• by Wendy Davis  @wendyndavis, August 26, 2019

The White House is asking a federal appellate court to reconsider its recent ruling that President Donald Trump violated the First Amendment by blocking critics on Twitter.

The ruling, issued last month by a three-judge panel of the 2nd Circuit Court of Appeals, is “fundamentally misconceived,” the Justice Department argues in papers filed late last week.

“The @realDonaldTrump account belongs to Donald Trump in his personal capacity, and his ability and decision to exclude individuals from that personal property are likewise independent of his public office,” the Justice Department writes.

The administration is asking the 2nd Circuit to re-hear the case with a full court -- meaning all or most of the court's 14 judges.

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 violated the critics' free speech rights.

The Knight Institute argued that the @realDonaldTrump account is a "public forum" -- meaning that it is comparable to city streets, parks and other locales where the government can't prevent people from speaking based on their views.

U.S. District Court Judge Naomo Reice Buchwald in New York agreed with the Knight Institute and ruled that Trump acted unconstitutionally by blocking people based on their viewpoints.

The Justice Department then appealed to the 2nd Circuit, arguing that Trump acts in a “personal” capacity, as opposed to an official one, when he blocks people on Twitter.

The appellate judges rejected that position in an opinion issued last month, ruling that evidence of the account's official nature is “overwhelming.”

They noted that since becoming president, Trump has used the account almost daily to communicate about his administration. “He uses the account to announce 'matters related to official government business,' including high-level White House and cabinet level staff changes as well as changes to major national policies” the opinion states.

The Justice Department is now pressing the argument that Trump uses the account in a personal capacity when he blocks people.

“He began use of the account in 2009, long before he became President, and he will continue to have control over the account after he leaves public office. His ability to exclude others from this personal property is likewise independent of his office,” the lawyers write. “That authority was conferred on him by Twitter, not by the government.”

The Justice Department also compares Twitter to a physical space, suggesting that Trump's use of Twitter to issue public policy statements is akin to an official making an announcement from his or her residence. The administration's lawyers argue that just as politicians can control who visits their residences, they can decide who to block on Twitter.

“An official’s decision to exclude someone from his personal residence would not exercise the authority of the government, even if he were giving official statements on that property on that day,” the Justice Department writes. “And what is true for real property is likewise true for a social media account.”