tv Knight Institute v. Trump Oral Argument CSPAN July 11, 2019 1:58am-2:42am EDT
the opinion, saying that once the president has chosen a platform and opened up its interactive space to millions of users and participants, he may not selectively exclude those whose views he disagrees with. this oral argument from march is 40 minutes. >> good morning. please be seated. argument.ar
>> his exercise to block from that account is in ability he shares in common with all twitter users. in holding that this was a first amendment violation, the district court made to critical errors. the district court incorrectly concluded that donald trump was wielding the power of the federal government when he blocked plaintiffs from the account. second, the court incorrectly concluded that the account was a forum from which plaintiffs are being excluded. >> are you arguing that the only thing independent of his presidency in the account is his blocking or the account itself? are you maintaining that position or just the blocking? >> when you are trying to analyze whether or not state action is being evoked, you look at the particular conduct at issue. you ask whether the particular conduct at issue is wielding the power of the government, whether privilege orr
authority given to the defendant by virtue of their office. >> this twitter account is a designated public forum then? is it a public forum or isn't it? >> i asked whether you are claiming the only action he took was blocking these people. forum?twitter a public >> no, that is the second error by the district court. we believe it is a threshold question that should be addressed, because if there is no state action, there can't be a first amendment violation. the constitution does not prohibit private parties from engaging in conduct that inhibits expressive conduct. so you want to argue that this is a private party, everything is private? if you are asking that, it is
curious to me that the department of justice is representing a private entity. >> it is the department's policy to defend public officials and federal officials who are sued in their official capacity, but that it is simply incorrect when they suggest this was something donald trump did in his official capacity. donald trump has not had the ability to block anyone from since long before this presidency. this is not an authority he has been wielding by virtue of his office. >> so just in the last few days, he has had tweets where he revoked the north korean signed a, he proclamation on the golan heights, israel having sovereignty over that area.
he announced an appointment to the federal reserve board. and the washington capitals celebration in the white house for winning the stanley cup. those are not official actions. >> we are not contending that he conducts speech on that account that are official statements. we concede that there are statements on the account that are official. >> you are not contesting that he is not doing that. i think you said he is doing that. >> there are official statements made on the account. the government has conceded that in many cases. >> regularly and persistent? >> certainly there are ldonaldtrumprom @rea that constitutes official statements, but that does not change the nature -- forum?is this a public
>> this goes to the second question. i don't care if it is second or third. is not state action. if a private individual were trying to exclude, and we do contest this is a public forum. because the president can engage in viewpoint ?iscrimination he can still do it when he is president? >> that is not the case. the question is whether excluding someone from private property would be wielding the authority of the government. for example, a president's private -- >> what sort of forum is this, in your view?
>> the fundamental question involves the forum, whether the government has intentionally opened up property, and whether the government has intentionally opened up that property. privately owned property is controlled by the government, though, where it is an auditorium owned by somebody else. the private party releases it to the municipality. municipality blocked the production and the supreme court said you can't do that even though it is owned by a private party. if you control that forum, which the city did, then your actions are state actions and it is a public forum. how is that different from blocking somebody here, saying we are not going to allow production in the auditorium even though we don't own it, and the supreme court says that is a
violation of the first amendment. how is that different from blocking here? twitter is owned by someone else, but how is that different from that case? >> we need to analyze who is blocking in what capacity they are doing that in. a public forum and a private individual were to come up and tried to kick someone out of that forum, you would not consider that to be government action subject to the first amendment. wax but what if it were -- >> but what if it were the president of the united states? >> we are talking about personally own property, such as crawford ranch. they still retain their private property rights, separate and apart from their presidency. >> are you seriously urging us
