Lawyers Are Duking It Out In Court Over Whether It’s Unconstitutional For Trump To Block People On Twitter

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AP/Evan Vucci

The district court judge who's weighing arguments over whether President Trump violated seven people's constitutional rights when he blocked them from his @RealDonaldTrump Twitter account so far seems skeptical of Trump's attorney's defense.

In a Manhattan federal court on Thursday, US District Judge Naomi Reice pressed Michael Baer, an attorney with the Department of Justice representing President Trump, on whether Twitter was different from a public town hall, where government officials can't do something like cut the microphone to block unwanted opinions.

“Once it is a public forum, you can’t shut somebody up because you don’t like what they’re saying,” said Reice. “Why is that possibly OK?”

The plaintiffs in the case, who are represented by Katie Fallow, a senior attorney at the Knight First Amendment Institute at Columbia University, say the president violated their First Amendment rights by imposing a viewpoint-based restriction on their participation with his Twitter account — which they argue is a public forum.

Over March, May, and June 2017, the president blocked the seven accounts, which tweeted critical comments of him and his policies. This has barred these users from interacting with the president's @realdonaldtrump account. And if they're logged in to their accounts, they also can't see or reply to his tweets, view his list of followers or followed accounts, or use Twitter to search for his tweets.

“Obviously he wants to suppress our speech,” plaintiff Philip Cohen, a University of Maryland professor of sociology who was blocked by Trump's @realdonaldtrump Twitter account in June, told reporters outside the court house. “He wants to look out at the world on Twitter and see that everyone agrees with him and everybody thinks he's great and the fact is that's not true and that's why he blocks — just literally blocks — us so we won't be seen to be expressing our views against him, and I think that's outrageous.”

Philip Cohen

BuzzFeed News/Leticia Miranda

Fallow argued in court on Thursday that Trump’s account is a public forum that he uses to announce policies or policy proposals. Blocking certain users for mocking or criticizing the president, Fallow argued, is like Trump standing at the door of a public event and picking who's allowed to enter and participate in the debate.

“It becomes an echo chamber for only supporters to be heard, which creates a false impression of public opinion,” Fallow told BuzzFeed News.

But Baer argued the @realdonaldtrump account is not a public forum. He suggested Trump's Twitter account is similar to a Trump appearance at a public event. The president would be able to say “no thank you” to a protester, for example, or decide to tune someone out in a conversation, he said. The person looking to speak directly to Trump might not be able to engage with him, but they would still be able to discuss their views with anyone else.

In this analogy, the president is simply “choosing not to engage with a few individuals,” he said.

It should not be considered a “state action” if @realdonaldtrump blocks certain Twitter users because the president is “self-participating in a marketplace of ideas,” Baer argued. To say that Trump's Twitter account is a public forum would conflate tweets sent by the president with responses that tweet generates in a thread, which isn't government-controlled, Baer said.

Judge Reice said she is “not suggesting every citizen has a right that their communication to the government will be read by someone, but a citizen has a right to send communication.”

She suggested that the two parties consider settling the case by agreeing to allow the president to mute certain users, suggesting that otherwise, there's a “risk of a law being made which is not a law you want on the books.”

Fallow told BuzzFeed News that her clients would be open to settling for a muting option if Trump unblocked them on Twitter.

“But if all public officials muted unwelcome users, wouldn't that defeat the purpose of Twitter?” she asked.



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