Knight Institute v. Trump
Seven (7) people, through The Knight First Amendment Institute, sued Donald Trump for blocking their access to his Twitter account. They claim that this was in retaliation to their criticism of Mr. Trump as President and his posts on that account. My first thoughts were that the First Amendment does not guarantee an audience, but as I read further more details came to my attention.
The real question is not does Mr. Trump have the right to block people from his personal Twitter account, but if Mr. Trump uses his personal account for government business is it now a public forum and therefore falls under the First Amendment’s restrictions? In other words, can a public official bypass legal requirements for government communication by using a private account? It wasn’t that long ago that people were in an uproar because they found out that Secretary of State Hillary Clinton had used a private email account to conduct State Department business. If Mrs. Clinton cannot bypass federal records law by using a private email server, should Mr. Trump be able to bypass constitutional restrictions on people’s communication by using a private account rather than his official one? This problem has been created by President Trump and nobody else; he used his personal Twitter account, rather than his official one, to make presidential announcements. While the private citizen Mr. Trump certainly has the right to block people from his private Twitter account, by using this account to conduct presidential business it is now a public forum.
What was violated by President Trump’s blocking individuals from his now public forum? I’ve heard people opine on how this is a violation to people’s freedom of speech or press, and it is.
Congress shall make no law … abridging the freedom of speech, or of the press;
U.S. Constitution, Amendment 1
Since the government CANNOT restrict speech or press, this account is now a public forum for the government in the form of President Trump, and he cannot legally block access to it. The President can ignore anything posted to the account, but he cannot prevent people from posting there.
But there’s more:
Congress shall make no law … prohibiting … the right …to petition the Government for a redress of grievances.
U.S. Constitution, Amendment 1
By using this account to make public announcements, blocking a person’s ability to reply in the exact same public forum not only abridges their freedoms of speech and press, but also their ability to petition the government for a redress of grievances.
Proper Judicial Restraint
Unlike many recent judicial opinions, Judge Naomi Reice Buchwald used proper judicial restraint in her opinion. She did NOT issue an injunction, apparently recognizing that the Constitution does not give the judicial branch the authority to order the executive branch to do anything. This is more commonly known as the “separation of powers”.
“Because no government official is above the law and because all government officials are presumed to follow the law once the judiciary has said what the law is, we must assume that the president and Scavino will remedy the blocking we have held to be unconstitutional,”
Judge Buchwald opinion in Knight Institute v. Trump
There is one issue with Judge Buchwald’s opinion: The Constitution does not give the federal judiciary the power to say “what the law is”, but nobody is perfect.
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution
U.S. Constitution Article III, Section 2, Paragraph 1
JUDI’CIARY, noun That branch of government which is concerned in the trial and determination of controversies between parties
Webster’s Dictionary 1828
The judge was properly exercising her judicial powers by determining the controversy between these parties, but this idea that it is the judiciary that determines what a law is does not pass Constitutional muster. So I would say this is generally a good decision by a federal judge. I hope President Trump will recognize the correctness of this decision and follow the judges recommendations for a solution. I am happy that Judge Buchwald recognized some of the limitations the Constitution puts on the judicial branch, but I also hope she will realize the other limitations as well.
Please comment with your thoughts about this issue and any questions you may have. I look forward to a lively and productive discussion about the powers of the federal government and limitations between its branches.
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