18-1691-cv Knight First Amendment Institute, et al. v. Donald J. Trump, et al.

18‐1691‐cv Knight First Amendment Institute, et al. v. Donald J. Trump, et al.

United States Court of Appeals FOR THE SECOND CIRCUIT

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 23rd day of March, two thousand twenty.

PRESENT: ROBERT A. KATZMANN, Chief Judge, JOSÉ A. CABRANES, ROSEMARY S. POOLER, PETER W. HALL, DENNY CHIN, RAYMOND J. LOHIER, JR., RICHARD J. SULLIVAN, JOSEPH F. BIANCO, MICHAEL H. PARK, Circuit Judges.

KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY, REBECCA BUCKWALTER, PHILIP COHEN, HOLLY FIGUEROA, EUGENE GU, BRANDON NEELY, JOSEPH PAPP, and NICHOLAS PAPPAS,

Plaintiffs‐Appellees,

v. No. 18‐1691‐cv

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES and DANIEL SCAVINO, WHITE HOUSE DIRECTOR OF SOCIAL MEDIA 1 AND ASSISTANT TO THE PRESIDENT,

Defendants‐Appellants,

SARAH HUCKABEE SANDERS, WHITE HOUSE PRESS SECRETARY,

Defendant.

For Plaintiffs‐Appellees: Jameel Jaffer (Katherine Fallow, Caroline DeCell, Alexander Abdo, Meenakshi Krishnan, on the brief), Knight First Amendment Institute at Columbia University, New York, NY, Jessica Ring Amunson (Tassity Johnson, Tali R. Leinwand, on the brief), Jenner & Block, Washington, D.C.

For Defendants‐Appellants: Jennifer Utrecht (Scott McIntosh, on the brief), Attorneys, Appellate Staff, Civil Division, for Joseph H. Hunt, Assistant Attorney General, Hashim M. Mooppan, Deputy Assistant Attorney General, Washington, D.C.

Following disposition of this appeal on July 9, 2019, an active judge of the Court requested a poll on whether to rehear the case en banc. A poll having been conducted and there being no majority favoring en banc review, rehearing en banc is hereby DENIED.

Barrington D. Parker, Circuit Judge, filed a statement with respect to the denial of rehearing en banc.

2 Michael H. Park, Circuit Judge, joined by Richard J. Sullivan, Circuit Judge, dissents by opinion from the denial of rehearing en banc.

Debra Ann Livingston and Susan L. Carney, Circuit Judges, took no part in the consideration or decision of this petition.

FOR THE COURT: CATHERINE O’HAGAN WOLFE, CLERK

3 BARRINGTON D. PARKER, Circuit Judge, statement with respect to the denial of rehearing en banc.

This case arises from the President’s use of the @realDonaldTrump Twitter

account (the “Account”) as a primary vehicle for his official communications. He uses

this account to make official statements on a wide variety of subjects, many of great

national importance. The public, in turn, is able to respond to and engage with the

President and other users on Twitter. In Knight First Amendment Inst. at Columbia Univ.

v. Trump, we concluded that this dialogue creates a public forum.

(2d Cir.

2019). We also concluded that when the President creates such a public forum, he

violates the First Amendment when he excludes persons from the dialogue because

they express views with which he disagrees.

The decision is unusual only in that it involves Twitter, a relatively new form of

public, interactive communication, and the President. However, the opinion is

consistent with every precedent of this Court, and the dissent does not demonstrate

otherwise. It is, I respectfully suggest, a straightforward application of state action and

public forum doctrines, congruent with Supreme Court precedent. The dissent

misconstrues the applicable law and overstates the scope of the panel’s holding.

The dissent’s main concern—and its primary argument—is that the Account is

the President’s personal account and therefore is not a public forum and its use does not

constitute state action. This argument is refuted by even a cursory perusal of examples

of the tweets in question. Consider these recent ones:

1 2 These tweets are published by a public official clothed with the authority of the state

using social media as a tool of governance and as an official channel of communication

on an interactive public platform. The panel decision discussed the President’s use of

the Account in an official capacity in detail. See Knight,

. Excluding

people from an otherwise public forum such as this by blocking those who express

views critical of a public official is, we concluded, unconstitutional viewpoint

discrimination.

.

I.

The dissent contends that the President’s use of the Account to conduct official

business does not amount to state action. While the dissent does not dispute that the

Account is regularly used as an official channel of communication, it argues that no

state action is involved because the President does not exercise “some right or privilege

created by the State” when he blocks accounts on Twitter. Knight First Amendment Inst.

at Columbia Univ. v. Trump,

(2d Cir. 2019) (Park, J., dissenting from the

denial of rehearing en banc, at 2) [hereinafter Dissent]. Satisfaction of this condition is

said to be required by our decision in Flagg v. Yonkers Sav. & Loan Ass’n, FA,

(2d Cir. 2005).

