tv Knight Institute v. Trump Oral Argument CSPAN March 29, 2019 1:24pm-2:09pm EDT
ded] states for united the second circle. -- circuit. >> good morning. theing your argument on first amendment regarding president trump. >> good morning. trump will donald account is a twitter a cow by donald trump before he became the president that he has control over independent of his and the efforts to block people from that personal account -- in holding that this is a first amendment violation, the district court made critical errors. they incorrectly concluded that donald was wielding the power of the federal government when he locked plaintiffs from the account.
the core incorrectly concluded that the tropic out was a forum -- that the onlyuing thing independent in this presidency in the account is is blocking or the account itself? are you maintaining that position are just the blocking? >> the blocking, your honor. when you are trying to analyze whether or not state action is being invoked, look at the conduct of issue. you ask if the particular conduct at issue is wielding the power of the government whether he is exercising the privilege or authority that has been given to the defendant by virtue of his office. >> this to your account is a designated public forum? >> no, your honor. >> are you claiming the only private action was the blocking of these people. is the twitter account, is that a public forum? >> no, that is the second critical error by the district
court. we think it is the state whether question blocking is a federal authority that should be addressed, because if there is no state action, there cannot be a first amendment violation. all ofour argument that this is action -- on the defense side, it is a private party and everything is private? that,e if you are asking it is curious to me that the department of justice is here representing essentially a private entity. ina couple of students capacity and is the department's policy to represent federal officials, but these are simply incorrect when they suggest that this is something that donald trump did in his official capacity. donald trump has had the ability to block anyone from his at will
donald trump accountable for his presidency. this is not an authority he is wielding by virtue of his office. >> so just in the last few days, he has had tweets where he revoked a north korean sanction, he signed a proclamation -- it was a video -- on the golan heights, israel having sovereignty over that area, the announcement of the plaintiff to the federal reserve board, and then the washington capitol celebration at the white house for the stanley cup. those are official actions. >> while i am not contending that there is speech on the account that there are official statements, -- >> you are not contesting that he is not doing that. i think you said that he is. >> there are official statements
that are made on the account and the government has conceded that. >> [indiscernible] persistently used, not disparately -- regularly and consistently. >> certainly, there is a speech trump, butdonald that does not change the nature of blocking. >> why is this not a public forum? >> that is the second problem. your honor. >> i do not care if it is the second or third. thet the first threshold, fact that he is exercising power that he has in a personal capacity that he will continue to have after he is president makes this not state action. if a private individual is -- assuming that we do contest this is a public forum -- >> that the president can
engage in a viewpoint, when he is no longer president, he can still do it when he is president? >> that's not the case. is whethern excluding someone from private property would be wilting the authority of the government. it is certainly a case of the president's private residence -- >> what sort of forum is this in your view? >> this is not a forum at all, your honor. i am happy to explain why. the fundamental question is whether the government had intentionally opened up property, whether it was government's property first and whether they intentionally opened up that property. it can be presently own the property like a southeast promotions case, where it is an auditorium but it is owned by
someone else, but at leased two minutes of quality. to the missa polity. private party.urt if you control that form which the city did then your actions or state actions -- our state actions and it is a public forum. how is it different from blocking someone saying we will not allow the production of hair. the supreme court that is a violation of the first amendment for express -- expressive speech. twitter is owned by somebody else but -- how does that differ from that case? >> we need to analyze who is what capacity they are doing that in separately from what form is. if there were what a public ford -- orate individual who
to kick someone out it would not consider that government action. t-rex not if it were the president. president does many things in our arsenal capacity. when we are talking about a personal account or personally owned property or any resident that has been -- residence there has been owned, they are picked -- obtain their private property rights and -- >> are you seriously urging us to believe the president is not acting in his official capacity when he is tweeting? >> i am asking you to uphold -- >> let me rephrase that. before we get to the blocking when he is tweeting, is he acting in his president does may things in official capacity? >> sometimes, yes. the critical point here is you
the issue,lyze separately from other things that happened on the property. at the white house individual personal actions take place subject to the first amendment. that does not change the fundamental nature. robuste is a repost -- oflogue on matters 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 is in that -- isn't that -- quintessential first amendment violation? >> i take issue with several of
the things that were said to it is important to keep in mind all the things that people who are blocked are capable of doing. >> and what they're capable of doing. >> in the case where they were --luded they would not >> that is a defense of viewpoint discrimination. >> am not sure in. >> the fact that someone can go down the street and express a not a defenseis to government expressing a point of view in a forum -- >> the trump account is not a this is an attempt to analogize as a public forum. >> what is missing, he does not
