AP NEWS

Appeals court tilts against Trump in Twitter fight

March 26, 2019

NEW YORK (AP) — Judges on a federal appeals court in New York seemed skeptical Tuesday as they heard a lawyer argue that President Donald Trump can legally ban critics from his Twitter account.

The three-judge panel of the 2nd U.S. Circuit Court of Appeals did not immediately rule on whether to uphold a lower-court judge’s conclusion that Trump is violating the First Amendment when he blocks critics.

District Judge Naomi Reice Buchwald’s decision last year came after the Knight First Amendment Institute at Columbia University sued on behalf of seven individuals blocked by Trump after they criticized his policies.

Attorney Jennifer Utrecht, arguing for the president, noted that @realDonaldTrump, with nearly 60 million followers, was created long before Trump was president. She said Trump sometimes tweets official announcements but acts in a private capacity when he blocks individuals.

Circuit Judge Peter W. Hall cited the president’s repeated use of the social media platform to make official announcements.

Hall noted that Trump in recent days had tweeted that he was revoking sanctions against North Korea, signing a proclamation pertaining to Israel, announcing a Federal Reserve Board appointment and sharing his White House celebration with hockey’s Stanley Cup winners.

“Those aren’t official actions?” Hall asked.

Utrecht conceded official statements are regularly made, but argued that does not change the private nature of Trump’s decision to block certain individuals from his account.

“Are you seriously urging us to believe that the president is not acting in his official capacity when he is tweeting?” asked Circuit Judge Barrington D. Parker.

Parker said Trump’s tweets occur amid a “worldwide dialogue on matters of transcendent public importance.”

“And what the blocking does ... is subtract from that discussion points of view that the president doesn’t like. Why isn’t that just a quintessential First Amendment violation?” the judge asked.

Utrecht responded that Trump’s critics can still engage in Twitter debates with others about subjects the president tweets about.

“The fact that someone can go down the street and express a point of view is not a defense to government suppressing a particular point of view in a forum,” Parker said.

Hall agreed with Parker.

“If it’s more burdensome at all, if you have to move down the street, it violates the First Amendment,” Hall said.

Circuit Judge Christopher F. Droney noted that it might be possible to conclude Trump’s Twitter account is a public forum by the fact the U.S. Justice Department represents him.

“Your very presence here represents the fact that this is a public forum,” he told Utrecht.

Jameel Jaffer, the Knight Institute’s executive director, faced some tough questions from the judges as well, though not to the same degree.

At one point, Parker asked if the president could block racist or anti-Semitic material that others might send him.

Jaffer said he probably could.