Trump Unblocks Twitter Users, Appeals Ruling That He Can’t Block Twitter Users

President Trump has unblocked Twitter users, but at the same time his lawyers are appealing the ruling that he can't block Twitter users.

Last month a Federal District Court Judge in the Southern District of New York ruled that President Trump could not block users from accessing his personal Twitter account in a ruling that raised more than a few eyebrows. Now, the Trump Administration has appealed that ruling to the Second Circuit Court of Appeals even as Trump appears to be unblocking users:

WASHINGTON — The White House has unblocked the accounts of seven Twitter users who sued President Trump for barring them from viewing or responding to his tweets, even as the administration has decided to appeal a federal judge’s ruling in May that Mr. Trump violated their constitutional rights.

The decision to unblock the plaintiffs from interacting with Mr. Trump’s account was a gesture of constitutional modesty by the Trump administration at a time when he and his lawyers have been making increasingly aggressive assertions of executive powers. The judge had not ordered the president to unblock them as part of the ruling, instead leaving it up to the White House to decide how to respond to her ruling.

Late on Monday, the Justice Department informed the Knight First Amendment Institute at Columbia University, which is representing the plaintiffs, that it had unblocked their accounts. But around the same time, the department filed notice in court that it was appealing the ruling to the United States Court of Appeals for the Second Circuit, in New York.

Jameel Jaffer, the executive director of the Knight Institute, said the organization looked forward to defending the May ruling, by Judge Naomi Reice Buchwald of the Southern District of New York, before the appeals court.

“We’re pleased that the White House unblocked our clients from the president’s Twitter account but disappointed that the government intends to appeal the district court’s thoughtful and well-supported ruling,” he said in a statement.

The case centers on novel issues raised by how the First Amendment applies to social media platforms used by government officials to interact with the public. The seven plaintiffs are Twitter users who were blocked from viewing or interacting with Mr. Trump’s account, @realdonaldtrump, after criticizing or mocking him.

As I noted at the time, Judge Buchwald’s opinion in the case was, as Eugene Volokh notes, merely a Declaratory Judgment and did not order the President or anyone in the White House to unblock any of the Plaintiffs who brought the lawsuit. In part this is because Declaratory Judgments are, as their name implies, typically merely a declaration of the rights of the various parties in the case that is often not accompanied by a specific remedy, something that is usually left for a later stage of the proceedings should the Plaintiff not act in accordance with the ruling. At the same time, though, proceeding into the Court of Appeals while at the same time continuing to not comply with the ruling that the Court had made would have been a confrontational approach to take that the appellate court Judges would likely not have looked kindly on and it could have had an impact on how the approach the ultimate issue in the case, the question of whether or not the First Amendment requires the President or any other government official who maintains what amounts to a personal social media account to not prevent people from accessing their feeds just as any other user can.

In any case, my initial skepticism about Judge Buchwald’s ruling remains:

As a Twitter user, Trump should have as much right to make use of the methods to service provides to prevent trolls and other persons from showing up in one’s timeline as are available to other users. Blocking someone, or muting them (which prevents a user from showing up in one’s mention column but doesn’t prevent them from seeing the tweets of the person who muted them), does nothing to prevent a user from stating their opinions on Twitter, nor does it prevent others from reading their tweets. Furthermore, there are numerous ways for a user to get around being blocked by an individual user to see what they are tweeting. One method would be to create a separate account on the service, which can be done for free rather easily. With respect to the President himself, another method is to follow an account such as @RealPressSecBot which restyles all of the tweets from Trump’s tweets in the form of White House Press Releases, a nod to the comment that former White House Press Secretary Sean Spicer made last year that the President’s tweets constitute a statement of official White House policy. Arguing that Trump has violated someone’s First Amendment rights by blocking or muting them on Twitter is, it seems to me, akin to arguing that he is obligated to accept the friend request of every American citizen on Facebook or make his private cell phone number available to the general public. Such an argument, of course, would not get very far in a court of law largely because the First Amendment doesn’t mean that someone has a right to be heard by a specific person, but rather that they have a right to speak freely without fear of punishing. Blocking or muting a Twitter account does nothing to infringe on that right.