for anyone totion respond? >> this is an account that has been opened up as a platform for his own speech. if you think of twitter -- >> has not been opened up to who arey all the folks liking and replying? >> i don't think that is necessarily true. the analogy i'm about to give might help illustrate. the better way of thinking about how twitter works is twitter itself -- >> we are engaged in a great conversation here as we try to figure this out. if you and add five minutes to -- would add five minutes to this. of twitter writ large, the entire privately owned platform as a private
areping mall or park there many overlapping conversations that happen on twitter, each toson uses their account 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 if he on at donald trump were to delete the tweet, the things that people have said to them when exist elsewhere, you could see them on the accounts, person whount of the has replied. lee's comment threads are better seen as a record of the conversations that are happening across twitter. locks someoneump
he is not keeping them from these conversations, he is not -- >> he is making it more difficult for them to access his tweets commands and he? there are ways to go around this with other shadow accounts. it is not as effective as when you can simply respond, you can reply to one of his tweets are apply to or applied. --all of the >> and does not have to be much more burdensome. you would have to move down the street. that is why there is a first amendment. >> this does not have to be more burdensome but what we have discussed his people do not accept -- have access to greater conversations that are happening . twitter shows they are not burdened from their access to a forum, they are burden from their herbal -- 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 today is it amendmentt jurisprudence. >> if this were to they considered to take -- b state action -- >> that is a hypothetical. the viewpoint discrimination would not be permissible. neither of those elements are present. since both something conducted in his personal capacity -- >> when you say something conducted in his personal capacity, what does that mean? in light of the long parade, we lessite and this -- and
and a lengthy list of examples of what is undisputedly official business being conducted over twitter. >> that is 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 he disagrees with. >> private individuals do that all the time. >> he is not a private official. you're not here because he is not a private individual. your presence represents the fact that this is a public forum. >> if he was on the street and someone approached him as he walked away we cannot say that exercisinge, he was choice --say his >> i don't see why that helps. >> 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 about his tweets and continuing to criticize him, continuing to engage with everyone 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, 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 him he will engage with and have theersations with but an -- civil round, we do not think about the choices as creating a space or a forum. thate archives have said are official records that must be retained and
maintained and presumably find their way to the archives. would you agree that the also to is entitled the applause and their retweets and the likes. >> i am not an expert in presidential record-keeping laws, the standard is that the electronic communications if we consider it to be electronic communications are related to the duties of his office must be maintained so they can be passed on to the next president to facilitate transition. -- am not sure whether we would consider things that people expressed to the president on the internet in all circumstances to be within that. with the likes in
their retweets and so forth. you think that the archives request does not cover them? >> that is -- there is reason to believe they are not covered. >> that seems to make no sense if the tweet is official public records than -- letters in the physical realm that would be sent to the president that i imagine are a requirement to has beeny letter he mailed. there is not a requirement for every single reply and statement he makes to be kept and maintained by the record. >> you think the president or someone in the white house could go through the accounts and only retain, only turn over to the tweets themselves, you think that would comply with the archives' request? the decisions that
are made by white house lawyers. the management is not handled by archives but rather by the president and staff. >> 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 and these social media often serve the same purposes as forums like city council meetings or school board meetings or town halls. >> fourth circuit said facebook is a public forum. is there any difference between facebook and the twitter account?
>> the platforms are different. i think in individual cases, the plaintiffs can make a case that an account on facebook is a public forum. case is rightly decided eerie at i don't think it follows from this case from the district court decision that every public officials account , on everyorum platform is a public forum, you have to look at the way the account is used among what resources were used to support these accounts, -- >> what factors we look at? >> 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 and connection with this accounts of other government officials have access to the
account. they draft tweets for the president to post himself, sometimes they propose language for tweets that the president posts so this is not an account the president operates on its own, it is an account that andlves substantial sustained involvement or investment of resources by other government personnel. second paragraph my 37 of the joint stipulation makes clear that the government has characterized the president's tweets as official statements and we heard the government do that again this morning. theay of contexts now, government has characterized the tweets has -- as official. the press secretary said that to the press and the press briefing. the government has said it to various courts including the fourth circuit so there is no -- no dispute that the president's tweets are official statements of the government.
