muting and blocking — is useful in addressing the potentially conflicting constitutional prerogatives of the government as listener on the one hand and of speakers on the other, as muting and blocking differ in relevant ways. As Twitter explains, “[m]ut[ing] is a feature that allows [a user] to remove an account’s Tweets from [the user’s] timeline without unfollowing or blocking that account.”

Blocking, by contrast, goes further. 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 elimination 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 blocked user’s right to speak in a discrete, measurable way.

Muting equally vindicates the President’s right to ignore certain speakers and to selectively amplify the voices of certain others but — unlike blocking — does so without restricting the right of the ignored to speak.

Given these differing consequences of muting and blocking, we find unpersuasive defendants’ contention that a public official’s muting and blocking are equivalent, and equally constitutional, means of choosing not to engage with his constituents. Implicit in this argument is the assumption that a reply to a tweet is directed only at the user who sent the tweet being replied to.

Were that so, defendants would be correct in that there is no difference between the inability to send a direct reply (as with blocking) and the inability to have that direct reply heard by the sender of the initial tweet being responded to (as with muting). But this assumption is not supported in the record: a reply is visible to others and may itself be replied to by other users. The audience for a reply extends more broadly than the sender of the tweet being replied to, and blocking restricts the ability of a blocked user to speak to that audience. While the right to speak and the right to be heard may be functionally identical if the speech is directed at only one listener, they are not when there is more than one.

In sum, we conclude that the blocking of the individual plaintiffs as a result of the political views they have expressed is impermissible under the First Amendment. While we must recognize, and are sensitive to, the President’s personal First Amendment rights, he cannot exercise those rights in a way that infringes the corresponding First Amendment rights of those who have criticized him.

To be sure, we do not suggest that the impact on the individual plaintiffs (and, by extension, on the Knight Institute) is of the highest magnitude. It is not. But the law is also clear: the First Amendment recognizes, and protects against, even de minimis harms.

even though defendants are entirely correct in contending that the individual plaintiffs may continue to access the content of the President’s tweets, and that they may tweet replies to earlier replies to the President’s tweets, the blocking of the individual plaintiffs has the discrete impact of preventing them from interacting directly with the President’s tweets, thereby restricting a real, albeit narrow, slice of speech. No more is needed to violate the Constitution.

We turn, then, to the question of the proper remedy to be afforded here. Defendants suggest that we categorically lack authority to enjoin the President, a proposition we do not accept. Stated simply, “separation-of-powers doctrine does not bar every exercise of jurisdiction over the President of the United States.”

Rather, “it is . . . settled that the President is subject to judicial process in appropriate circumstances,” Clinton v. Jones, and the Supreme Court has expressly rejected the notion of “an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances,” id. at 704 (quoting United States v. Nixon).

However, “a court, before exercising jurisdiction, must balance the constitutional weight of the interest to be served against the dangers of intrusion on the authority and functions of the Executive Branch.”

In this case, the intrusion on executive prerogative presented by an injunction directing the unblocking of the individual plaintiffs would be minimal. Any such injunction would not direct the President to execute the laws in a certain way, nor would it mandate that he pursue any substantive policy ends. Even accepting that the President’s blocking decisions in the first instance are discretionary, the duty to unblock — following a holding that such blocking was unconstitutional — would not be, as the President must act in compliance with the Constitution and other laws.

We need not, however, ultimately resolve the question of whether injunctive relief may be awarded against the President, as injunctive relief directed at Scavino and declaratory relief remain available. While we find entirely unpersuasive the Government’s parade of horribles regarding the judicial interference in executive affairs presented by an injunction directing the President to comply with constitutional restrictions, we nonetheless recognize that “[a]s a matter of comity, courts should normally direct legal process to a lower Executive official even though the effect of the process is to restrain or compel the President.” Injunctive relief directed against Scavino would certainly implicate fewer separation-of-powers concerns,

Accordingly, though we conclude that injunctive relief may be awarded in this case — at minimum, against Scavino — 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,”

a declaration will therefore issue: the blocking of the individual plaintiffs from the @realDonaldTrump account because of their expressed political views violates the First Amendment.

“It is emphatically the province and duty of the judicial department to say what the law is,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803), and we have held that the President’s blocking of the individual plaintiffs is unconstitutional under the First Amendment. Because no government official is above the law and because all government officials are presumed to follow the law once the judiciary has said what the law is, we must assume that the President and Scavino will remedy the blocking we have held to be unconstitutional.

We hold that the speech in which Plaintiffs seek to engage is protected by the First Amendment and that the President and Scavino exert governmental control over certain aspects of the @realDonaldTrump account, including the interactive space of the tweets sent from the account. That interactive space is susceptible to analysis under the Supreme Court’s forum doctrines, and is properly characterized as a designated public forum. The viewpoint-based exclusion of the individual plaintiffs from that designated public forum is proscribed by the First Amendment and cannot be justified by the President’s personal First Amendment interests.

Signed, Naomi Reice Buchwald, United States District Judge, Southern District of New York

So because the president uses his personal twitter account for official business, he can’t limit the public’s ability to see his tweets. He can mute individuals he does not wish to interact with but his use of Twitter’s block feature violates the protections of the First Amendment to the United states Constitution.

This is a kind of neat precedent to be set in that it means that any time a government official engages in official or political speech using an online forum, it can be considered government speech and a protected forum and its users protected from viewpoint-based discrimination under the First Amendment.

I, personally, find it interesting that the judge was able to find a happy medium in the mute feature, allowing the president to continue his behavior while also allowing the protections of the First Amendment for individual users.

What do you think? Do you think the president should have used the mute feature long ago instead of stubbornly insisting on blocking? I didn’t previously mention that the court had suggested the mute feature months ago, even foreshadowing this specific decision.

Do you think the protections for the First Amendment go too far? Should the president be allowed to block people on twitter?

I’ve seen some confusion where people try to interpret this decision as saying that all of Twitter is a government forum and therefore twitter, and otherwise private entity, cannot block, ban, or otherwise censor users on its platform.

That is too broad of an interpretation of the case. As the judge said, because twitter is a private entity, what matters is how the government actor uses it, and since Pres. Trump is using it for official business, he has turned his account, and only his account, into a public forum that must be protected from viewpoint-based discrimination.

This would apply to other government accounts using Twitter in a similar fashion. But it would also not apply to accounts owned by politicians but only used for personal purposes.

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Have a great weekend and, my fellow Americans, have a great Memorial Day weekend.


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