The 2nd Circuit Court of Appeals upheld its decision Monday that President Donald Trump cannot block critics on Twitter, rejecting his long-shot bid to reargue the case.
Trump had asked for a nine-judge panel to reconsider the ruling. A majority rejected that bid.
Judge Barrington Parker, writing for the majority, said Trump’s use of Twitter was fundamental to his duties.
“Excluding people from an otherwise public forum such as this by blocking those who express views critical of a public official is, we concluded, unconstitutional viewpoint discrimination,” Parker wrote.
“Twitter is not just an official channel of communication for the President; it is his most important channel of communication.”
Two Trump-appointed judges, Richard Sullivan and Michael Park, dissented, writing that the president’s Twitter account did not constitute a public forum and that his use of it did not represent a “state action.”
They argued that important constitutional questions were unresolved.
“It is not clear from the panel’s decision when President Trump’s Twitter activity crossed into state action,” Park wrote. “Did it happen on Inauguration Day? Upon a particular ‘official announcement’ from @realDonaldTrump? And how many ‘official’ tweets does it take to convert ‘personal’ tweets into state action? The panel decision raises difficult questions but provides little guidance for officials today or to litigants, lawyers, and judges tomorrow.”
The Knight First Amendment Institute, which brought the suit on behalf of seven Twitter users blocked by Trump, hailed the ruling.
“We’re pleased that the full appeals court will leave the panel’s original ruling in place,” said Jameel Jaffer, Knight Executive Director. “The ruling is an important affirmation of core First Amendment principles as applied to new communications technology.”
The 2nd Circuit rarely grants requests for “en banc” hearings before large panels of judges.
“When he receives responses from the public to the Account, and when he blocks responders whose views he disfavors, he remains the President,” Parker wrote for the majority. “The critical question in this case is not the nature of the Account when it was set up a decade ago. The critical question for First Amendment purposes is how the President uses the Account in his capacity as President.”
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