By Rich Ting and Andy Hoover
From Franklin Roosevelt’s “fireside chats” on radio to John F. Kennedy’s mastery at the televised debate, politicians have made use of the latest communications technology to reach people with their message. Today, elected officials as different as Donald Trump and Alexandria Ocasio-Cortez have mastered social media as a platform.
But communication between an elected official and the people is a two-way street. Thanks to the free speech clause of the First Amendment, politicians cannot eliminate viewpoints they don’t want to hear.
A federal court in New York this week affirmed the right of the people to share their views with elected officials. In a case known as Knight First Amendment Institute at Columbia University v. Trump, the United States Court of Appeals for the Second Circuit upheld a lower court’s decision that President Trump violated the free speech clause of the First Amendment by blocking certain users from his Twitter account.
In its ruling, the court made a distinction that the ACLU of Pennsylvania has been making over the last two years as this issue has popped up — the relevance of the First Amendment hinges on whether or not the social media account is the person’s official government page or a personal or campaign page. Blocking users from a social media account violates the First Amendment if the account is an official, government-run account with interactive features accessible to the public. The court noted that “not every social media account operated by a public official is a government account,” and whether a social media account is a government account is a fact-specific inquiry informed by how the official describes and uses the account, to whom features of the account are made available, and how others regard and treat the account. The decision in Knight, for example, does not apply to personal or campaign social media accounts.
With respect to President Trump’s Twitter account, the court noted several factors indicating the account is an official, government-run account. For example, the account is registered to “Donald J. Trump, ‘45th President of the United States of America, Washington, D.C.,’” the President uses the account on an almost daily basis to communicate and interact with the public about his administration, the President uses the account to engage with foreign leaders and announce foreign policy decisions, and the account was intentionally opened up for public discussion. The court found that President Trump, therefore, “is not entitled to censor selected users because they express views with which he disagrees.”
As a private real estate mogul, Donald Trump could block whomever he pleased from his Twitter account. But when he made the decision to run for public office, he lost that luxury. He and other elected officials cannot eliminate people from public discussion based on their viewpoints. Our constitution forbids it, and our democracy demands that those viewpoints can be expressed without obstruction from public officials.
Rich Ting is a volunteer attorney with the ACLU of Pennsylvania. Andy Hoover is ACLU-PA’s director of communications.