When President Donald Trump blocks someone on Twitter, he's not taking away that person's ability to criticize him on the platform, according to attorneys with the Department of Justice.
Seven individuals who've been blocked by Trump and the Knight First Amendment Institute sued in July, claiming the president uses Twitter as a public forum to share official information is his capacity as President and therefore was violating their right to petition the government by blocking them.
In a motion for summary judgment filed Friday, the DOJ argues the plaintiffs lack standing to sue because their requested relief would "flout the separation of powers" by asking the court to limit "the President's discretion in managing his Twitter account." That argument aside, Trump's government lawyers say his use of Twitter isn't regulated by the First Amendment.
"[E]ven assuming the presence of state action, the premise of Plaintiffs First Amendment argumentthat the Presidents Twitter account is a 'forum' to which they have been denied accessis baseless," states the filing. "At most, the account is a channel for the Presidents speech, and the requirement of viewpoint neutrality accordingly does not apply."
The motion then explains how Twitter works and that Trump doesn't manage his tweets alone. He does it with the aid of Daniel Scavino, an assistant to the President who's also named as a defendant, according to the filing. Although the filing explicitly states that Trump blocked the users personally.
"The tweets that preceded the Presidents decision to block the Individual Plaintiffs generally expressed displeasure with the President, often with intentionally inflammatory language," writes DOJ trial attorney Michael Baer who notes one of those tweets included the hashtag "#fakeleader."
That Twitter's platform is "conversational" in nature isn't enough to turn Trump's account into a "forum intended for free expression by the public," the DOJ argues in the filing. It also notes that the users are still free to criticize Trump's performance and even mention @realDonaldTrump while doing so. It's also important to note that the agency's arguments that his tweets aren't "state action" and the supporting statements imply the site would be well within its rights to ban the president if it wanted to.
"His use of the @realDonaldTrump Twitter account is not a right conferred by the presidency," states the filing. "Twitter is a private platform, run by a private company, and it structures the interactions of its users on its own terms."
The DOJ also argues that the "right to speak" implicates the interest of "unwilling listeners" and Trump has a right to control the information he receives. Any ruling to the contrary, it argues, would put a politician at risk of being sued "every time he cut short or refused to begin in the first place a conversation at a public event with a constituent he knew to be an unpleasant critic."
