I wrote about what it’s like to sue the president after we went to court in early March. Now I get to write about what it’s like to win a lawsuit against him. (Spoiler alert: It’s beyond surreal.)
The case began in July 2017. Seven of us so-called “blockees,” represented by Columbia University’s Knight First Amendment Institute, filed suit against President Donald J. Trump. We argued that he and his communications staffers were violating the First Amendment by blocking users from his Twitter feed solely on the basis of our viewpoints. Our ask of the court was simple: Please clarify for the White House that blocking us is unconstitutional, and get them to unblock us. a.k.a. Set Trump straight.
We made three major First Amendment arguments. First, the @realdonaldtrump Twitter feed used by the president is a public forum, meaning that we can’t be excluded because we expressed critical views, and that excluding our views distorts the public forum for people who’ve not been blocked. Second, blocking people denies them access to important, presidential information being dispensed via Twitter; that’s not allowed when the basis for blocking is viewpoint. Finally, shutting users out of a communications channel that is available to literally everyone else just because of their viewpoints violates blockees’ rights to “petition the government for grievances.”
Oral argument was March 8; the ruling came down May 23. It’s a major win for the First Amendment. And us plaintiffs, of course. If I had to describe my mood in a word, it’d be “euphoria.” Not in the I-won-a-sports-ball game way. The euphoria I experienced (am experiencing) has everything to do with being amazed at the privilege of being involved in defending the First Amendment and succeeding.
Reading the opinion was surreal from a purely personal perspective, and enthralling from my legal nerd perspective. I’m a big fan of a clear first paragraph, and Judge Naomi Reice Buchwald delivers:
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.
Why is this ruling a big deal in the general sense?
Public officials are relying on social media more and more to communicate to constituents. As that shift accelerates, it’s imperative that courts recognize that the First Amendment protects against viewpoint discrimination in digital public forums like the @realdonaldtrump account just as it does in more traditional town halls. An official’s Twitter account is often the central forum for direct political debate with and among constituents, a tenet of democracy.
It’s perhaps an even bigger deal given the current political environment, rife with questions of liability, justiciability and indictability. Opting only to state what the law is rather than explicitly direct action, Judge Buchwald writes:
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.
Her ruling is a timely reminder that the separation of powers, the foundation of American democracy, is alive and well: Courts have the authority to order the executive branch to follow the Constitution.
What’s next?
In an ideal world, the White House would just follow the court’s order. If that doesn’t happen, the next step would be to ask the court to compel Trump and his communications team to comply, a.k.a. seek an injunction. And, of course, if the Department of Justice challenges the ruling, the appeal would go to the U.S. Court of Appeals for the Second Circuit—which hears cases from Connecticut, New York and Vermont.
Whatever happens, the opinion released Wednesday marks a huge win for the First Amendment.
