• by Wendy Davis , Staff Writer @wendyndavis, August 20, 2020

President Donald Trump has the same right to block critics on Twitter as to exclude them from Trump Tower.

That's according to the U.S. Department of Justice, which on Thursday asked the Supreme Court to intervene in a battle over whether Trump violates the First Amendment by blocking critics on social media.

The government argues that the @realDonaldTrump account belongs to the president in a “personal” capacity.

“Although President Trump is currently a public official, the @realDonaldTrump account belongs to him in his personal capacity, not his official one,” the Justice Department argues in a petition seeking Supreme Court review.

“The First Amendment does not give individual members of the public a right of access to a government official’s personal property merely because the official chooses to use his property in part to make announcements about official policies,” government lawyers add.

They go on to argue that Trump's blocked critics “can no more insist on being given access to the President’s tweets on @realDonaldTrump than they could insist on being given entry to Trump Tower if the President chose that as the venue where he made important official announcements to preferred members of the public and press.”

Should the Supreme Court hear the case, the ruling could set a new standard governing public officials' use of social media.

In the last few years, there have been several other high-profile fights over politicians' use of social media. Among other examples, Rep. Alexandria Ocasio-Cortez (D-N.Y.) was sued for blocking New York state former Assemblyman Dov Hikind. She did so after he criticized her for saying the government was running “concentration camps” on the border.

Last November, she unblocked Hikind and he withdrew his lawsuit.

The battle over Trump's Twitter account 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 said the blocks violated users' free speech rights, arguing that Trump's Twitter account was a public forum -- comparable to city streets, parks and other spaces where the government can't censor people based on their views.

U.S. District Court Judge Naomi Reice Buchwald in New York agreed with the Knight Institute and ruled that Trump acted unconstitutionally by blocking social media users 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 First Amendment prohibits the government -- but not private individuals -- from censoring criticism.

Last year, a three-judge panel of the 2nd Circuit rejected the White House's position, ruling that evidence of the account's official nature was “overwhelming.”

The panel judges noted that since becoming president, Trump has used the account almost daily to communicate about his administration -- including to announce new policies and cabinet level staff changes.

The Justice Department then urged the 2nd Circuit for a new hearing in front of all or most of the circuit's judges.

That court denied that request, with two judges -- Michael Park and Richard Sullivan -- dissenting. They agreed with the Justice Department that Trump did not exercise “state authority” when he blocked critics.

The Justice Department is now pressing that argument to the Supreme Court.

Trump “created and began frequent use of that account in 2009, well before taking public office,” the lawyers write. “In contrast to the @WhiteHouse and @POTUS accounts, over which he may exercise control only by virtue of his office, he will continue to have control over the @realDonaldTrump account after his term of office has completed.”

The Justice Department also argues that the blocks have little impact on critics, arguing that they can still access Trump's tweets by logging out.

“Blocking’s only material effect on respondents’ speech is that they may not speak directly to or on the President’s own platform for speech by replying to or retweeting his tweets using their preferred accounts in a manner that appears on his account’s timeline,” the attorneys write. “Those are not cognizable First Amendment interests.”

The Knight Institute disagrees.

“This case stands for a principle that is fundamental to our democracy and basically synonymous with the First Amendment: government officials can’t exclude people from public forums simply because they disagree with their political views,” Kameel Jaffer, executive director of the Knight Institute stated. “The Supreme Court should reject the White House’s petition and leave the appeals court’s careful and well-reasoned decision in place.”