I do not agree. The state action analysis of the panel was correct. When the

President tweeted about Iran he was speaking in his capacity as the nation’s chief

executive and Commander‐in‐Chief. If that is not a “right or privilege created by the

3 State” it is difficult to imagine what might be. By the same token, when he receives

responses from the public to the Account, and when he blocks responders whose views

he disfavors, he remains the President. The critical question in this case is not the nature

of the Account when it was set up a decade ago. The critical question for First

Amendment purposes is how the President uses the Account in his capacity as

President.

The Supreme Court in Lugar v. Edmondson Oil Co. identified the test for state

action as whether the conduct allegedly causing the deprivation of a federal right is

“fairly attributable to the State.”

(1982). Edmondson Oil instructs us

that, where the claim of a constitutional deprivation is directed against a party whose

official character is such as “to lend the weight of the State to his decisions,” the conduct

is state action because it is “fairly attributable to the State.”

The President

quintessentially qualifies as a party whose “official character . . . lends the weight of the

State to his decisions.”

That, of course, holds true of his current use of Twitter.1

1The dissent misconstrues this statement of views as making the “extraordinary claim that everything the President does is state action or that the test for state action is different for the President.” Dissent at 3 n.1. That is an inexplicable misreading of the analysis. What the dissent fails to ever seriously address is that when the President blocks users, he blocks them from access to an official account and from engaging in an otherwise open, public dialogue that is created by his use of Twitter to make official statements. Far from saying that everything the President does is state action, the panel narrowly concluded that the President runs afoul of the First Amendment when he prohibits individuals from speaking in an otherwise public, open forum in which he makes official statements. 4 The dissent further contends that “the panel decision blurred the line between

actions by public officials in the performance of their official duties and actions ‘in the

ambit of their personal pursuits.’” Dissent at 5. This ignores the detailed discussion the

panel provided concerning the “substantial and pervasive government involvement

with, and control over,” the Account. Knight,

. That discussion noted that

the President and his staff use the Account as an official channel of communication with

the public on matters of public concern. Press Secretary Sean Spicer confirmed that the

President’s tweets are official statements of the President. White House staff members

are involved in the drafting and posting of tweets to the Account, and the National

Archives and Records Administration requires the preservation of the President’s

tweets as official records under the Presidential Records Act.

None of this is in

dispute.

The dissent states that because “blocking” is a feature available to all users, it

cannot be state action. Dissent at 3. The panel addressed this argument when the

Appellants made it, and the dissent’s reiteration breaks no new ground. See Knight, 928

F.3d at 235‐36. What the dissent never seriously engages with is that when the President

blocks users, he blocks them from access to, and interaction with, an official account.

The decision was careful to address the areas that generate the dissent’s anxiety.

We did not consider or decide whether a public official violates the Constitution by

excluding persons from a personal, private social media account. Nor did we decide

5 how the First Amendment impacts private social media accounts used by public

officials. Knight,

. We held only that the First Amendment does not

permit a government official who utilizes a social media platform for official purposes

to exclude persons from an otherwise open dialogue merely because they expressed

views disfavored by the official.

II.

In Packingham v. North Carolina Justice Kennedy discussed the relationship

between Twitter and the First Amendment. He said that “[w]hile in the past there may

have been difficulty in identifying the most important places (in a spatial sense) for the

exchange of views, today the answer is clear. It is cyberspace—the vast democratic

forums of the Internet in general, and social media in particular. . . . [O]n Twitter, users

can petition their elected representatives and otherwise engage with them in a direct

manner. . . . In short, social media users employ these websites to engage in a wide

array of protected First Amendment activity on topics as diverse as human thought.”

, 1735‐36 (2017). If Justice Kennedy is right, as I believe he is, then the

dissent is wrong.

Keeping the Supreme Court’s words in mind, the panel concluded that the

“interactive space” of the Account was a public forum for the purposes of the First

Amendment. Knight,

. The dissent articulates two concerns with our

public forum analysis. Its first objection is to the “disaggregation” of the President’s 6 tweets from the interactive features of the Account. Dissent at 8. The second objection is

that the President did not change the way he uses Twitter after he took office, and

therefore he could not have intended to create a public forum. Dissent at 7, 11. Again, I

respectfully disagree.

A.