>> what do you make of the argument that the blocking function exercised by him is a private function, everything else may be a public forum but there may be a public twitting -- twitter account but the blocking function is private. >> i'm not sure they can be separated in that way. the only reason the president is in a position to block people from a public forum is that he there is statet, action and the creation of the account. >> he is owner of the twitter account and can exercise that control because that comes with his ownership. >> that is right. that comes with his ownership, the government says that every owner of the twitter account is in a position to block in the same way the president did. that argument ends of proving too much because it is true that the owner of private property is excluden a position to
people from private property but that does not stop us from saying when a city council exclude someone from a meeting that that person was acting in his or her official capacity. the point here is that the president established the account in his official capacity. not only is it impossible to separate the blocking from the establishment but even if you focus on the reasons why the president block to these particular individuals -- >> that stipulated? >> i did mean to say he started it before he was president that he began using it as president as the 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 plaintiffs were blocked, one of them was blocked after he 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. even if you focus myopically on the reasons individuals were blocked, they were blocked for having criticized the president about his policies or criticized the president's decisions as president. be --her thing that might blockingthe president a private citizen. >> i don't know of another case officialch a public has established a public forum and excluded someone from the wasic forum, the explosion done in his private capacity while the forum was established in a governmental capacity. if there is a case like that i
do not know of it and it does not seem reasonable to separate these two things in that way. hyannisport or the bush ranch in texas, it was her private areas even when the president is there. the president exclude people from those? >> absolutely. tomorrow, president trump says i am going to host a meeting or an open forum at mar-a-lago, anyone who wants to come can come and i am going to announce, make official announcements relating to my presidency, i will disclose our new policy with respect to north korea at this forum. isis an official form, it 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. said it was open to anyone but what if he implicitly said
it is open to people who are supporters? >> you would be talking a different kind of case. the president did not say that initially, he opened this to everyone, there are 50 million followers to this account. there are cases like -- >> had he done that, de facto and de jure, not having said anyone who can participate, he has no ability to limit this forum that unwittinglyl say created. >> if the president tomorrow decided he wanted to institute some viewpoint neutral restrictions on this account, i don't things -- think that would raise first amendment concerns. the president block to these
individuals because they criticized government policy and that is stipulated, the parties have stipulated. i want to point out one consequence. that?re is >> right in the opening. of blocking versus the establishment of the forum, it is worthwhile to consider the indications of the government. 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 context. it would seemingly applied to the white house account, it would apply to every government went -- website that has or public comments. you would be opening the door to
distortion and manipulation of those spaces as well if you were to accept that line of argument area and >> could the president anti-semitic material from the tweet stream. rabidly racist material? >> i think if the policy review -- were viewpoint neutral the first amendment might permit it, you would have to analyze -- >> anti-semitic. >> i think probably yes, your honor. i think you would have to ask -- the way the court has addressed these limitations that are imposed in the first instance, the court has asked whether those limitations are viewpoint neutral and whether to facilitatesary the operation of the forum so if you look at a case like forbes
which involved the public broadcaster that excluded one candidate from a public debate. the court asked whether the limitations that the public broadcaster had placed on this space were viewpoint neutral and consistent with the purposes of the forum. that is the analysis. that i know the answer to the question but that is the way the court would analyze it. it would be a different case from this one. we are stipulating in your hypothetical it is not viewpoint neutral. >> could i ask you about a decision, the district court found that only first order replies were in the forum. you maintain the thread is within the public forum. what is that if the president is not involved to replies or retweets that other people are doing in the thread?
because whileis the president does not have over replies to replies, the president's decision to block someone from his account has an effect on that person's ability to participate on the same terms as other users at that level so if you are someone who has been blocked from the president's account, you do not see replies to the president's tweets unless you follow their apply or already independently. if and if you see that reply because you follow that person independently you don't see the tweet, the president's tweet that initiated the chain. and so your ability to participate on the same terms as other users, you do not have the same ability to participate on the same terms in the comment threads. electronically,
you can put yourself in a position of being able to do that. >> you're right that there are .orkarounds the workarounds involve time and burden and that is sufficient to amendmentthe first [indiscernible] assuming it is a public forum. two underscore one point here, ultimately i don't think it matters whether the district court is right about the scope of the form or we are right about the scope because even on the district court's view, our plaintiffs were excluded from a public forum. aboutthere is a dispute the scope but the relief is the same. .> you think we can reach it >> i don't think you need to. it doesn't matter. the ultimate relief would be the
same. question or you just said if it is a public the outcome't think of this case would be any different even if it were not a public forum because of our two other claims. even if this -- once you get the state action, once you have established this account reflects a state action, even if there is no public form involved, the president has acluded the plaintiffs from channel used to disseminate official government information and he has excluded them for no reason other than viewpoint and he is similarly excluding them from a channel available to the public for petition, petitioning the president and has done it again for no reason other than viewpoint. litigated this case as a
public form case because the case law seems to fit naturally president'se twitter account is. not the if it were government would have the same first amendment obstacle to the argument. about orhave a concern choose to avoid analyzing whether it is a public office, you will find it is not a public form, do a need to send it back to district court for further analysis? >> i don't think so. we have a joint stipulation with parties and the parties have reefed the legal question comprehensively. i don't want to dissuade you from reaching the question. that is the most natural body of law here, the body of law that applies most naturally. the only question you need to answer again, one state action
is out of the way, the only question you need to answer is was the space a space the government opened up to the public at large for expression? and i think that question is easy to answer. 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 issued more frequent rest releases but instead, the president used his twitter account and twitter is called a social media platform because it allows people to respond to users and respond to one another. i think the question about whether the president intended to establish a forum is relatively easy to answer. if there are no further questions. >> thank you.
