Knight First Amendment Inst. at Columbia Univ. v. Trump

953 F.3d 216 (Mem)

KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY, Rebecca Buckwalter, Philip Cohen, Holly Figueroa, Eugene Gu, Brandon Neely, Joseph Papp, and Nicholas Pappas, Plaintiffs-Appellees,

v.Donald J. TRUMP, President of the United States and Daniel Scavino, White House Director of Social Media and Assistant To the President, Defendants-Appellants,Sarah Huckabee Sanders, White House Press Secretary, Defendant.

No. 18-1691-cv

United States Court of Appeals, Second Circuit.

March 23, 2020

For Plaintiffs-Appellees: Jameel Jaffer (Katherine Fallow, Caroline DeCell, Alexander Abdo, Meenakshi Krishnan, on the brief), Knight First Amendment Institute at Columbia University, New York, NY, Jessica Ring Amunson (Tassity Johnson, Tali R. Leinwand, on the brief), Jenner & Block, Washington, D.C.

For Defendants-Appellants: Jennifer Utrecht (Scott McIntosh, on the brief), Attorneys, Appellate Staff, Civil Division, for Joseph H. Hunt, Assistant Attorney General, Hashim M. Mooppan, Deputy Assistant Attorney General, Washington, D.C.

Present: ROBERT A. KATZMANN, Chief Judge, JOSÉ A. CABRANES, ROSEMARY S. POOLER, PETER W. HALL, DENNY CHIN, RAYMOND J. LOHIER, JR., RICHARD J. SULLIVAN, JOSEPH F. BIANCO, MICHAEL H. PARK, Circuit Judges.

Debra Ann Livingston and Susan L. Carney, Circuit Judges, took no part in the consideration or decision of this petition.

Barrington D. Parker, Circuit Judge, statement with respect to the denial of rehearing en banc.

This case arises from the President’s use of the @realDonaldTrump Twitter account (the "Account") as a primary vehicle for his official communications. He uses this account to make official statements on a wide variety of subjects, many of great national importance. The public, in turn, is able to respond to and engage with the President and other users on Twitter. In Knight First Amendment Inst. at Columbia Univ. v. Trump , we concluded that this dialogue creates a public forum. 928 F.3d 226 (2d Cir. 2019). We also concluded that 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.

The decision is unusual only in that it involves Twitter, a relatively new form of public, interactive communication, and the President. However, the opinion is consistent with every precedent of this Court, and the dissent does not demonstrate otherwise. It is, I respectfully suggest, a straightforward application of state action and public forum doctrines, congruent with Supreme Court precedent. The dissent misconstrues the applicable law and overstates the scope of the panel’s holding.

The dissent’s main concern—and its primary argument—is that the Account is the President’s personal account and therefore is not a public forum and its use does not constitute state action. This argument is refuted by even a cursory perusal of examples of the tweets in question. Consider these recent ones:

These tweets are published by a public official clothed with the authority of the state using social media as a tool of governance and as an official channel of communication on an interactive public platform. The panel decision discussed the President’s use of the Account in an official capacity in detail. See Knight , 928 F.3d at 232. 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. Id. at 234.

I.

The dissent contends that the President’s use of the Account to conduct official business does not amount to state action. While the dissent does not dispute that the Account is regularly used as an official channel of communication, it argues that no state action is involved because the President does not exercise "some right or privilege created by the State" when he blocks accounts on Twitter. Knight First Amendment Inst. at Columbia Univ. v. Trump , 928 F.3d 226 (2d Cir. 2019) (Park, J., dissenting from the denial of rehearing en banc, at 226) [hereinafter Dissent ]. Satisfaction of this condition is said to be required by our decision in Flagg v. Yonkers Sav. & Loan Ass’n, FA , 396 F.3d 178, 186 (2d Cir. 2005).

I do not agree. The state action analysis of the panel was correct. When the President tweeted about Iran he was speaking in his capacity as the nation’s chief executive and Commander-in-Chief. If that is not a "right or privilege created by the State" it is difficult to imagine what might be. By the same token, when he receives responses from the public to the Account, and when he blocks responders whose views he disfavors, he remains the President. The critical question in this case is not the nature of the Account when it was set up a decade ago. The critical question for First Amendment purposes is how the President uses the Account in his capacity as President.

