Last week, the Trump Administration acknowledged in a legal filing that the President has been blocking users on Twitter for criticizing him or his policies. The filing was part of a stipulation in an ongoing lawsuit brought by The Knight Institute for the First Amendment. The Institute has been assisting a group of individual Twitter users that have been blocked by Trump, claiming that @RealDonaldTrump is an official government account akin to a “digital town hall”, and that blocking users from the platform is a violation of their First Amendment rights.

While some legal scholars are skeptical that the suit will be successful, a federal district court case decided in late July suggests that it is likely the case will succeed on the merits. In Davison v. Loudoun County Board of Supervisors, Phyllis Randall, the chair of the Board of Supervisors in Loudoun County, Virginia, blocked one of her constituents (the plaintiff) on Facebook after he posted a comment alleging corruption within the county’s school board. Randall essentially conceded that she had blocked the plaintiff “because she was offended by his criticism of her colleagues in the County government”, which the court held to be viewpoint discrimination prohibited by the First Amendment.

Critical to this decision were the findings that led the court to decide that Randall’s use of the Facebook page titled “Friends of Phyllis Randall” was considered action under the color of state law. Key factual findings included that she asked constituents to visit the page, she was listed as a government official in the about section, and, perhaps most relevant to the Trump lawsuit, that she routinely used the page for official proclamations.

Because President Trump has already conceded that he does in fact block users based on criticism, he must now successfully assert that his use of Twitter does not violate the First Amendment because he is not acting under color of state law when he sends out tweets. The administration has claimed that @RealDonaldTrump is solely the President’s personal Twitter account. However, there is a strong argument to be made that Trump uses his Twitter account for official proclamations, akin to those made by Randall in Loudoun County. Examples of these include tweets for his announcement of Christopher Wray’s nomination for FBI director, and his announcement that transgender individuals would no longer be allowed to serve in the United States military. Additionally, Trump tweeted on July 1 that his use of social media is “MODERN DAY PRESIDENTIAL”, and on July 6, then White House press secretary Sean Spicer stated in a daily briefing that the President considered his tweets to be “official statements”.

It certainly seems that the Trump Administration will struggle to support its assertion that the Twitter account @RealDonaldTrump has not been used by the President in his capacity as a government official. The lawsuit’s next scheduled steps include defendants’ motion for summary judgment to be submitted by October 13, 2o17, and a response to the motion from the plaintiffs by November 3, 2017.

–Mackenzie Hayes

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