to believe that the president is not acting in his official capacity when he is tweeting? i am asking you to -- >> before we get to the blocking, when he is tweeting, is he acting in his official capacity? >> sometimes, yes. the critical point is you have to analyze the conduct at issue, blocking separately on that property. certainly at the white house, individual actions take place that are not subject to the first amendment. things happen at mar-a-lago that might be official actions, but that does not change the fundamental nature. >> tell me there is a situation where there is a robust nation dialogue on matters of
transcendent public importance, and what the blocking does, and correct me if i am wrong, is subtract from that discussion points of view that the president does not like. why isn't that just quintessential first amendment violation? >> i take issue with several of the things that were said. it is important to keep in mind all the things that people who are blocked are capable of doing. >> i know what they're capable of doing. >> in the case where they were excluded they would not -- >> that is a defense of viewpoint discrimination. >> i am not sure i understand. >> the fact that someone can go down the street and express a point of view is not a defense
to government expressing a point of view in a forum -- >> i think that underscores the overall point, which is that the account is not a forum at all. this is an attempt to analogize this to a town hall that has been opened by donald trump, intentionally for the purpose of having people respond to his speech. >> so what's missing, he just doesn't have the potential for anybody to respond? >> this is an account that has been opened up as a platform for -- as athe more platform for his own speech. i think the more apt analogy is, if you think of twitter -- >> has it not been opened up to speech by all the folks who are liking and replying? >> i don't think that is necessarily true. the analogy i was about to give might help illustrate. ofhink the better way
thinking about how twitter works is that twitter itself -- >> we are engaged in a great conversation here as we try to figure this out. victor, if you would add five minutes to this. >> thank you, you honor. if you think of twitter writ large, the entire privately owned platform as a private shopping mall or park, there are many overlapping conversations that happen on twitter. each person uses their account to speak into the larger private forum. if the discussions are not happening specifically on that real donald trump, they are happening across twitter in response to think he has said. the best example is they are not
posted on @realdonaldtrump. for example, if he were to delete the tweet, the things that people have said to him would exist elsewhere. you could see them on the accounts, on the account of the person who has replied. really, these common threads under @realdonaldtrump are better seen as a record of the conversations that are happening across twitter. when donald trump blocks someone, he is not keeping them from these conversations -- >> he is making it more difficult for them to access his tweets, though, isn't he? there are ways to go around this with shadow accounts and other much moreit is still burdensome and not as effective as when you can simply respond to a tweet, reply to one of his tweets. don't think i would say it is much more burdensome. >> isn't that the point?
for the first amendment, it does not have to be much more burdensome. if you have to go down the street, that violates the first amendment. >> if it is a forum, it does not have to be more burdensome. but the thing that we discussed, that people still have access to the greater conversations that are happening in twitter shows that they are not burdened from their access to a forum, they are burdened from their ability to reply. >> assuming that this is a public forum and what we have here is viewpoint discrimination, the existence of a workaround is not a defense to that, is it, under first amendment jurisprudence? >> if this were considered to be in a personalnd capacity, and this were considered to be a public forum, then of course viewpoint discrimination would not be
permissible, but neither of those two elements are present here. this is both something conducted in a personal capacity and -- >> when you say something conducted in its personal capacity, what does that mean? in light of the long parade, we could cite lengthy lists of examples of what is undisputedly official business being conducted on the account. ms. utrecht: that's certainly true, but we have to look at the individual nature of blocking and what power is being exercised when the president blocks someone. >> excluding people whose viewpoints he disagrees with. >> private individuals do that all the time. >> he is not a private individual. you're not here because he is
not a private individual. your presence represents the fact that this is a public forum. ms. utrecht: certainly, but if he was on the street and someone approached him and he walked away from that person, we could not that was a choice under his government of authority, nor would we say the choice -- >> i don't see why that helps. ms. utrecht: it helps illustrate the underlying point here. plaintiffs have been blocked from being able to reply to donald trump, but they are capable of having conversations both about his tweets and continuing to criticize him, continuing to engage with everyone else who is talking about what he has to say. they are still part of the overall privately-owned forum that is twitter, but his account itself -- the better way of looking at it is he is not a regulator, he is a participant in a forum. he is participating in twitter, not asking in a controlling way.
