If The President Blocks You On Twitter, Then You Can Sue Him And Win (At Least In New York)

Amendment I: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

In an article that I posted earlier this week, I discussed how certain portions of the First Amendment can not be understood if one merely reads its text at face value. For example, with respect to the phrase “no law,” it has famously been argued before the Supreme Court to “that no law does not mean no law.”

To make matters even more confusing for those who wish to interpret the law in a literalist fashion, according to a federal court ruling from earlier today, the word “Congress” most certainly does not mean Congress, and, in essence, the entirety of the First Amendment can’t be understood if one merely reads its text at face value. In fact, if the ruling issued today were to become the normalized law of the land, reading the First Amendment and fully comprehending each of its 45 words will do nothing but give a literalist a false impression of what the law really means.**

As somebody who has read many court documents, I can entirely understand why somebody would not be interested in reading judicial opinions. I have a strong passion for the law and a deep interest in how our courts interpret it, but even I find certain legal writings to at times be a stronger medication than Ambien.

So for anybody who would like to read the full 75 page judgment rendered today by Judge Buchwald, the 74 year old District Judge for the Southern District of New York, then be my guest. However, for those who are seeking a quick rundown of a story that reveals just how strange the Trump Era is, then please read on. I’ll be brief.

This case involves the Knight Foundation, a free speech orientated national foundation, and several people “who were blocked from the @realDonaldTrump account because of opinions they expressed in reply tweets.”

While it was noted in Judge Buchwald’s opinion that some of these people used “a third-party service called Favstar that could be used by blocked users to view and reply to a blocking account’s tweets if the blocked user established a Favstar account and followed certain steps,” Trump’s decision to block their accounts was still a step too far. In fact, his decision was outright unconstitutional.

In short, the judge determined that President Trump’s twitter account is a non-private forum which therefore requires the application of the First Amendment’s guarantees for those who seek to access it and communicate through it. Since the president blocked the individuals involved in the case as opposed to merely muting/ignoring them, and since “they will continue to experience [a First Amendment] harm as long as they are blocked,” the judge ordered that Trump remedy his unconstitutional behavior by unblocking these individuals.

There are of course an innumerable amount of peculiar situations which may arise from this legal precedent (if it even lasts long enough to carry over into other cases). Can any politician block a Twitter follower without violating the First Amendment? What about other individuals who are recognized as government officers under the law, such as the presidents of public universities and Judge Buchwald herself?

I will most likely write a longer form article detailing the full argument of Judge Buchwald and the many ways in which her legal reasoning and understanding of social media technology strike me as bizarre. For the purposes of this article, I will end by repeating a recurring message from my recent posts. If you are simply seeking to understand the full rights afforded to you by law in this country, you will have to do a whole lot more than merely read what the law says.

** In fairness to Judge Buchwald, our nations’ courts have not interpreted the First Amendment’s initial lines in such a literal fashion for a long time now, as the “State Action Doctrine” has historically been applied to determine whether or not First Amendment rights are applicable to given circumstances. It seems quite obvious to me, however, that Judge Buchwald’s decision takes this doctrine to a level not previously seen.

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