First, the dissent worries that the panel “strayed from” this Court’s precedent

(which is never specifically identified) when it distinguished between the President’s

tweets, which it categorizes as government speech, and the ‘interactive space’ accessible

to the public, which the panel concluded constituted a public forum. Dissent at 2. The

point of departure of our analysis was that “whatever the challenges of applying the

Constitution to ever‐advancing technology, ‘the basic principles of freedom of speech

and the press, like the First Amendment’s command, do not vary’ when a new and

different medium for communication appears.” Knight,

(quoting Brown

v. Entm’t Merchants Ass’n,

(2011)).

A simple analogy to physical public fora makes it clear that the distinction

between a tweet and its interactive space is appropriate: at a town hall meeting held by

public officials, statements made by the officials are protected government speech. If,

however, public comment is allowed at the gathering—as it is on any tweet posted to

the Account—the officials may not preclude persons from participating in the debate

7 based on their viewpoints. Significantly, that discrimination is impermissible even

when the public forum is limited and is “of [the State’s] own creation.” Rosenberger v.

Rector and Visitors of University of Virginia,

(1995); see also Perry Educ.

Ass’n v. Perry Local Educators’ Ass’n,

(1983) (“The Constitution forbids a

state to enforce certain exclusions from a forum generally open to the public even if it

was not required to create the forum in the first place”). Of course, a public forum need

not be “spatial or geographic” and even if the forum is metaphysical, “the same

principles are applicable.” Knight,

(quoting Rosenberger,

).

Without citing any authority, the dissent writes that “[i]f an official gives

remarks and allows for participation by supporters of the government’s policies, that

would not require opening the floor to opponents.” Dissent at 9. That example has

nothing to do with the facts before us. Here, the President makes official statements on

a platform that allows anyone—not just his supporters—to comment and engage with

his statements and with each other. In any event, the line of argument pursued by the

dissent is directly contradicted by the Supreme Court: “As soon as municipal officials

are permitted to pick and choose . . . the path is cleared for a regime of censorship under

which full voice can be given only to those views which meet with the approval of the

powers that be.” Se. Promotions, Ltd. v. Conrad.,

(1975); see also

Rosenberger,

(stating that viewpoint discrimination is “an egregious form

of content discrimination”). The dissent’s contention that a public official could

8 selectively exclude questioners with viewpoints that are disfavored by the official is

inconsistent with the First Amendment. “It is axiomatic that the government may not

regulate speech based on its substantive content or the message it conveys . . .

Discrimination against speech because of its message is presumed to be

unconstitutional.” Rosenberger,

.

B.

The dissent, citing Arkansas Educ. Television Comm’n v. Forbes, contends that we

apply public forum precedent to the President’s use of the Account in a ‘mechanical

way.’

, 672–73 (1998). I disagree. In Forbes the Supreme Court observed that

the public forum doctrine first arose in the context of streets and parks, and warned

against a “mechanical” extension of the doctrine to television broadcasting.

Forbes

identified two features of parks and streets that television broadcasting does not share:

“open access” and “viewpoint neutrality.” The Court found that, because television

channels create and publish their own content, they “are not only permitted, but indeed

required, to exercise substantial editorial discretion in the selection and presentation of

their programming.”

.

Twitter possesses both critical attributes identified by the Court in Forbes that

public broadcasting lacked. First, Twitter is open to the general public. The only

limitation Twitter places on creating an account is age‐based: those under 13 years of

age may not use its services. See Twitter Terms of Service at twitter.com/tos (last visited

9 March 6, 2020). Second, Twitter is neutral with respect to viewpoint; it is a platform on

which the users publish their views.2

C.

Finally, the dissent argues that because the Account was created as a personal

one in 2009 it cannot now be a public forum. Dissent at 11. As I mentioned, the

dispositive consideration is not what the Account may have been in the past, but what it

is now. Consider another recent tweet:

2Section 230 of the Communications Decency Act explicitly allows social media websites (among others) to filter and censor content posted on their platforms without thereby becoming a ‘publisher.’

(c)(1) (“No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider”). Understood correctly, Forbes thus underscores the accuracy of the panel’s analysis.

10 As with the tweet concerning Iran, I believe that under no rational view can tweets such

as these be considered “personal.”

In determining whether the government has “intentionally opened a

nontraditional forum for public discourse” the Court looks to the “policy and practice

of the government” as well as “the nature of the property and its compatibility with

expressive activity.” Cornelius v. NAACP Legal Def. & Educ. Fund, Inc.,

(1985); see also Knight, 928 F.3d at 237‐39. The Account constitutes a public forum under

both considerations the Supreme Court prescribed for forum analysis in Cornelius. As

the panel noted, “[o]pening an instrumentality of communication ‘for indiscriminate

use by the general public’ creates a public forum.” Knight,

(quoting Perry

Edu. Ass’n,

). The President, upon assuming office, has “repeatedly used

the Account as an official vehicle for governance and made its interactive features

accessible to the public without limitation.”

