Trump's Twitter Blockees Go to Court

By Jeffrey Toobin, The New Yorker

20 March 18

Is the Twittersphere more like a virtual town hall, or an informal convention?

s Twitter insults go, the one by Rebecca Buckwalter-Poza, a journalist in Washington, was pretty mild. On June 6th, after President Trump tweeted some criticism of the news media, Buckwalter-Poza replied, “To be fair you didn’t win the WH: Russia won it for you.” What happened next, though, was unusual. President Trump, from his @realDonaldTrump Twitter handle, blocked Buckwalter-Poza, meaning that he wouldn’t see any more of her responses and Buckwalter-Poza would no longer see any of the President’s tweets. That made her one of at least a hundred people Trump has blocked, and it led, ultimately, to a hearing in federal district court in Manhattan the other day. Buckwalter-Poza was one of seven Twitter users—including a surgeon in Tennessee and a police officer in Texas—who joined a lawsuit against the President, arguing that, by blocking them, he had violated their First Amendment rights. Judge Naomi Reice Buchwald conducted the hearing, at which Katie Fallow, a lawyer for the Knight First Amendment Institute, at Columbia University, squared off against Michael Baer, a Justice Department lawyer, who represented the President.

In pretrial proceedings, the plaintiffs obtained several interesting revelations from the Trump Administration. The government agreed that Trump himself wrote most of his own tweets, occasionally with the assistance of Daniel Scavino, the White House’s social-media director. More to the point, the government admitted that Trump himself had blocked the plaintiffs. But the real question in the case was whether he had the right to do so. This, in turn, raised an existential question about the online world: what is Twitter?

Fallow looks like a prosecutor on “Law & Order,” and Baer has a baby face, and their combined ages are roughly equal to that of Judge Buchwald, who became a magistrate judge in 1980 and a district judge in 1999. Accordingly, the two young lawyers addressed her with the gentle condescension usually reserved for Mom, when she calls to say her printer isn’t working. Most of the argument involved a set of competing analogies. As Fallow put it, the President is operating his Twitter account “like a virtual town hall. His act of blocking the plaintiffs based on viewpoint from that virtual forum is both state action and violates the First Amendment.”

Not so, said Baer, who argued that Twitter was more like a convention. “If we’re going to focus on real-world analogies, the better one is to a conference or a convention where you can imagine thousands of people milling about and groups of conversations taking place,” he said, “and that public official is free to approach whoever he wants, be approached by whoever he wants, and to say, ‘No, thank you,’ to whomever he wants and to take any number of considerations into account when making those decisions.”

Judge Buchwald presided in a prim tweed suit (no robe). After expressing a regal distaste for Twitter, which she called “something that I don’t consider appropriate for judges to engage in,” she demonstrated that she understood the social-media platform at least as well as the lawyers. She brought the courtroom to near-silence with an idea that cut through the fog of the lawyers’ verbiage. “To the extent that the reason that the President has blocked these individuals is because he does not welcome what they have to say,” she said, “he can avoid hearing them simply by ‘muting’ them.” Twitter offers its users two options to avoid seeing the tweets of others. Trump used the block function, which means that he wouldn’t see a particular person’s tweets and that person could no longer see or respond to his tweets. Muting offers an intermediate step. Trump would no longer have to see the tweets of those he disdains, but they could still respond to his tweets.

On behalf of the plaintiffs, Fallow said that that solution would be a step in the right direction. The Justice Department lawyer made no such concession. Converting the blocked tweeters into muted tweeters would require the President (or, more likely, Scavino) to click through a hundred-odd Twitter accounts, one by one, and tweak their status. Given the President’s reluctance to concede anything to his critics, perhaps Baer wanted to preserve a free hand for his boss.

By the end of the hearing, Judge Buchwald didn’t indicate which way she was leaning. As the proceedings wound down, Baer argued that the President should be immune from even having to address the plaintiffs’ claims. This prompted an arched eyebrow from the Judge, who said, “And he’s above the law?”

“No, Your Honor,” Baer replied.

“I just want to check,” she said.