The Supreme Court in Lugar v. Edmondson Oil Co. identified the test for state action as whether the conduct allegedly causing the deprivation of a federal right is "fairly attributable to the State." 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). Edmondson Oil instructs us that, where the claim of a constitutional deprivation is directed against a party whose official character is such as "to lend the weight of the State to his decisions," the conduct is state action because it is "fairly attributable to the State." Id. The President quintessentially qualifies as a party whose "official character ... lends the weight of the State to his decisions." Id. That, of course, holds true of his current use of Twitter.¹

The dissent further contends that "the panel decision blurred the line between actions by public officials in the performance of their official duties and actions ‘in the ambit of their personal pursuits.’ " Dissent at 228. This ignores the detailed discussion the panel provided concerning the "substantial and pervasive government involvement with, and control over," the Account. Knight , 928 F.3d at 235. That discussion noted that the President and his staff use the Account as an official channel of communication with the public on matters of public concern. Press Secretary Sean Spicer confirmed that the President’s tweets are official statements of the President.

White House staff members are involved in the drafting and posting of tweets to the Account, and the National Archives and Records Administration requires the preservation of the President’s tweets as official records under the Presidential Records Act. Id. None of this is in dispute.

The dissent states that because "blocking" is a feature available to all users, it cannot be state action. Dissent at 226–27. The panel addressed this argument when the Appellants made it, and the dissent’s reiteration breaks no new ground. See Knight , 928 F.3d at 235-36. What the dissent never seriously engages with is that when the President blocks users, he blocks them from access to, and interaction with, an official account .

The decision was careful to address the areas that generate the dissent’s anxiety. We did not consider or decide whether a public official violates the Constitution by excluding persons from a personal, private social media account. Nor did we decide how the First Amendment impacts private social media accounts used by public officials. Knight , 928 F.3d at 236. We held only that the First Amendment does not permit a government official who utilizes a social media platform for official purposes to exclude persons from an otherwise open dialogue merely because they expressed views disfavored by the official.

II.

In Packingham v. North Carolina Justice Kennedy discussed the relationship between Twitter and the First Amendment. He said that "[w]hile in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the vast democratic forums of the Internet in general, and social media in particular. ... [O]n Twitter, users can petition their elected representatives and otherwise engage with them in a direct manner. ... In short, social media users employ these websites to engage in a wide array of protected First Amendment activity on topics as diverse as human thought." ––– U.S. ––––, 137 S. Ct. 1730, 1735-36, 198 L.Ed.2d 273 (2017). If Justice Kennedy is right, as I believe he is, then the dissent is wrong.

Keeping the Supreme Court’s words in mind, the panel concluded that the "interactive space" of the Account was a public forum for the purposes of the First Amendment. Knight , 928 F.3d at 237. The dissent articulates two concerns with our public forum analysis. Its first objection is to the "disaggregation" of the President’s tweets from the interactive features of the Account. Dissent at 229. The second objection is that the President did not change the way he uses Twitter after he took office, and therefore he could not have intended to create a public forum. Dissent at 228–29, 230. Again, I respectfully disagree.

A.

First, the dissent worries that the panel "strayed from" this Court’s precedent (which is never specifically identified) when it distinguished between the President’s tweets, which it categorizes as government speech, and the ‘interactive space’ accessible to the public, which the panel concluded constituted a public forum. Dissent at 226. The point of departure of our analysis was that "whatever the challenges of applying the Constitution to ever-advancing technology, ‘the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary’ when a new and different medium for communication appears." Knight , 928 F.3d at 237 (quoting Brown v. Entm’t Merchants Ass’n , 564 U.S. 786, 790, 131 S.Ct. 2729, 180 L.Ed.2d 708 (2011) ).

A simple analogy to physical public fora makes it clear that the distinction between a tweet and its interactive space...