I continue to believe that this

assessment is correct.3 Importantly, even if the Account were a non‐public forum,

excluding individuals who express disfavored views is not permitted. Cornelius,

; see also Minn. Voters Alliance v. Mansky,

(2018).

Twitter is undoubtedly a forum compatible with expressive activity. Navigating

to Twitter’s “About” page (about.twitter.com) reveals a list of statements concerning its

3The panel’s analysis is congruent with the Supreme Court’s conclusion in Se. Promotions, Ltd. v. Conrad that a privately‐owned theater under a long‐term lease to the city was nonetheless “a public forum designed for and dedicated to expressive activities.”

. 11 purpose: “Spark a global conversation.” “See what people are talking about.” In Hague

v. C.I.O., the Court noted that public fora are “used for purposes of assembly,

communicating thoughts between citizens, and discussing public questions.”

(1939). As the Court noted in Packingham v. North Carolina, that is precisely

what social media platforms do. 137 S. Ct. at 1735‐36. Twitter is no exception.

III.

The dissent asserts that, while the President’s tweets are official speech, other

uses of the Account, such as blocking, somehow cause the Account to revert to a

personal account. The dissent goes on to insist the panel’s disaggregation of the

Account’s tweets and interactive space is “artificial” and that Twitter itself makes no

such distinction. Dissent at 8. This argument misunderstands how the platform

operates. Twitter accounts include a bundle of features. They come with every account

and are available to every Twitter user. Neither government officials nor anyone else is

able to individually tailor the features of their accounts. If one navigates to the “Twitter

Rules” webpage, a hyperlink at the top of the page labeled “Using Twitter”4 leads to the

following:

4 This page can be found at help.twitter.com/en/using‐twitter (last visited March 6, 2020). 12 Each phrase is a hyperlink to a new page with a detailed explanation of the feature

listed. Because every Twitter account comes with every feature listed, the ability to

tweet always includes the ability to reply or block. The interactive functions are what

you get when you open a Twitter account. The dissent never explains how an account

used for official government speech turns into a personal account simply because its

user limits who is allowed to see and respond to that speech.

In addition, new features recently announced by Twitter highlight the distinction

that the panel correctly made but that the dissent characterizes as “artificial.” Dissent at

8. One of those features will soon allow Twitter users to limit who can reply to their

tweets. These features will allow users to set reply functions to “Global, Group, Panel,

13 and Statement.” Global is the current default (and only) setting for public Twitter

accounts.5 The Group setting will allow those who follow the account and those @‐

mentioned6 in a tweet to reply, while the Panel setting allows only users @‐mentioned in

a tweet to reply. The Statement setting does not allow anyone to reply, functionally

severing the “interactive space” of the replies from the speech of the tweet itself. The

dissent is thus incorrect to contend that Twitter itself does not distinguish between

“initial tweets” and “interactive spaces.” On the contrary, it is continuing to make the

bounds of those interactive spaces more sophisticated and an even more integral part of

Twitter.

IV.

The dissent repeatedly misconstrues the scope of the holding in Knight. It

worries that the opinion “will reach far beyond the Oval Office, creating uncertainty

about the use of social media by public officials at every level of government.” Dissent

at 12. These alarms ring hollow. None of these fears have come to fruition since the

publication of the opinion. While the dissent worries that “this decision will have the

5 This allows any Twitter user except those blocked by the original tweeter’s account to view and reply to the tweet. “Locked” or “Private” Twitter Accounts are viewable only by followers of the account, and their tweets cannot be “retweeted” by anyone, even followers. 6 An @‐mention creates a hyperlink in the tweet to the account named.

14 unintended consequence of creating less speech,” it points to no marked change to how

public officials use social media since the opinion was published.7

In fact, just the opposite has occurred. In the past few months, the President has

been posting on Twitter at more than three times the rate he was tweeting in 2017.

These tweets cover subjects as diverse as military actions, immigration policies, and

senior staffing changes, among other major official announcements. Twitter is not just

an official channel of communication for the President; it is his most important channel

of communication.8

V.

