NEW YORK — President Donald Trump will have to go to the U.S. Supreme Court if he wants to block critics from his personal Twitter account.
The 2nd U.S. Circuit Court of Appeals on Monday rejected by a 7-2 vote his lawyers’ request for all of the court’s active judges to conduct a rare hearing to reconsider a 2nd Circuit panel’s finding that Trump cannot block critics.
The three-judge panel had concluded in July that the president’s daily pronouncements and observations were overwhelmingly official in nature. It said Trump violated the First Amendment whenever he blocked a critic to silence a viewpoint.
Justice Department lawyers had insisted that the president’s @realDonaldTrump account is a personal account he created in 2009, long before he became president. They said it should be treated like any personal property belonging to Trump.
Two 2nd Circuit judges recently appointed to the Manhattan court by Trump dissented from the 2nd Circuit’s decision to reject what is called an “en banc” hearing, a proceeding that generally occurs less than once a year. Circuit Judges Michael H. Park and Richard J. Sullivan said in the dissent that the First Amendment “does not include a right to post on other people’s personal social-media accounts, even if those people happen to be public officials.”
They also concluded that public officials who express views on social-media accounts do not engage in “state action” when they do so. And they warned that the 2nd Circuit ruling will make public officials “less able to defend themselves from hate and harassment.”
Writing for the majority who rejected the en-banc request, Judge Barrington D. Parker cited tweets in which Trump threatened Iran and Turkey to show social media had been used “as a tool of governance and as an official channel of communication on an interactive public platform.”
“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,” he said.
Parker also disputed the suggestion that a ban on banning critics would stifle Twitter use by Trump and others, saying Trump in recent months has been posting tweets at over three times the rate he was tweeting in 2017.
“Twitter is not just an official channel of communication for the President; it is his most important channel of communication,” Parker wrote.
A spokeswoman for the Justice Department said it is reviewing the opinion.
The legal case was brought by the Knight First Amendment Institute at Columbia University. It had sued on behalf of seven individuals blocked by Trump after criticizing his policies.
Jameel Jaffer, the Knight Institute’s executive director, said in a statement that the “ruling is an important affirmation of core First Amendment principles as applied to new communications technology.”