he is choosing with whom he will engage with and have conversations. but in a normal conversational realm, we do not think about the choices as creating a space or a forum. >> the archives have said that the tweets are official records that must be retained and maintained and presumably find their way to the archives. would you agree that the archives is entitled also to receive the replies and the retweets and the likes? ms. utrecht: i am not an expert in presidential record-keeping laws. i know that the standard is that
the president's electronic communications, if we consider it to be electronic, that are related to the statutory law duties of his office must be maintained so they can be passed on to the next president to facilitate transition. i am not sure whether we would consider things that people express to the president on the internet in all circumstances to be within that. >> the record with the likes and the retweets and so forth. do you think that the archives request does not cover them? ms. utrecht: i -- i think there is reason to believe they might not cover them. >> that seems to make no sense. if the tweet is official public record, then the -- there are letters in the physical realm that would be sent to the president, but i
don't imagine there is a requirement for the president to keep every letter that has been mailed to him were a replied to every statement he makes on his twitter account to be kept and maintained by the record. >> do you think the president or someone in the white house could go through the accounts and only retain, only turn over to the archives, the tweets themselves? do you think that would comply with the archives' request? ms. utrecht: it is possible, but these are decisions that are made by white house lawyers. i am not entirely familiar with how those are made. >> thank you. you have reserved three minutes for rebuttal. good morning, your honors. public officials across the country now use social media to communicate with and hear from
their constituents. social media accounts often serve the same purposes as forums like city council meetings or school board meetings or town halls. >> it was just said that facebook utilized by a county supervisor is a forum. is there any difference between facebook and twitter account here? mr. jaffer: the platforms are different. i think in individual cases, the plaintiffs can make a compelling case that a particular account on facebook is a public forum. in a case that was rightly decided. but i don't think it follows from this case, from the district court decision, that every public official's account on every forum, on every
platform is a public forum. you have to look at the way the account is used and what resources were used to support the account. >> what factors do we look at? mr. jaffer: there are three paragraphs of the joint stipulation that might be useful to you. one is paragraph 39, which makes clear the president uses official government resources in connection with this accounts , so other government officials have access to the account. they draft tweets for the president to post himself, and sometimes they propose language for tweets that the president posts. this is not an account that the president operates on its own. this is an account that involves substantial and sustained involvement or investment of personnel. it is clear that the government has itself characterized the president's tweets as official statements.
i think we heard the government do that again this morning. contexts, --ety of the press secretary said that to the press, the media, the press briefing. the government has said that to various courts, including the fourth circuit. no dispute that the president's tweets are official statements of the government. >> even if that is true, what do you make of the argument that the blocking function exercised by him is a private function? that everything else may be a public forum and it may be a public twitter account, but the blocking function that he exercises is a private one? mr. jaffer: i'm not sure these two things can be separated in that way, your honor. the only reason that the president is in a position to block people from a public forum is that he is the president. the action and creation of the account -- >> he's owner of the twitter account. mr. jaffer: sorry? >> he's owner of the twitter
account and therefore can exercise that control because that comes with his ownership. mr. jaffer: that's right, your honor. it comes with his ownership. the government says every owner of a twitter account is in a position to block in the same way that the president is. i think that that argument ends up proving too much because it's also true that the owner of private property is always in a position to exclude people from a private property, but that doesn't stop us from saying when a city councilor excludes somebody from a city council meeting that that person was acting in his or her official capacity. the point here is that the president established this account in his official capacity. not only is it impossible to separate the blocking from the establishment of the account, but even if you sort of focus on the reasons why the president blocked these particular individuals -- >> he established the account in 2009. isn't that stipulated?
