The right to Trump tweets

The Second Circuit has affirmed a district court decision holding that President Trump cannot block his critics on Twitter. Plaintiffs wanted to get Trump’s tweets directly and contended that their inability to view, retweet, and reply to Trump’s tweets limited their ability to participate with other members of the public in the comment threads that appear below the President’s tweets. The court agreed in a 29-page opinion that I have embedded below via Scribd. FOX News reports on it here.

I wondered about possible workarounds plaintiffs could have used. The court addressed that issue as well, holding that available workarounds unconstitutionally burdened plaintiffs’ right to participate in the give-and-take on Twitter. Having been blocked by Keith Ellison on Twitter myself, I feel their pain.

President Trump, incidentally, has complied with the district court decision while the case was on appeal. All parties involved will carry on as they do now.

The dispute strikes me as vaguely comical, but I think the three-judge panel correctly applied settled First Amendment doctrine (not the same as the First Amendment, but Steve can take that up another day). And one more point: I’m not sure the court intended its concluding paragraph as a message to municipal authorities and college administrators throughout the land, but then again it may have:

The irony in all of this is that we write at a time in the history of this nation when the conduct of our government and its officials is subject to wide‐open, robust debate. This debate encompasses an extraordinarily broad range of ideas and viewpoints and generates a level of passion and intensity the likes of which have rarely been seen. This debate, as uncomfortable and as unpleasant as it frequently may be, is nonetheless a good thing. In resolving this appeal, we remind the litigants and the public that if the First Amendment means anything, it means that the best response to disfavored speech on matters of public concern is more speech, not less.

I’ll drink to that.

18-1691_opn by Scott Johnson on Scribd

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