Future Tense

Appeals Court Confirms That Trump Can’t Block Critics on Twitter

Trump holding a phone to his ear as he takes calls from children in the East Room of the White House for a Santa Claus event on Dec. 24, 2018.
Trump takes phone calls from people he hasn’t blocked on Twitter in December of last year. Chip Somodevilla/Getty Images

President Donald Trump can make fun of his enemies all he wants on Twitter (for the most part). But one thing he can no longer do is block them. A federal appeals court ruled Tuesday that it’s unconstitutional for the president to ban critics from interacting with his Twitter account. The case was brought by seven individuals, represented by the Knight First Amendment Institute at Columbia University, who sued Trump for blocking them after they expressed criticism of the president and his policies. The decision affirms a 2018 ruling from Judge Naomi Reice Buchwald of the U.S. District Court for the Southern District of New York. The seven plaintiffs and more than 70 other accounts were unblocked by Trump after Buchwald’s ruling last summer.

Still, Trump continues to block multiple users, including Travis Nichols, the media director of Greenpeace USA. He was originally blocked in 2017 after replying to Trump’s tweets repeatedly with a GIF of Greenpeace activists unfurling a banner that read “Resist” over the White House. After three months of responding to Trump’s tweets with the GIF regularly, Nichols says the president blocked him. “It was probably good for me. I didn’t need to be looking at that trash every day,” Nichols told me over a direct message on Twitter. “But for AMERICA, it should be my goddamn right to look at that trash every day. I would like the choice.”

Though Twitter is a private company, Trump uses his personal account to conduct all kinds of presidential business, like his recent invitation to meet North Korean dictator Kim Jong-un at the Korean Demilitarized Zone. Trump’s Twitter account, according to Buchwald, operates as a public forum. Specifically, she said, the area under the tweets, where users can like or reply or retweet a comment from the president, is an “interactive space where Twitter users may directly engage with the content of the President’s tweets.” Buchwald reasoned that Trump was engaged in “viewpoint discrimination” because the Twitter users who were blocked by Trump were engaging in political speech, which is protected by the First Amendment, on an interactive forum that the president uses to communicate with the public. The three-judge panel in the New York appeals court agreed.

So why are some people still unable to see Trump’s tweets? By continuing to block people, “technically Trump isn’t violating a court order, because the court’s ruling only applies to the parties before it, meaning just specifically the plaintiffs in the case,” said Katie Fallow, a senior attorney at the Knight First Amendment Institute who represented the plaintiffs. That means someone else could bring another lawsuit against Trump to complain that he’s still unblocking people. But Trump won’t have to stop blocking people completely. “The government has indicated to us that the president will not unblock people who he blocked before he became president,” said Fallow. “And then there were some other people who didn’t have a copy of the tweet that they think got them blocked, and the Department of Justice basically implied that they were not going to unblock those people.”

So if you angered Trump prior to his inauguration, or if you don’t have evidence that you were blocked because you were engaging in political speech, you might not see a change. That might make your own Twitter experience more pleasant, but when lawmakers block people from voicing dissent, it’s a form of censorship.

Future Tense is a partnership of Slate, New America, and Arizona State University that examines emerging technologies, public policy, and society.