Second Circuit Declares Itself King Of Twitter Catfights

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Every political or policy disagreement is now a ripe legal challenge for the courts to resolve. But today, the Second Circuit Court of Appeals crowned itself king over Twitter catfights, as the judges can now declare Twitter accounts of certain elected officials of their choosing to be “official” and “public” in a legal sense and ban them from blocking followers to their account.

When our Founders created the concept of Article III “standing” in a court, they could never have envisioned a judge giving standing to a group of people who “are burdened in their ability to view or directly reply to the President’s tweets,” as two George W. Bush and one Obama appointee said today. This is not only because Twitter didn’t exist in the 1700s, but because the bare idea of such a “burden” being a justiciable issue for the courts to resolve regarding any medium of communication didn’t exist.

Last Year, New York district judge Naomi Buchwald gave standing to a handful of people who were blocked from Trump’s Twitter account, @realdonaldtrump, to sue to get unblocked. She ruled in their favor in a declaratory judgement that that “the blocking of the individual plaintiffs from the [Account] because of their expressed political views violates the First Amendment.” That ruling was affirmed today by a three-judge panel of the Second Circuit.

Obviously, an elected official, including the president, has the First Amendment right to communicate with anyone he wishes online. Sometimes, officials create personal accounts or official accounts, but there is no legal distinction between personal and official Twitter accounts codified in any statute dealing with public disclosure laws. It is a personal preference to have two different accounts to separate out different tones of communication. Incidentally, the account that is subject to the litigation is the president’s personal account that he had before he became president, not the @Potus account created after he took office. Yet the Second Circuit now considers Trump’s Twitter account to be public information like any government record.

In an opinion that reads like a parody of law, Judge Barrington Parker, a George W. Bush appointee, wrote that “the First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise open online dialogue because they expressed views with which the official disagrees.”

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