mr. jaffer: you're right. i didn't mean to state that he started as president. he started it before he was president but began using it as president as an extension of his office. once he began using it in that way, it became a public forum, and at that point when he blocked people from the account he was acting in his official capacity. if you look at the reasons why these particular plaintiffs were blocked, one was blocked after they complained about the president's immigration policies. another was blocked after complaining about health care policies. another was blocked after complaining about the president's policies with respect to russia. so even if you focus myopically on the reasons why the individuals were blocked in this case, they were blocked for having criticized the president about his policies, or criticized the president's decisions as president. i guess the other thing that might be worth pointing out -- >> so therefore it's the president blocking, not donald trump private citizen blocking?
mr. jaffer: i don't know of another case in which -- >> that wasn't the question. sorry, but -- mr. jaffer: i don't know of any other case in which a public official has established a public forum and then excluded somebody from the public forum and a court has said the exclusion was done in the private capacity whereas the forum was established in a governmental capacity. if there's a case like that, i don't know of it. and it doesn't seem reasonable to separate these two things in that way. >> the other side has pointed out hyannisport, or the bush ranch in texas, those are private areas even when the president is there. can the president exclude people from those properties? mr. jaffer: absolutely. it would be a different thing if tomorrow president trump said, i am going to host a meeting at -- or an open forum at mar-a-lago, anyone who wants to come can come, and i'm going to announce, make official announcements relating to my presidency, i'm going to disclose our new policy
with respect to north korea at this forum. he describes it as an official forum, open to anyone. and then he decides at the last minute to exclude people who disagree with him. it seems to me that would be a violation of the public forum doctrine. >> that's because he said it's open to anyone. but what if he has implicitly said it's really only open to people who are my supporters? mr. jaffer: then i think you'd be talking about a different kind of case. >> why isn't that this case? >> because the president didn't say that initially. the president opened this to everybody. there are 50 million followers to this account. >> so having done that, de facto and de jure, saying nothing about who can participate, he has no ability to limit this
forum that he has -- i'll say unwittingly, i'm not sure it is, but unwittingly created. >> on the basis of viewpoint. if the president tomorrow decided that he wanted to institute some viewpoint neutral time, place and manner restrictions on the account, i don't think those would necessarily raise first amendment concerns. the reason this case raises those concerns is that the president blocked these individuals because they have criticized government policy. and that is stipulated. the parties stipulated to that. >> where is that in this stip? first paragraph of the stipulation. on this issue of blocking versus the establishment of the forum, i think it's worthwhile to consider the implications of the
government's theory. if the court were to hold that this kind of blocking is beyond the reach of the first amendment, that would have implications far beyond this particular context. it would seemingly apply to the @potus account, the @whitehouse account, to any government website that has space for public comment. i think you'd be opening the door to distortion and manipulation of those spaces as well if you were to accept that -- that of our unit line of argument. >> could the president block anti-semitic material from the tweet stream, rabidly racist material? i think that under -- if the policy were viewpoint neutral, i think the first amendment might permit it. i think you'd have to analyze. >> anti-semitic.
mr. jaffer: i think, probably, yes, your honor. i think you'd have to ask about the -- so the way the court has addressed these limitation s imposed in the first instance, the court has asked whether those limitations are viewpoint neutral and whether they are necessary to facilitate the operation of a forum. if you look at a case like forbes, for example, which involved public broadcaster that excluded somebody, one candidate, from a public debate, the court asks whether the limitations that the public broadcaster had placed on this particular space were viewpoint neutral and consistent with the purposes of the forum. i think that's the analysis. i don't know that i know the answer. the ultimate answer to the question, judge parker, but i think that's the way the court would analyze it. it would be a different case from this one, because we're
stipulating in your hypothetical that it's not viewpoint neutral. >> can i ask you about a decision by the district court, they found that only first order replies were in the public forum. you maintain that the whole thread is within the public forum. why is that, if the president is not involved in those replies to replies or retweets, that other people are doing in the thread? mr. jaffer: well, i think it's because while the president doesn't have direct control over what we might call surreplies, the replies to replies, the president's decision to block somebody from his account has an effect on that person's ability to participate on the same terms as other users at that level. so, for example, if you are somebody who has been blocked from the president's account, you don't see replies to the president's tweets unless you follow the replier already independently.
