A lawsuit claiming that President Donald Trump is violating the Constitution by blocking members of the public from following his Twitter account could radically reshape First Amendment law and threaten public officials’ use of new social media platforms, the Justice Department argued Friday.
The Trump administration leveled the arguments in response to a suit filed last month on behalf of seven Twitter users who were blocked by the president on his personal account and allege that the blocking runs afoul of their free speech rights.
The users want a federal judge to order them to be unblocked while the litigation goes forward, but Justice Department attorneys are opposing that move. In a new court filing, government lawyers urged U.S. District Judge Naomi Buchwald to not even consider it.
"It would send the First Amendment deep into uncharted waters to hold that a president’s choices about whom to follow, and whom to block, on Twitter—a privately run website that, as a central feature of its social-media platform, enables all users to block particular individuals from viewing posts—violate the Constitution," Justice Department attorney Michael Baer wrote. "More broadly, such a novel holding would cast doubt on the ability of government officials to direct their communications to particular audiences."
Baer also notes that the blocking doesn’t prevent anyone from reading Trump’s tweets.
"Plaintiffs can continue to read all of the tweets from the @realDonaldTrump account—in real time—while this litigation pends. The @realDonaldTrump account is public, and it is therefore viewable by anyone who is not logged in to Twitter," the government lawyer said. "Any impairment of Plaintiffs’ speech during this litigation is minimal."
However, the suit filed by the Knight First Amendment Institute argues that the constitutional violation also flows from the fact that users who are blocked by a particular account can’t readily join in the discussion threads linked to a particular tweet.
The government is also arguing that an injunction is inappropriate in the case because courts generally don’t impose them on the president personally. For instance, when a federal appeals court recently ruled against a key part of Trump’s travel ban executive order, the judges lifted the injunction against the president, even though it remained in force against lower-ranking officials.
In the Twitter fight, it’s unclear who besides the president could be ordered to remove blocks on accounts. The suit does name Trump’s social media director Dan Scavino Jr. and since-resigned White House press secretary Sean Spicer as defendants in an apparent effort to address that issue.
Buchwald, a Clinton appointee, has not yet scheduled a hearing in the case.