President Donald
Trump doesn't violate the First Amendment when he blocks critics on Twitter, because he is acting in a “personal” capacity, and not a governmental one, a Department of Justice attorney
told federal appellate judges Tuesday.
“If there's no state action, there can't be a constitutional violation,” Justice Department lawyer Jennifer Utrecht told 2nd Circuit Judges
Peter Hall, Barrington Parker Jr., and Christopher F. Droney during a hearing in New York Tuesday morning.
The Justice Department is asking the 2nd Circuit to reverse an opinion by U.S.
District Court Judge Naomi Reice Buchwald, who ruled last year that Trump
engages in unconstitutional viewpoint discrimination when he blocks critics.
Utrecht acknowledged at the hearing that Trump uses Twitter to make official
statements, but said he doesn't act in an official capacity when he blocks people. “Certainly there is speech made from @realDonaldTrump account regularly that does
constitute official statements, but that does not change the nature of blocking,” she said.
Some of the judges on the panel appeared skeptical of the Justice Department's argument
stance.
“Are you seriously urging us to believe that the president is not acting in his official capacity when he is tweeting?” Parker asked Utrecht.
Parker added that
Twitter users can engage in a “worldwide dialogue” on public matters. “What the blocking does ... is subtract from that discussion points of view that the president doesn't
like,” he said. “Why isn't that just a quintessential First Amendment violation?”
The legal battle dates to 2017, when the Knight Institute at Columbia University sued Trump
on behalf of seven critics who were blocked by him on Twitter. The organization argued that Trump was violating the critics' free speech rights.
Jameel Jaffer, executive director of the Knight
Institute, told the judges that online platforms are comparable to public forums like town halls, where the government can't engage in viewpoint discrimination.
“Public officials across
the country now use social media to communicate with and to hear from their constituents,” he said. “And these social media accounts often serve the same purposes as forums like city
counsel meetings or school board meetings or town halls.”
Jaffer also asked the judges to reject the Justice Department's argument that Trump uses Twitter in an official capacity when he
posts policy statements, but acts in a private capacity when he blocks people.
“I'm not sure that these two things can be separated in that way,” Jaffer said, adding that the users
represented by the Knight Institute were blocked after disagreeing with Trump's official policy positions.
“One of them was blocked after he complained about the president's immigration
policies, another was blocked after complaining about health care policies,” Jaffer said. “Even if you focus myopically on the reasons why the individuals were blocked in this case, they
were blocked for having criticized the president about his policies.”
The battle over Trump's Twitter account is only one of several recent rights over public officials' use of social
media.
In one high-profile example, earlier this year the 4th Circuit Court of Appeals ruled that an official from Loudon County, Virginia violated a constituent's rights by briefly banning
him on Facebook. In that matter, Phyllis Randall, chair of the Loudoun County Board of Supervisors, banned county resident Brian Davison after he made a post on Randall's page about alleged
corruption and conflicts of interests at the local school board.