Justice Department attorneys representing President Donald Trump said in a Manhattan federal court on Tuesday that the president personally blocks people on his @realDonaldTrump Twitter account. Trump’s lawyers disclosed this to argue that Trump uses the platform’s blocking feature in a personal capacity—as opposed to a governmental one—and thus is not violating his critics’ free speech rights.
Last year, the Knight First Amendment Institute sued the president on behalf of seven people whom he had blocked on Twitter. The plaintiffs contended that Trump’s account is a public forum through which constituents can direct political speech at an elected official, and that the Trump is violating the First Amendment when he blocks users from engaging with his tweets because of their viewpoints. During the trial, Justice Department lawyers surprisingly admitted that Trump blocked some users because they “criticized the President or his policies,” which bolstered the case that such behavior amounts to unconstitutional viewpoint discrimination. U.S. District Judge Naomi Reice Buchwald ultimately agreed and ruled last May that the @realDonaldTrump account was illegally blocking other users.
In the Trump lawyers’ resulting appeal, they maintain that he is not “wielding the power” of the government when he blocks people, but is rather making a personal decision. The three-judge panel reportedly treated that argument with skepticism, asking whether Trump was making an official pronouncement when he tweeted his decision to revoke sanctions on North Korea. (The president also notably announced the transgender military ban on Twitter.) Jennifer Utrecht, a DOJ attorney, responded that Trump is acting in an official capacity when he tweets, but then added that he’s acting in a personal one when he blocks people. A judge followed up and asked whether Trump had been “entering the blocks” himself, or if his aides did it. Utrecht confirmed that it was Trump.
There is at least one other person besides the president who has access to the @realDonaldTrump account: the White House’s social media director, Dan Scavino. Scavino has said in the past that he occasionally posts from the account, converting dictations from Trump into tweets. It can at times be difficult to discern who sent which tweet, though the New York Times reports that Scavino’s tend to be more anodyne. In the initial court filings, the plaintiffs also seemed unsure whether Scavino and other aides were blocking critics on the account on Trump’s behalf. Utrecht’s statements suggest they weren’t.
This is one of the first cases addressing social media blocking by government officials. The only other time that a judge has found the practice to be unconstitutional was in 2017, when a Virginia court ruled that the chair of the Loudoun County Board of Supervisors, Phyllis Randall, was not allowed to block a critic from her Facebook page for 12 hours and delete an unfavorable comment he’d posted there.