953 F.3d 216
2d Cir.2020Background:
- Plaintiffs (Knight First Amendment Institute and several individuals) sued after President Trump blocked them from interacting with his @realDonaldTrump Twitter account, alleging First Amendment violations.
- The Second Circuit panel (Knight, 928 F.3d 226) held the account’s interactive features constituted a public forum and that blocking users based on viewpoint was unconstitutional.
- The panel’s public‑forum and state‑action findings relied on evidence that the Account was used for official communications (White House staff involvement, Press Secretary statements, and Presidential Records Act preservation).
- The court denied rehearing en banc; Judge Barrington D. Parker wrote a statement supporting the panel; Judge Michael H. Park (joined by Judge Sullivan) dissented from the denial, arguing the panel erred on state‑action and forum doctrine grounds.
- The core legal disputes are (1) whether blocking by a public official on a personal social‑media account constitutes state action, and (2) whether the account’s interactive reply/rethread space is a public forum subject to viewpoint‑neutral rules.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| State action: Is blocking by the President on @realDonaldTrump state action? | Blocking is state action because the President used the account as an official channel and his official character makes conduct attributable to the State. | Blocking is private conduct using a Twitter feature available to any user and thus not a state‑created right or privilege. | Panel: yes—state action exists; rehearing en banc denied, so panel ruling stands. |
| Public‑forum status: Are the Account’s interactive features a public forum? | The interactive reply/thread space is an open forum for public discourse; viewpoint exclusions are unconstitutional. | The Account is personal; public‑forum doctrine does not apply and disaggregating tweets from replies is artificial. | Panel: interactive space is a public forum; viewpoint‑based blocking is unconstitutional. |
| Government‑speech vs. forum analysis: Can tweets be government speech while replies form a forum? | Tweets (initial posts) can be government speech while the attached interactive space remains a forum for public expression. | Bifurcating an account’s speech and its interactive features is artificial; if tweets are government speech, forum doctrine should not apply. | Panel: disaggregation permissible; forum analysis applied to interactive features. |
| En banc rehearing: Should the court rehear the panel decision en banc? | Plaintiffs and concurring judge argued no need for en banc review; panel decision consistent with precedent. | Dissenting judges argued the panel deviated from state‑action and forum precedents and raised issues of exceptional importance. | Denied (no majority for rehearing en banc); statement and dissent filed. |
Key Cases Cited
- Knight First Amendment Inst. at Columbia Univ. v. Trump, 928 F.3d 226 (2d Cir. 2019) (panel holding account’s interactive space is a public forum and blocking based on viewpoint violates the First Amendment)
- Lugar v. Edmondson Oil Co., 457 U.S. 922 (U.S. 1982) (state‑action test: conduct is state action if "fairly attributable to the State")
- Packingham v. North Carolina, 137 S. Ct. 1730 (U.S. 2017) (social media are important modern public forums for expression)
- Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (U.S. 1985) (tests for creating a nontraditional public forum: policy, practice, and compatibility)
- Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819 (U.S. 1995) (viewpoint discrimination is an egregious form of content discrimination)
- Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (U.S. 1983) (public‑forum framework and access rules)
- Arkansas Educ. Television Comm’n v. Forbes, 523 U.S. 666 (U.S. 1998) (limits on mechanically extending forum doctrine to broadcasting)
- Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (U.S. 1975) (private property can become a public forum when used and controlled by government)
- Brown v. Entertainment Merchants Ass’n, 564 U.S. 786 (U.S. 2011) (First Amendment principles apply across evolving media)
- Manhattan Community Access Corp. v. Halleck, 139 S. Ct. 1921 (U.S. 2019) (private entities performing certain functions are not necessarily state actors)