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Not every act of presidential pettiness is a 1st Amendment violation

By Michael McGough • Jul 12, 2019 at 12:55 AM

A federal appeals court this week ruled President Donald Trump violated the 1st Amendment by blocking some critics from access to his Twitter feed. The decision by the U.S. 2nd Circuit Court of Appeals might seem like poetic justice visited on a president who can dish it out but can’t take it. But as a matter of constitutional law, the ruling isn’t persuasive.

In 2017, a group of Twitter users who had been blocked from seeing and responding directly to Trump’s tweets filed suit in federal court in New York. One plaintiff was blocked after she responded to a Trump tweet crowing about his electronic victory with: “To be fair, you didn’t win the WH: Russia won it for you.”

At the time, the Los Angeles Times editorial board — while criticizing Trump for his thin skin — expressed skepticism that his Twitter account was a “designated public forum” that must be open to all viewpoints. We noted that @realDonaldTrump was a long-standing personal account (it predates Trump’s presidency) even though Trump used it to make policy pronouncements.

A federal district judge disagreed, and her ruling was affirmed by the 2nd Circuit. Writing for a three-judge panel, Judge Barrington D. Parker said that “once the president has chosen a platform and opened up its interactive space to millions of users and participants, he may not selectively exclude those whose views he disagrees with.”

The idea that Trump’s motive in tweeting is to provide a forum for a robust exchange of ideas is the legal fiction to end all legal fictions. And even if @realDonaldTrump is classified as an official presidential platform, the Supreme Court has held that “government speech” doesn’t create a public forum. Otherwise Trump’s critics would be entitled to equal time at his news conferences.

Parker acknowledged but rejected the argument that Trump’s tweets are “government speech.” Yet elsewhere in his opinion he cited a statement by former White House press secretary Sean Spicer that Trump’s tweets should be considered “official statements by the president of the United States.” That seems like a contradiction.

Again, to question the legal theory adopted by the court isn’t to defend Trump’s practice of blocking his critics. As we observed in our 2017 editorial: “Whatever the courts say about the constitutional issue, Trump is acting childishly by excluding citizens who dare merely to disagree with him from @realDonaldTrump — a forum that he considers an important channel of communication.” But not every act of presidential pettiness is a violation of the 1st Amendment.

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©2019 Los Angeles Times

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