- The Washington Times - Monday, March 23, 2020

President Trump on Monday lost his second bid in a federal appeals court to block his critics on Twitter in disregard of their First Amendment complaints.

Mr. Trump’s use of Twitter created a public forum and he cannot exclude people because they disagree with him, a three-judge panel had ruled last year for the 2nd U.S. Circuit Court of Appeals.

The president’s legal team attempted to have the full court review that ruling, which held that Mr. Trump violated the First Amendment free-speech rights of the blocked individuals, but the panel declined to reconsider Monday on a 7-2 vote.

“When the president creates such a public forum, he violates the First Amendment when he excludes persons from the dialogue because they express views with which he disagrees,” wrote Judge Barrington Parker, an appointee of President Nixon, in a statement supporting the court’s action.

Underscoring the public nature of the tweets, Judge Parker noted several tweets the president fired off about the Iranian regime, warning Iran that if it strikes, the U.S. would retaliate.



The judge reasoned that the president is a public official “with the authority of the state” using an interactive public platform as a channel of communication.

“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.

Jameel Jaffer, executive director at the Knight Institute which argued the case, said he was pleased the original ruling against Mr. Trump will remain in place.

“The ruling is an important affirmation of core First Amendment principles as applied to new communications technology,” he said.

Nine judges on the 2nd Circuit considered rehearing the challenge, with two of the active judges on the circuit not taking part.

Though the majority declined to reconsider, two Trump-appointees on the bench, Judge Michael Park and Judge Richard Sullivan, said they would have heard the case. They noted that the president created his personal Twitter account six years before taking office.

They also reasoned that Twitter is a privately owned company, so a public official’s use is not an exercise of official authority.

“This decision strays from our precedents, extends the scope of the First Amendment to encompass the personal social-media activity of government officials, and therefore merits review by the whole court,” they wrote in a dissenting opinion.

The 4th U.S. Circuit Court of Appeals also ruled last year against a public official in a similar First Amendment challenge brought by a Virginia resident who had been temporarily blocked on Facebook.

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