and even if you see that reply, because you follow that person independently already, you don't see the tweet, the president's tweet that initiated the whole chain. and so your ability to participate on the same terms of other users, you don't have the same ability to participate on the same terms as other users, even in comment threads. ultimately, i don't think it makes a difference. >> even though electronically by -- i won't say microseconds, but you probably could put yourself in a position of being able to do that. mr. jaffer: you're right that there are workarounds. the workarounds involve both time and burden, and that is sufficient to establish a first amendment entry here. >> assuming this is a forum. >> assuming that this is a public forum. judge, just to underscore one point here, ultimately i don't think it matters whether the district court is right about
the scope of the forum or we are right about the scope of the forum, because even on the district court's view, our plaintiffs were excluded from a public forum. maybe there's a dispute about what the scope of the forum is, but the relief is the same in either -- >> you didn't cross appeal this point? mr. jaffer: we did not. >> but you think we can reach it? mr. jaffer: i don't think you need to reach it. the ultimate relief would be the same. judge hall, you asked a question, you just said, if it is a public forum. i don't think the outcome of this case would be any different even if it weren't public forum because there are two other claims. even if this is not, once you get the state action, once you've established that this account reflects state action, even if there's no public forum
involved, the president has excluded the plaintiffs from a channel used to disseminate official government information. he's excluded them for no reason other than viewpoint. he has also similarly excluded them from a channel available to the public for petition, for petitioning the president for redress of grievances and done it for no reason other than viewpoint. so you know, i think that we've litigated this case as a public forum case because the public forum case file seems to fit naturally with what the president's twitter account is. but even if it weren't the public forum, i think the government would have the same first amendment obstacle to the argument that it is. >> so if we have a concern about or choose to avoid analyzing whether it's a public -- let's -- we'll find, hypothetically, that it's not a public forum, do we need to send it back to the district court for further analysis? >> i don't think.
so it's a purely legal question. we have joint stipulation where the parties have set out the facts. i think that the parties have briefed the legal question fairly comprehensively. you could reach those. i don't want to dissuade you from reaching the public forum question. i think that's most natural body of law here, the body of law that applies most naturally, and the only question you really need to answer again, once state action is out of the way, the only question you need to answer is, was this space a space that the government opened up to the public at large for expression? and i think that question is easy to answer, but because the whole point of twitter is to facilitate interaction between users to facilitate communications. if the government had wanted a one-way channel, it could have used a blog or could have just issued more frequent press releases. instead the president used his twitter account.
twitter is called a social media platform because it allows people to respond to users and respond to one another. so i think that the question about, you know, whether the president intended to establish a forum is relatively easy to answer. >> thank you. mr. jaffer: if there are no further questions, i'll rest. >> thank you. ms. utrecht, you reserved three minutes for rebuttal. ms. utrecht: thank you, your honor. a few short points. first, we believe the threshold question should be answered before addressing whether this is a forum. >> because if it's not state action, it's not a forum? if it's not state action if, it's action by government official in their personal capacity, it cannot violate the constitution.
