Knight v. Trump: Second Circuit Sets Rules on Blocking Followers from Social Media Accounts
In the highly anticipated case involving President Trump’s Twitter account, the U.S. Court of Appeals for the Second Circuit found that the President’s blocking of followers on his @realDonaldTrump account was unconstitutional viewpoint based discrimination. In its unanimous opinion in Knight First Amendment Institute v. Donald J. Trump, the Second Circuit affirmed the lower court in full, finding the account to be a public forum because it was opened as an “instrumentality of communication” for “indiscriminate use by the general public.” In deciding whether the President’s Twitter account constituted a public forum, the Court examined the policy, practice and intent in operating the account.
What does the decision mean?
The Second Circuit’s decision makes clear that where government officials open their social media accounts to the public as a way of communicating about official business, then their accounts will be analyzed under the public forum doctrine, which prohibits selectively blocking “persons from an otherwise-open online dialogue because they expressed views with which the official disagrees.”
What doesn’t the decision mean?
The Second Circuit opinion clearly points out that not every social media account operated by an elected official will necessarily be a public forum. The outcome of that inquiry will be informed by how the official describes and uses the account, to whom features of the account are made available, and how others, including government officials and agencies, regard and treat the account.
What should elected officials and government entities do next?
Elected officials and government entities that wish to regulate participation on social media accounts should draft guidelines for posting and removing comments. To pass constitutional muster, factors to consider include making sure that comments will not be hidden or deleted based on viewpoint, users will be blocked only for repeated violations and for a limited period of time, and personnel responsible for managing social media accounts will implement guidelines in a viewpoint-neutral and non-discriminatory manner.
You can learn more at the International Municipal Lawyers Association Conference.
For more information about this case and the state of the law regarding this nuanced area of constitutional concern, please join Deborah Fox on September 21 when she presents at the annual conference of the International Municipal Lawyers Association on the topic of “First Amendment and Social Media: What are the Emerging Rules of Engagement?”