On the other hand, it’s worth noting that there are methods short of blocking that a Twitter user can utilize to prevent a person from appearing in their timeline. For those of you unfamiliar with how Twitter works, one user can communicate with another by simply replying to one of their messages, or by sending a message that includes their Twitter handle. Such messages would appear as “mentions” on whatever device or means the user is using to access Twitter. There are, however, ways to prevent people from being able to communicate you as a Twitter user. One method is to “mute” a user, which prevents their messages to you from showing up in your “Mentions.” This function, however, doesn’t prevent them from following you or otherwise being able to read your tweets. The other method is to “block” a user, which both prevents their messages to you from appearing in your timeline and prevents them from seeing anything you tweet. There is no way for someone to know if they’ve been muted by a user, but if they have been blocked this can be easily discerned by going to a user’s homepage, where they would see a message saying that they’d been blocked from viewing that users activity. In this respect, it’s worth noting that Judge Buchanan referenced the ability to mute users in the hearing that was held in this matter back in June, although she didn’t reference it in her opinion. Presumably, though, muting a user would be acceptable even if it were a government official like Trump since it doesn’t prevent a user from reading that person’s tweets.

One question this does raise, of course, is whether or not Trump or whoever operates the settings of his Twitter account for him has taken advantage of other Twitter features to prevent Tweets from previously blocked users from showing up in the President’s timeline. As I noted above, there is at the moment no way for a user to know if someone has muted them. Unlike blocking, a muted user can still access the timeline of the official in question, the only difference is that the official would not be able to see any messages sent to him from a user who has been muted. Theoretically at least, this still raises some of the same First Amendment claims that the Plaintiff asserted in the underlying lawsuit because it interferes with their ability to address the elected official in question. Whether or not Judge Buchwald’s ruling would also apply to muting a user is a question for another case, but probably one that will never be addressed unless Twitter changes its settings so that users would know if they’ve been muted by another user.

It will be interesting to see how the Second Circuit deals with these issues. To address one issue that may occur to some, the fact that Trump is apparently unblocking users does not necessarily make the case itself moot and thus likely to be dismissed by the Court of Appeals without a ruling on the merits. Since Judge Buchwald did not formally order the President to unblock the Plaintiffs or anyone else, the fact that he has apparently gone forward and done so anyway does not undermine the legal conclusions that Judge Buchwald reached nor does it diminish the necessity for the Court of Appeals to address those issues. This is especially true given the fact that the legal conclusion reached in the District Court could end up being influential in deciding cases that may be brought in the future by Americans who have been blocked by Trump or other public officials with a Twitter presence. Given that, it seems clear that it would be best for the Court of Appeals, and potentially the Supreme Court, to address the issue head-on.

FILED UNDER: Donald Trump, First Amendment, Law and the Courts, Politicians, US Politics, ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. MBunge says:

    I guess they don’t make authoritarian fascists like they used to.

    Mike

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  2. TM01 says:

    @MBunge:
    You got that right.

    Trump is definitely no Obama!

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  3. An Interested Party says:

    I guess they don’t make authoritarian fascists like they used to.

    Indeed…the Orange Blob’s one saving grace is that he is a lazy, bumbling ignoramus who would do far more damage if he was merely competent…

    Trump is definitely no Obama!

    So very, very true, but not in the way you think…

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  4. Mister Bluster says:

    Trump is a self confessed sexual molestor of women and commits adultery with porn stars.
    Obama is a hell of a lot better human being than that!

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  5. James Joyner says:

    I share your view of this, Doug.

    Americans have a right to access public communications of their President but they’re surely not absolute. For example, President Obama frequently appeared on ESPN to do basketball picks and the like. Sure, it’s on basic cable/satellite but it’s still not available to everyone.

    Americans also have a right to send communications to their President. But that right is far more diluted. They can’t just walk into White House anymore. Hell, they can’t even access the White House grounds to protest. They can leave a telephonic message (or, at least, they could until recently) but they were never going to get put through to the President. Even ordinary mail or electronic mail just goes into holding queues, perhaps to be sifted through by a staffer. Surely, there’s no right to @ the President.