we see that in a number of cases where actions by people who are government officials that are acting in their personal and not official capacity who aren't wielding the authority of the state to do something do not violate the constitution. >> when you say that, is it the capacity in which the president is operating in this case? ms. utrecht: the president, when he blocks individuals from his personal twitter account, is not exercising official action or wielding the power of the state in the same way -- >> why not? on that one, when you say the president, i want to -- is the president himself actually entering the blogs? stipulated: it is that donald trump himself is the person who blocked. >> not anybody working for him. ms. utrecht: that's correct, your honor. and in the same way that, for example, if a president or any other public official were to exercise private property control, we're not talking about
a situation in which there's obviously a meeting or something that has been opened where someone had said i would like you to come talk and share with me your thoughts, we're talking about a situation where there's a blanket exclusion, i don't want you on my private property. that sort of thing is not exercising governmental control. and that brings -- >> let me ask you this. you stipulated that mr. scovino, the white house social media director, was assisting president trump in the tweets, so you're saying he wasn't involved in blocking at all? ms. utrecht: that's correct. the stipulation clearly states that no other member of staff blocked. many of the questions about state action are assuming the forum question, which is that the government has intentionally invited people to express disagreement, criticism, compliments, whatever the example was given of the davis
and fourth circuit case in which the facebook page at issue was created and the government officials specifically said the page was created in order to hear from the constituents. there was a clear and open invitation for this. by contrast, the @realdonaldtrump has always been used as a platform for his own speech. what plaintiffs would like to do here is reply directly to him. they would like to sort of use that account in order to amplify their own voice, but as we know from minnesota board of community colleges, that's not a right protected by the first amendment. >> you concede that some proportion, perhaps a significant proportion of the tweets are in his official capacity? ms. utrecht: that's true, yes, your honor. >> so could he block responses to tweets that emanated in his official capacity? ms. utrecht: twitter does not
allow users to parse their tweets in that way. they have essentially two choices. they can either protect their tweets, which is they can only be seen by people they agree to have see them, which of course would limit both the amount of people, the audience for the tweets as well as the amount of people who could reply. or they could have tweets be visible and accessible to every member of the public, including those that don't have twitter accounts, as donald trump has chosen to do here. but once that choice has been made, there's no ability to pick, for example, who can respond to a certain thing or to -- as plaintiff suggested, limit hate speech in some way. you either allow people to respond or you do not. >> so why doesn't that answer our question? if that's the nature of the debate, how can you possibly, consistent with the first amendment, exercise blocking power? ms. utrecht: because blocking
power does not keep plaintiffs from a forum. blocking power keeps plaintiffs from replying directly to donald trump. >> it pushes plaintiffs into a workaround. >> it pushes plaintiffs into a workaround if they'd like to speak directly to donald trump through his @realdonaldtrump account. but again, minnesota board of community colleges makes very clear that that's not something that's protected by the first amendment. >> you have to use the workaround to see the replies too, right? ms. utrecht: that's not true. the replies are available on twitter writ large. the search function on twitter would show replies. the individual repliers' pages also knew that. >> kit takes additional effort to do that. ms. utrecht: it takes the same amount of effort that would go to the replier's page instead of donald trump's page. in either case it's one step. they're still free to converse with other people because the
forum here is twitter, not his page. >> why are we limiting ourselves to that? just walk me through how you get there. that's the nub of what's -- ms. utrecht: right. so i think the stipulated facts show several things about the way twitter works. first is that the replies themselves aren't actually hosted on donald trump's page. they're hosted on the broader twitter universe. second, the plaintiffs have full access to everything that everyone has said to donald trump in the broader twitter universe. i think the best way of thinking about the comment thread is that there's a record of overlapping conversations that are happening, and we also know from stipulated facts that most plaintiffs have, in fact, continued to participate in conversations. if they were actually excluded from a forum, that would be true. now, plaintiffs' access to information and information -- petition claims, again, this information is available fully
to every member of the public with or without a twitter account. and, of course, the right to petition doesn't necessarily give you a right to directly talk to a public official in any manner you want what the right to petition protects is the ability -- it protects you against public officials punishing you for trying to petition. and that simply hasn't happened here with criminal penalties, financial penalties, the sorts of things we ordinarily see in right to petition cases. thank you, your honor. >> thank you very much. thank you both. well argued, well briefed, well argued. safe travels back to washington. thank you all. i will ask the clerk now please to adjourn court. >> court stands adjourned. [captions copyright national cable satellite corp. 2019] [captioning performed by the national captioning institute, which is responsible for its caption content and accuracy. visit ncicap.org] announcer: c-span's "washington every daylive
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