Tweets as Free Speech

When is a Twitter block a violation of free speech rather than a social media power play? According to a U.S. District Court, when the president of the United States is the one pushing the button.

UMD sociology Professor Philip Cohen was one of seven plaintiffs who prevailed Wednesday in a case that may have broad implications for how public officials interact with their constituents on social media.

They had joined up with the Knight First Amendment Institute to sue President Donald Trump and several members of his administration for blocking them on Twitter and therefore preventing them from seeing or responding to one of Trump’s primary forms of communication.

Cohen, who often tweeted critical memes in response to Trump’s messages at @realDonaldTrump, was blocked by the president in June 2017. He says his responses were an attempt to rally administration opponents and show Trump himself that people are opposed to his agenda.

“(Twitter) really is like a public square,” he says. “It’s like the government put up a sign that says, ‘public debate here.’”

U.S. District Judge Naomi Reice Buchwald of the Southern District of New York ruled that the president’s Twitter account is a “public forum” and that blocking users from engaging with it is a violation of the First Amendment.

While not issuing an injunction to unblock the users—a legally thorny issue because of separation of powers between the judicial and executive branches—Buchwald wrote, “no government official—including the President—is above the law, and all government officials are presumed to follow the law as has been declared.”

It’s a possible landmark moment for establishing rules in the Wild West of social media, which has taken on heightened importance among public officials of all levels, and particularly in the current Oval Office. But the ramifications are uncertain, as just in March, a U.S. district judge in Kentucky denied a preliminary injunction sought by the ACLU to stop Gov. Matt Bevin from blocking followers on Facebook and Twitter.

“It has the potential to be precedent setting. District court is often just the first step, but it’s a very, very important first step,” says Lucy Dalglish, dean of UMD’s Philip Merrill College of Journalism, former executive director of the Reporters Committee for Freedom of the Press and a nationally known First Amendment advocate. “We’re going to have to figure out how to adapt our First Amendment jurisprudence to social media realities.”

Cohen says he is still blocked by Trump, and the administration is yet to appeal the decision. Buchwald did note that an injunction could be leveled on Dan Scavino, the White House social media director, since he has the power to unblock Twitter users.

“Me getting unblocked,” Cohen says, “is less important than the principle.”