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  6. TM01 says:

    @An Interested Party:

    At least we know that Trump respects the rule of law and adheres to court decisions.

    Dictator Barack just ignored the courts when it suited his thirst for power.

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  7. Jen says:

    It’s good to know that there’s nothing else going on in the world, allowing time, money, and energy to be spent on…this.

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  8. OzarkHillbilly says:

    @TM01:

    At least we know that Trump respects the rule of law and adheres to court decisions.

    Thanx for the laugh. It is nice to know that there is no end of the stupid.

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  9. James Pearce says:

    Unlike blocking, a muted user can still access the timeline of the official in question, the only difference is that the official would not be able to see any messages sent to him from a user who has been muted.

    Glad the new rules are so much easier to understand than that old “be decent to each other” stuff.

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  10. Kathy says:

    @James Joyner:

    For example, President Obama frequently appeared on ESPN to do basketball picks and the like. Sure, it’s on basic cable/satellite but it’s still not available to everyone.

    But Obama didn’t appear multiple times a day on ESPN, nor did he ever claim whatever he said on ESPN was official policy or policy announcements. In other words, it wasn’t Obama’s content being pushed on ESPN, but ESPN pushing its content featuring Obama.

    Twitter is not available to someone who doesn’t have a phone or a PC or lacks an internet connection. The Cheeto is not under any obligation to provide anyone with the means to access Twitter, and no one claims that he is.

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  11. Andre Kenji de Sousa says:

    @James Joyner:

    Americans have a right to access public communications of their President but they’re surely not absolute. For example, President Obama frequently appeared on ESPN to do basketball picks and the like.

    Obama was not doing official policy on ESPN. No politician should be allowed to block the people that pay their salary.

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  12. Mister Bluster says:

    Trump respects the rule of law
    Horse hockey!
    Trump has openly confessed to committing sexual assault.
    Of course you don’t care that sexual assault is against the law.

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  13. Mister Bluster says:

    President Pud does not respect the law.
    ‘Take the guns first, go through due process second’

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  14. dmhlt says:

    @TM01:

    “At least we know that Trump respects the rule of law and adheres to court decisions.”

    Doesn’t pay contractors
    https://www.usatoday.com/story/news/politics/elections/2016/06/09/donald-trump-unpaid-bills-republican-president-laswuits/85297274/

    Defrauded students at Trump University
    https://abcnews.go.com/Politics/ny-attorney-general-slams-trump-university-fraud-beginning/story?id=39552689

    Trump campaign violated federal law by using a Trump Organization speechwriter
    https://www.washingtonpost.com/news/the-fix/wp/2016/07/20/did-the-trump-campaign-violate-federal-law-by-using-a-trump-organization-speechwriter/?noredirect=on

    Violated federal law by claiming proceeds from various Trump products would go to charity, but NO evidence that Trump ever donated the money to charity
    https://www.politico.com/story/2016/06/donald-trump-charities-fraud-laws-224510

    Trump used money donated for charity to buy himself a Tim Tebow-signed football helmet
    https://www.washingtonpost.com/news/post-politics/wp/2016/07/01/donald-trump-used-money-donated-for-charity-to-buy-himself-a-tim-tebow-signed-football-helmet/?noredirect=on

    Trump’s campaign violated election law soliciting donations from FOREIGN officials
    http://www.slate.com/blogs/the_slatest/2016/06/30/looks_like_trump_s_campaign_has_already_violated_election_law.html

    ETC., ETC., ETC.

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  15. Mister Bluster says:

    Kim Jong Trump disrespects the rule of as he calls for the assassination of his opponent in the 2016 Presidential Election.

    “She goes around with armed bodyguards like you have never seen before. I think that her bodyguards should drop all weapons. They should disarm. Right? Right?” Trump said during a campaign rally here as the crowd cheered the idea. “I think they should disarm immediately. What do you think? Yes? Yes. Yeah. Take their guns away. She doesn’t want guns. … Let’s see what happens to her. Take their guns away, okay? It would be very dangerous.”
    Washington Post

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