Federal Rule of Appellate Procedure 35 provides that an en banc rehearing “will

not be ordered unless (1) en banc consideration is necessary to secure or maintain

uniformity of the court’s decisions; or (2) the proceeding involves a question of

7 The dissent cites four cases purportedly to illustrate and document the concerns that the panel decision is just one in a flood of similar lawsuits. Leuthy v. LePage was made moot before the panel even heard oral arguments in Knight. No. 1:17‐cv‐0029‐JAW,

(D. Me. Aug. 29, 2018). Campbell v. Reisch was filed and argued before the decision of this panel was released. No. 2:18‐cv‐4129‐BCW,

(W.D. Mo. Aug. 16, 2019). Hikind v. Ocasio‐ Cortez was recently settled. No. 1:19‐cv‐03956 (E.D.N.Y. filed July 9, 2019). Garnier v. Poway Unified Sch. Dist., No. 17‐cv‐2215‐W (JLB),

(S.D. Ca. Sept. 26, 2019) was filed in 2017, and cites to Knight repeatedly, agreeing at every step with the panel’s analysis. In fact, Garnier underscores that the analysis of the panel in Knight can be applied in a straightforward manner to cases as they arise, even outside of our Circuit. 8 The President’s press secretaries have repeatedly responded to criticisms about the lack of

press briefings by pointing out that the press has unprecedented access to him and that he “communicates directly with the American people,” which is, of course, a reference to Twitter. 15 exceptional importance.” The dissent fails to offer anything beyond conclusory claims

that either standard is met in this case.

A distinctive feature of the Second Circuit is its infrequency of rehearing cases en

banc. Judge Jon O. Newman has explained that this approach is grounded in the view,

“strongly held by all members of the court, that in bancs are normally not a wise use of

judicial resources.” Jon O. Newman, In Banc Practice in the Second Circuit, 1984‐1988, 55

BROOK. L. REV. 355, 369 (1989). I, for one, agree with these views. Judge Newman went

on to stress that the collegiality of this Court, and its relative lack of the “vitriolic

language unfortunately found in the writings of some other appellate courts,” is

promoted by the infrequency of en bancs.

He perceptively notes the benefits that

flow to each of us from allowing panels to decide their own cases, and being reluctant

to oversee the work of one’s colleagues through en banc review. Judge Newman

concluded his report on en banc practice in the Second Circuit with the following

reflection:

As the membership of the court changes, there is always the possibility that the pattern of rare in bancs might change. . . . [T]hose coming onto the court . . . will find a rather firmly established tradition. I hope that they—and all who observe the work of this Court—will appreciate the benefits that our practice of infrequent in bancs has conferred upon our institution.

Newman, supra, at 503.

I respectfully submit this statement to accompany the denial of rehearing en banc.

16 MICHAEL H. PARK, Circuit Judge, joined by RICHARD J. SULLIVAN, Circuit Judge, dissenting from the denial of rehearing en banc:

When public officials use personal social‐media accounts to express their

views, they do not engage in “state action.” And the First Amendment’s guarantee

of free speech does not include a right to post on other people’s personal social‐

media accounts, even if those other people happen to be public officials.

We have declined to rehear en banc a decision that extends the First

Amendment to restrict the personal social‐media activity of public officials.

Because the panel opinion contravenes both our state‐action and public‐forum

precedents, I respectfully dissent from the denial of rehearing en banc.

This case concerns the President’s personal Twitter account,

@realDonaldTrump, which he created in 2009, more than six years before taking

office. The President “blocked” Plaintiffs from interacting with his account, and

they sued, claiming a violation of the First Amendment. The panel held that (1)

the President engaged in “state action” when he blocked Plaintiffs from

@realDonaldTrump, and (2) the “interactive spaces” of the account—specifically,

the thread of replies to each of the President’s tweets, but not the tweets

themselves—are a public forum. Therefore, the panel concluded that “the

President violated the First Amendment when he used the blocking function [of his personal Twitter account] to exclude” individuals based on their viewpoints.

Knight First Amendment Inst. at Columbia Univ. v. Trump,

(2d Cir.

2019).

This decision strays from our precedents, extends the scope of the First

Amendment to encompass the personal social‐media activity of government

officials, and therefore merits review by the whole court.

I.

Although the panel opinion is correct, as the government concedes, that the

President used his personal Twitter account to conduct official business, that does

not end the state‐action analysis. The panel opinion ignored an important part of

the state‐action test by failing to consider whether the President exercised “some

right or privilege created by the State” when he blocked Plaintiffs from his

personal Twitter account. Flagg v. Yonkers Sav. & Loan Ass’n, FA,

(2d Cir. 2005) (citation omitted). “[S]tate action requires both . . . the exercise of

some right or privilege created by the State . . . and” the involvement of “a person

who may fairly be said to be a state actor.”

(emphases in original) (internal

quotation marks omitted) (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan,

(1999)). The “right or privilege” requirement is a well‐established feature of

2 state‐action doctrine. See Lugar v. Edmondson Oil Co.,

(1982);

United States v. Int’l Bhd. of Teamsters, AFL‐CIO,

(2d Cir. 1991).1

The President did not exercise a “right or privilege created by the State”

when he blocked Plaintiffs, and the panel erred in ignoring this requirement.

