To be in Twitter jail is to be punished for posting. The punishment is not posting, for a while or possibly forever. (In this way, Twitter jail might be good.)
To be blocked by @realdonaldtrump—to be able to post, while being unable to see the posts of the President of the United States, who will also never see your posts—is something else entirely: a violation of the United States Constitution, an appeals court ruled on Tuesday.
Among the many peculiarities of the Trump presidency is his use of Twitter as an official organ of state. On Twitter, Trump conducts state business. He makes announcements, hypes parades and campaign rallies, threatens allies, and says he might start a nuclear war. You know—Trump stuff, but also United States stuff.
Donald Trump also apparently reads the replies and sees what’s afoot in his mentions, because just like anyone else suffering from an @-attack, Donald Trump is handy with the block button.
And every time Trump blocks somebody, he violates the First Amendment and commits “viewpoint discrimination,” a federal appeals court unanimously ruled on Tuesday.
The ruling followed a similar setback for Donald Trump’s online freedom last year, in a lawsuit brought by the Knight First Amendment Institute at Columbia University, on behalf of seven Twitter users whose posts were too spicy for Trump’s sensitive palette.
That ruling, in which a judge ordered the president to unblock certain critics, was appealed by Trump’s Justice Department (the one you pay for).
The Department of Justice (DOJ) is “disappointed” and is “exploring options,” according to a statement sent to reporters on Tuesday. It’s unclear if Trump will order the matter of his Twitter account brought before the Supreme Court, but it’s certainly possible.
For the meantime, under the guarantee to free speech and free assembly in the U.S. granted by the Bill of Rights, officials who use a social media account for “government purposes” cannot exclude members of the public from viewing tweets and sending replies.
To do so would be to exclude them from an “otherwise open dialogue,” wrote U.S. Court of Appeals for the Second Circuit Judge Barrington D. Parker in the ruling, as per The New York Times.
Parker recognized that posting online is frequently “uncomfortable” and “unpleasant,” but if “the First Amendment means anything, it means the best response to disfavored speech on matters of public concern is more speech, not less.”
The decision follows another ruling last year, in which another lower federal court ruled that Trump needed to unblock certain accounts, no matter how unruly or rude they may be in slagging the president online.
That ruling is binding, but apparently not so binding.
Trump can still mute anyone he wants, the court ruled. Just like any other politician, he doesn’t have to listen to you, but you have to be able to listen to him should you so choose.
Beyond a public slap for the petulant president and a brief ha-ha moment enjoyed at his expense, the case is a “high-profile legal test” for how government is conducted in the digital age, according to The Washington Post. It offers some still rare but increasingly clear legal guidance for how elected officials can use platforms and tools that can be described as privately owned public forums.
Another earlier case involved the Facebook page of a Virginia politician, but there is no political social media page with as high of a profile as Trump’s, with his 61 million (and counting) Twitter followers and his often exclusive use of the Twitter format to make certain statements (or threats, or whatever).
“Public officials’ social media accounts are now among the most significant forums for discussion of government policy,” said Jameel Jaffer, the Knight Institute’s executive director, in a statement, according to The Washington Post. “This decision will ensure that people aren’t excluded from these forums simply because of their viewpoints.”