Every political or policy disagreement is now a ripe legal challenge for the courts to resolve. But today, the Second Circuit Court of Appeals crowned itself king over Twitter catfights, as the judges can now declare Twitter accounts of certain elected officials of their choosing to be “official” and “public” in a legal sense and ban them from blocking followers to their account.
When our Founders created the concept of Article III “standing” in a court, they could never have envisioned a judge giving standing to a group of people who “are burdened in their ability to view or directly reply to the President’s tweets,” as two George W. Bush and one Obama appointee said today. This is not only because Twitter didn’t exist in the 1700s, but because the bare idea of such a “burden” being a justiciable issue for the courts to resolve regarding any medium of communication didn’t exist.
Last Year, New York district judge Naomi Buchwald gave standing to a handful of people who were blocked from Trump’s Twitter account, @realdonaldtrump, to sue to get unblocked. She ruled in their favor in a declaratory judgement that that “the blocking of the individual plaintiffs from the [Account] because of their expressed political views violates the First Amendment.” That ruling was affirmed today by a three-judge panel of the Second Circuit.
Obviously, an elected official, including the president, has the First Amendment right to communicate with anyone he wishes online. Sometimes, officials create personal accounts or official accounts, but there is no legal distinction between personal and official Twitter accounts codified in any statute dealing with public disclosure laws. It is a personal preference to have two different accounts to separate out different tones of communication. Incidentally, the account that is subject to the litigation is the president’s personal account that he had before he became president, not the @Potus account created after he took office. Yet the Second Circuit now considers Trump’s Twitter account to be public information like any government record.
In an opinion that reads like a parody of law, Judge Barrington Parker, a George W. Bush appointee, wrote that “the First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise open online dialogue because they expressed views with which the official disagrees.”
Parker was joined by Christopher Droney, an Obama appointee, and Peter Hall, a George W. Bush appointee.
The entire 29-page opinion treats Trump’s Twitter account as if it’s some official White House policy communication subject to FOIA laws, when there is no law that has ever codified official Twitter accounts of the president or any other official. The president is not conducting official business via Twitter. He is expressing and communicating his personal views or communicating what he is doing, but that is his prerogative and has never been codified into official presidential duties subject to public disclosure.
Anyone who wants can still see the president’s tweets, even when blocked, but the judges absurdly gave standing to and ruled for the plaintiffs because the workarounds for a blocked user are “burdensome”:
The Individual Plaintiffs further contend that their inability to view, retweet, and reply to the President’s tweets limits their ability to participate with other members of the public in the comment threads that appear below the President’s tweets. The parties agree that, without the context of the President’s original tweets (which the Individual Plaintiffs are unable to view when logged into their accounts), it is more difficult to follow the conversations occurring in the comment threads.
Imagine that! Maybe we can get a judge to start mandating that the president follow them on Twitter too!
As always, when a judge makes a sweeping constitutional pronouncement, Parker left a great many unanswered questions open to future litigation. After all, if the president’s account is now public property, why should members of Congress be different? What about executive branch employees? What about people who work for the courts? What about Judge Parker’s law clerks?
Of course, Parker weasels out of it by saying he will leave that for another day, even though he has an obligation to complete his thoughts now that he has made Twitter for public officials essentially public property:
Of course, not every social media account operated by a public official is a government account. Whether First Amendment concerns are triggered when a public official uses his account in ways that differ from those presented on this appeal will in most instances be a fact‐specific inquiry. The outcome of that inquiry will be informed by how the official describes and uses the account; to whom features of the account are made available; and how others, including government officials and agencies, regard and treat the account.
Between the lines, Parker is saying he is simply targeting the president because he is so big and important. But that is a political argument. If he is going to make an absurd legal argument that using a Twitter account in your official business and tweeting about your job makes it a national account subject to public viewing, then it must apply to members of Congress.
This parody of a ruling also raises the obvious question about Twitter itself: If a private account holder, based on his stature, can be viewed as a public utility subject to disclosure to the entire public without selectively blocking people he disagrees with, then how can the Twitter company itself ban all sorts of people for holding conservative views? If it’s a public utility for one person, it most certainly is for the broader public.
Yet Parker conveniently slithers away from the absurd logical conclusion of his argument: “Nor do we consider or decide whether private social media companies are bound by the First Amendment when policing their platforms,” prefaced Parker.
Finally, Parker concludes with a patronizing line about the need to accept more viewpoints:
“In resolving this appeal, we remind the litigants and the public that if the First Amendment means anything, it means that the best response to disfavored speech on matters of public concern is more speech, not less.”
Actually, Judge, the ultimate limitation on debate and speech in this country is the courts. Every time this country is engaged in a robust debate over life, marriage, immigration, or election law, the courts short-circuit the democratic debate and mandate their viewpoint is the only one that matters because they are life-tenured. Indeed, in this era, there is nothing more powerful than a federal judge. Nothing – absolutely nothing – is beyond the reach and jurisdiction of a federal judge.
A sane society would completely ignore this ruling as an unfathomable usurpation of power. But since we regard any power-grab of a judge as law and grant standing to those who feel burdened by needing to log out of a Twitter account to view Trump’s Twitter, then those same liberal judges should certainly rule that citizens have standing to sue the Obamacare mandate even though there is no financial penalty.
Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.