Because Twitter is privately owned and controlled, a public official’s use of its

features involves no exercise of state authority. Twitter, Inc.—not President

Trump or the United States—controls the platform and regulates its use for

everyone. In “blocking” Plaintiffs, the President used a Twitter feature available

equally to every other user, so his actions were not “fairly attributable to the State.”

Flagg,

(citation omitted). Therefore, the President was not a state

actor when he blocked users from his personal account. He could block users from

that account before assuming office and can continue to do so after he leaves the

1 Judge Parker’s statement of views with respect to the denial of rehearing en banc (the “concurrence”) misreads Edmondson Oil when it asserts that the President’s actions were “fairly attributable to the State” because “[t]he President quintessentially qualifies as a party whose ‘official character . . . lends the weight of the State to his decisions.’” Concurrence at 4 (citation omitted). Edmondson Oil does not support the extraordinary claim that everything the President does is state action or that the test for state action is different for the President. This language simply means that when the actor is a state official, the second prong of the state‐action test is satisfied, so the only question is whether that official has “exercised some right or privilege created by the State.”

. That is the same question here, which the panel opinion completely overlooks.

3 White House. He “exercised no special powers possessed by virtue of . . . law”

when blocking users, “nor were his actions made possible only because he was

clothed with the authority” of law. Colombo v. O’Connell,

(2d Cir.

2002) (per curiam) (cleaned up).2 By ignoring this requirement, the panel decision

deviated from this Court’s state‐action precedents. See Fed. R. App. P. 35(a)(1).

None of the evidence emphasized by the panel undermines this point. The

panel pointed to numerous instances when the President tweeted about his work

in office, but that is not enough to make his personal account a “right or privilege

created by the State.” Such a rule would preclude government officials from

discussing public matters on their personal accounts without converting all

activity on those accounts into state action.3

2 The panel’s reliance on Southeastern Promotions, Ltd. v. Conrad,

(1975), is misplaced. There, it was undisputed that the government used facilities that were “under their control.”

. So the Court had no reason to consider whether state action was at issue. 3 For example, when incumbent officials run for reelection, we ordinarily understand them to be expressing a mix of personal and official views. But the panel’s reasoning would seem to foreclose incumbents from selecting who can participate in campaign rallies, online groups, or personal events. Similarly, when officials make public statements about their faith or offer prayers, we do not understand them to be violating the Establishment Clause. See Van Orden v. Perry,

(2005) (Stevens, J. dissenting) (“Our leaders, when delivering public addresses, often express their blessings simultaneously in the service of God and their constituents. Thus, when public officials deliver public speeches, we recognize that their words are not exclusively a transmission from the government because those oratories have embedded within them the inherently personal views of the speaker as an individual member of the polity.” (emphasis in original)). So too here. The mere fact that Donald Trump uses Twitter for both

4 In addition, the panel’s reasoning—that because the President tweets in an

official capacity, his use of Twitter’s blocking function is state action—operates at

the wrong level of analysis. The panel focuses on the status of the entire account—

i.e., whether the President’s use of Twitter transformed his personal account into

an official account—rather than examining the specific action at issue—i.e.,

whether blocking Plaintiffs from accessing the interactive features of his personal

Twitter account amounts to state action. But this Court has explained that we

should “look to the nature of the officer’s act, not simply his duty status.” Pitchell

v. Callan,

(2d Cir. 1994). By departing from the law of state action,

the panel decision blurred the line between actions by public officials in the

performance of their official duties and actions “in the ambit of their personal

pursuits.”

at 548 (quoting Screws v. United States,

(1945)). And

by fixating on the President’s recent tweets, the panel opinion and the concurrence

fall into a logical fallacy—i.e., that some official use of a Twitter account turns all

use, or even all tweets, into state action. Our precedent calls for a more nuanced

analysis that focuses on the specific feature at issue, which is the President’s ability

to block users.

personal and official communication does not transform all of his Twitter activities into state action.

5 Finally, the panel’s reliance on evidence from the factual record unmoored

from state‐action doctrine introduces confusion about when a public official’s

personal social‐media activity becomes state action. For example, it is not clear

from the panel’s decision when President Trump’s Twitter activity crossed into

state action. Did it happen on Inauguration Day? Upon a particular “official

announcement” from @realDonaldTrump? And how many “official” tweets does

it take to convert “personal” tweets into state action? The panel decision raises

difficult questions but provides little guidance for officials today or to litigants,

lawyers, and judges tomorrow.

II.

