As Trump Defends Blocking Critics on Twitter, ICAP Argues for First Amendment Protections in the Digital Age

October 19, 2018

WASHINGTON, D.C. – Georgetown Law’s Institute for Constitutional Advocacy and Protection (ICAP) argued in an amicus brief filed today that President Trump’s use of Twitter to silence dissenters violates the First Amendment.

The brief was filed on behalf of distinguished First Amendment scholars, including Erwin Chemerinsky, Lyrissa Lidsky, and Larry Tribe, in support of a lawsuit brought by Columbia’s Knight First Amendment Institute to challenge the President’s blocking of critics on his @realDonaldTrump Twitter account. The case is currently pending on appeal in the Second Circuit Court of Appeals after Judge Naomi Reice Buchwald of the U.S. District Court for the Southern District of New York issued an opinion in May 2018 in favor of the plaintiffs, agreeing with them that the President’s actions violate the First Amendment.

In the brief, ICAP establishes that the @realDonaldTrump Twitter account constitutes a digital-age public forum because President Trump has opened up his Twitter account to comment by other Twitter users—except those whom he has blocked for their criticism of him—and has utilized Twitter’s interactive features to encourage and engage in dialogue with other users. A litany of legal precedent supports the argument that censoring speech because of one’s political viewpoint violates the First Amendment.

The brief highlights the importance of applying established First Amendment principles to emerging technologies such as social media platforms, explaining that “Twitter has changed where political discourse occurs in this country.” Because of the importance of social media, the brief argues, “It is crucial that courts do not allow politicians to censor comments they do not like and thereby skew their constituents’ perceptions of the debates unfolding in the public eye.”

“Elected officials have a constitutional responsibility to allow their critics to speak in public forums, whether at an in-person town hall meeting or online, free from reprisals for the views they express,” ICAP’s Executive Director and Visiting Professor of Law Joshua Geltzer said. “President Trump has violated the First Amendment by censoring those who disagree with him and his policies, thereby creating a distorted impression of the public debate occurring on Twitter every day.”

ICAP’s brief brings attention to the risks to political dialogue and free speech if public officials are permitted to silence voices on social media sites by drawing on prominent examples of  the practices of authoritarian regimes. These regimes seek to “cultivate a false impression that political leaders are supported by the public, thereby warping people’s understanding of how those leaders are really viewed by others and aiding those regimes’ efforts to quash democratic impulses.” It’s a model that, ICAP warns, President Trump will be free to continue emulating if his actions are allowed to stand.

The brief concludes by asking the court to uphold the district court’s decision that the “interactive space on the @realDonaldTrump Twitter account is a public forum, and that defendants violated plaintiffs’ First Amendment rights by excluding the individual plaintiffs from that forum on the basis of the viewpoints they expressed.”

The full brief is available here.