The part that is missed is the first five words of the First Amendment: Congress shall make no law. It was designed to limit what laws Congress could create. In doing so it also limits the Executive Branch, as its relevant authority is derived from the laws passed by Congress. The First Amendment thus stops executive officials in their official capacity from limiting speech they dont like but it doesnt stop individuals acting in their private capacity.
Upon creating official government accounts @WhiteHouse or @DepofDefense, as examples the government creates designated public forums where people can respond to official tweets. If the government were to block people from responding to these accounts because the government didnt like their opinions, it would be engaged in viewpoint discrimination, and that is prohibited by the First Amendment. However, if Twitter allowed accounts to turn off all responses, this would likely be allowed, as it wouldnt be discriminating based on viewpoint.
But most elected officials are legislators and not even a part of the Executive Branch. They almost always created their accounts long before they were in office as their personal account. Even a campaign account would still be private, not a government account. The First Amendment only limits the laws that Congress passes as a body; it does not limit individual members of the legislature. You have no right, for instance, to invade the home of a congressman to protest some issue; that is their property.
The story becomes a bit more complex for the accounts of the president and vice president. They are part of the Executive Branch and so are limited in their official acts by the First Amendment. The official accounts of the president, including @POTUS, are government accounts created and set up as designated public forums by the government. Thus, the government is limited by the First Amendment.
But what about @realDonaldTrump: Is that an official account? Trump acknowledged that he uses the account to, among other things, announce official decisions. The White House press secretary said the tweets are considered the official statements by the president of the United States. The president used the account to announce the nomination of the new FBI director and his new ban on transgender individuals in the military.
Given these facts, the Second Circuit Court of Appeals found that the president chose to transform his personal account into an official government account. This means he no longer is able constitutionally to block people from responding to his tweets based on viewpoint.
The problem for the Second Circuit is when this occurred. By what act did the president transform his previous private account into the public one of his office? Merely speaking about his official acts through the account isnt enough. The Second Circuit isnt exactly clear as to when this happened. The fact that the account was created before Trump was president and will likely continue as a private account after he leaves is a strong factor suggesting the Second Circuit may be wrong and that other courts may decide the same issue differently.
But, at least for Trump, it doesnt matter, as the Second Circuit has decided Trump has adopted his Twitter account as an official account of his office and therefore cannot block people.
While this limits the @realDonaldTrump account from being able to block people, the reasoning doesnt apply to almost any other elected official (most of whom are legislators).
It is possible the 2nd Circuit decision will apply to some state governors and other state executive-branch officials. It will turn on whether those officials used their Twitter account as the official account of their office, such as announcing official decisions.
But almost all elected officials are in the legislature, either federal or state; and as such their Twitter accounts cannot possibly be limited by the First Amendment. There was no law upon which such accounts base their authority, and so the First Amendment simply doesnt apply.
Devin Watkins is an attorney for the Competitive Enterprise Institute (cei.org), a nonprofit libertarian think tank based in Washington, D.C. He wrote this originally for InsideSources.com.
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