Even assuming state action, the panel’s application of First Amendment

public‐forum doctrine to @realDonaldTrump is a poor fit, as is the characterization

of the account’s “interactive spaces” as a public forum. The panel opinion’s

public‐forum analysis strayed from precedent in two ways. First, it is well

established that when the government engages in its own speech, it is permitted

to “speak for itself” and to “select the views that it wants to express.” Pleasant

Grove City, Utah v. Summum,

, 467–68 (2009) (citations omitted). Thus,

where government speech is at issue, forum analysis does not apply.

To avoid

6 this result, the panel disaggregated the President’s Twitter feed into his initial

tweets, which it recognized as government speech, and “his supervision of the

interactive features of the Account,” which it excluded from that speech. Knight,

. With this move, the panel concluded that the “interactive spaces”

are a public forum.

. But the panel cannot have it both ways, and the

Supreme Court has warned against extending the public‐forum framework in just

this sort of “mechanical way.” Ark. Educ. Television Comm’n v. Forbes,

,

672–73 (1998).

Second, the panel opinion erred in finding that the President created a

public forum by continuing to use Twitter’s features the same way he did before

taking office, even though “[t]he government ‘does not create a public forum by

inaction or by permitting limited discourse.’” Perry v. McDonald,

(2d Cir. 2001) (emphases removed) (quoting Cornelius v. NAACP Legal Def. & Educ.

Fund, Inc.,

(1985)).

A.

The Supreme Court has warned that we should be “wary of the notion that

a partial analogy in one context,” i.e. public‐forum doctrine, “can compel a full

range of decisions in such a new and changing area.” Denver Area Educ. Telecomms.

7 Consortium, Inc. v. FCC,

(1996) (plurality opinion) (Breyer, J.).

“Having first arisen in the context of streets and parks, the public forum doctrine

should not be extended in a mechanical way” to new areas if it is not “compatible

with [their] intended purpose.” Forbes, 523 U.S. at 672–73 (citation omitted). For

example, the Supreme Court has noted the limited applicability of the public‐

forum framework to public television because “public broadcasting as a general

matter does not lend itself to scrutiny under the forum doctrine.” Id. at 675.

The panel here engaged in just the sort of mechanical extension of the

public‐forum framework that the Supreme Court has warned against. To

shoehorn Twitter into public‐forum doctrine, the panel carved out “interactive

spaces” from the tweets to which they are connected. It acknowledged that the

tweets are government speech, but then applied public‐forum doctrine to the

“interactive spaces.” This disaggregation of Twitter’s features was wholly

artificial—Twitter’s own rules make no such distinction between “initial tweets”

and “interactive spaces.”4 The panel then stretched the concept of a public forum,

4 The concurrence points to future updates to Twitter’s platform that it believes will “highlight the distinction that the panel correctly made” between tweets and “interactive spaces.” Concurrence at 13. But the possibility that relevant features may change even before this litigation has concluded should not comfort us, but make us wary of imposing rigid and potentially constricting legal frameworks on fast‐evolving technologies.

8 which was originally meant to ensure that “members of the public retain strong

free speech rights when they venture into public streets and parks,” to hold that

the President may not use his personal account on a private company’s website in

a certain way. Pleasant Grove City,

. The panel engaged in this forced

analysis because the personal social‐media pages of government officials do “not

lend [themselves] to scrutiny under the forum doctrine” the way a sidewalk or

park might. Forbes,

.

A few examples illustrate the illogic of applying public‐forum doctrine in

connection with government speech. If an official gives remarks and allows for

participation by supporters of the government’s policies, that would not require

opening the floor to opponents. Or if an official distributes pamphlets and solicits

letters from the public, that would not deprive the official of editorial discretion to

select which responses to publish. Likewise, if tweeting an official message on a

personal Twitter account were government speech, then it should not deprive a

public official from blocking certain users. See, e.g., Walker v. Tex. Div., Sons of

Confederate Veterans, Inc.,

(2015) (“The fact that private parties

take part in the design and propagation of a message does not extinguish the

governmental nature of the message or transform the government’s role into that

9 of a mere forum‐provider.”); see also Manhattan Cmty. Access Corp. v. Halleck,

(2019) (Sotomayor, J., dissenting) (noting that in the context of

“government speech,” “picking favored viewpoints is appropriately

commonplace”).

It would be illogical and impractical to apply forum doctrine to such

scenarios by bifurcating government speech and “interactive spaces” to require

the airing of competing views. That is because the purpose of such speech,

including the “interactive spaces” that may accompany it, is to convey the

government’s views, not to create a public forum.

B.

Second, the panel opinion erred in concluding that the President

“intentionally” turned his Twitter account into a public forum. Knight,

. It is well established that the government can create a public forum “only by

intentionally opening a nontraditional forum for public discourse.” Cornelius,

(emphasis added). We have explained that “[t]he government ‘does

not create a public forum by inaction or by permitting limited discourse.’” Perry,

(emphases omitted) (quoting Cornelius,

).

10 None of the factors considered by the panel indicates that the President

intentionally opened his Twitter account to public discourse. The panel based its

conclusion on factors such as the general public’s access to the “interactive

spaces,” the ability of Twitter users to reply and retweet, the holding out of the

account as a means the President employs to communicate, and the expressive

activity in the interactive spaces. Knight, 928 F.3d at 235–36. But none of these

factors speaks to the President’s intention, and the record is clear that Donald

Trump set up @realDonaldTrump in 2009 to convey his own views, not to open a

forum for public discourse. Nor are the “interactive spaces” of Twitter intended

to provide open access for all. For one thing, only those with a Twitter account

can retweet, reply, or like a tweet. Moreover, Twitter provides features like

“blocking” precisely to enable users to limit access to and to curate activity on their

accounts. Indeed, Twitter describes itself as “a place to share ideas and

information, connect with your communities, and see the world around you,” and

it explains that “[i]n order to protect the very best parts of that experience, we

provide tools designed to help you control what you see and what others can see

about you, so that you can express yourself on Twitter with confidence.”5

5 How to Control your Twitter Experience, Twitter, https://help.twitter.com/en/safety‐and‐ security/control‐your‐twitter‐experience (last visited Mar. 13, 2020).

11 Under the panel’s reasoning, if a public official speaks on a platform that

automatically permits others to comment, then the official is responsible for

creating a public forum. This is inconsistent with our holding that the government

cannot create a public forum by “inaction” alone, and it illustrates how a strict

application of public‐forum doctrine is ill‐suited for social media. See Perry,

(citation omitted).

III.

Courts should be circumspect in extending legal doctrines to new and

evolving technologies outside the realm of judicial expertise. This is particularly

true when the result may have significant implications for interactions between

government officials and the public.

The panel opinion will reach far beyond the Oval Office, creating

uncertainty about the use of social media by public officials at every level of

government. Public officials today routinely maintain social‐media accounts for

official, personal, and campaign use, and they address issues of public concern on

all of them. To be sure, the President’s use of Twitter is unprecedented in some

respects. But it is now commonplace for politicians to use personal accounts to

promote their official activities. The key facts in this case—that the President had

12 a personal Twitter account, that he used it to tweet on matters relating to his office,

and that the public was able to comment on his tweets—are not unique. Indeed,

this case is just one of several similar lawsuits challenging the right of public

officials to use personal social‐media accounts in a private capacity. See, e.g.,

Hikind v. Ocasio‐Cortez, No. 1:19‐cv‐03956 (E.D.N.Y. filed July 9, 2019) (suit against

congresswoman for blocking user on personal Twitter account, since dismissed

with the consent of the parties); Campbell v. Reisch, No. 2:18‐CV‐4129‐BCW,

(W.D. Mo. Aug. 16, 2019) (suit against state legislator for blocking

user on Twitter campaign page), appeal filed No. 19‐2994 (8th Cir. Sept. 16, 2019);

Leuthy v. LePage, No. 1:17‐cv‐00296‐JAW,

(D. Me. Aug. 29, 2018)

(suit against governor for blocking user on Facebook); Garnier v. Poway Unified Sch.

Dist., No. 17‐cv‐2215‐W (JLB),

(S.D. Cal. Sept. 26, 2019) (suit

against school officials for blocking residents on Facebook and Twitter).

Our decision in this case will affect how public officials may use social

media, making them less able to defend themselves from hate and harassment. It

will limit how public officials may act in a personal capacity in all aspects of their

life, online or otherwise, by writing the “right or privilege” requirement out of

state‐action doctrine. And it will bind us to apply public‐forum doctrine when

13 analyzing social‐media activity, even though the framework is a poor fit for how

social media actually functions. These are issues of “exceptional importance” and

merit review by the whole court. Fed. R. App. P. 35(a)(2).

The panel decision concludes with the statement that “the best response to

disfavored speech on matters of public concern is more speech, not less.” Knight,

. Despite the concurrence’s premature reassurances to the contrary,

it seems likely to me that this decision will have the unintended consequence of

creating less speech if the social‐media pages of public officials are overrun with

harassment, trolling, and hate speech, which officials will be powerless to filter.

The panel’s effort to extend public‐forum doctrine to social media is a mismatch

and highlights why courts “should be cautious in applying our free speech

precedents to the internet” and thus “should proceed circumspectly, taking one

step at a time.” Packingham v. North Carolina,

(2017) (Alito, J.,

concurring in the judgment).

For these reasons, I respectfully dissent from the denial of rehearing en banc.

14