>> reserve three minutes for rebuttal. >> thank you, your honor, a few short points. we believe the state, the threshold question that should be answered before addressing if this is a form or plaintiffs other arguments, -- >> if it is not state action it is not a forum? governmenttion by a official, it cannot highly the constitution. we have seen that where actions by people who are government in their acting official opacity -- capacity [indiscernible] >> that is the capacity in which the president's offering in this case? >> the president has blocked individuals from his personal
account, that is not exercising official action are wielding the power of the state. >> when you say the president i want to, is the president himself actually answering the blogs? stipulated that donald trump himself is the person who blocked. >> not anyone working for him. >> that is correct. that for example, if a president or any other public official were to exercise private property control, we are not talking about a situation where there is a meeting or something that has been opened where someone has said i would like you to come talk and share with me your thoughts. we are talking about a situation where there's a blanket exclusive -- exclusion, that sort of thing is not exercising government control. that the stipulated
white house social media director was assisting president , has and the tweets historically. you're saying he was not involved in blocking, >> that is correct. the stipulation states donald trump had -- or other members of the staff is the person who blocked individual plaintiffs. many of the difficult questions of that action are assuming the forum question which is that the government has intentionally invited people to express disagreement, criticism, complements, whatever the casele was given in the where the facebook page at issue government and the official said the page was created in order to hear from the constituents. there was a clear and open invitation. the account has always been used as a platform for his own speech. what plaintiffs would like to do here is reply to him, they would like to use that account in
order to amplify their own voice but as we know from another case that is not a right protected by the first amendment. >> you can see that some proportion, perhaps a of thecant proportion tweets are in his official capacity. >> that is true. responses tock hists that emanated from conditional -- official capacity? userstter does not allow to parse their tweets, they can protect their tweets which they can only be seen by people they have agreed to have seen which would limit the amount of people , the audience as well as the amount of people who could reply or they can have tweets be visible and accessible to every member of the public including those that do not have twitter accounts as donald trump has
chosen to do here. once that choice has been made my there is no ability to pick who can respond to a certain as light of suggestion -- suggested limit hate speech. you either allow people to respond or you do not. >> why does and that answer a question if that is the nature of the debate, how can you , consistent with the first amendment, exercise blocking power? >> blocking power does not keep plaintiffs from a form, blocking power keeps plaintiffs from applying -- replying to donald trump. >> that pushes plaintiffs into a workaround. you block users. like to speakld directly to donald trump through his account.
is not something that is protected by the first amendment. the replies are available on twitter at large. the search function which shows the replies and they were players ages. players ages. they are still free to converse with these people because the forum here is twitter, not his page. and -- >> where we the meeting ourselves to that? >> so -- >> lucky how you get there. -- walk me how you get there. >> are several things about the way twitter works. the replies are hosted on the
broader twitter universe. the places have full access to everything that everyone has said in the broader twitter universe. that there is a record of these conversations that are happening and we have that most of the plaintiffs have continued to participate. if they were excluded from a form that would be true. this information is available fully to any member of the public and the right does not give you a right to talk to a public official in any manner you want. it protects you from public officials punishing you for trying to petition. have not seen the types of
things we ordinarily see in right to petition cases. >> thank you. well argued. safe travels back to washington. thank you all. i will ask the court -- the clerk to adjourn court. >> court is adjourned. have more road to the white house coverage this weekend. former texas congressman beto o'rourke kicks off his presidential campaign it now -- in el paso saturday. we'll have live coverage tomorrow at 12:30 p.m. eastern. next week wednesday, the senate will join the house for a joint meeting to hear the nato secretary address congress area 11:00 a.m.e at eastern wednesday. you can see all of our coverage online at c-span.org and with the free c-span radio app.
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city policy is. guest: it is a term we hear a lot. it goes back to 1984. ronald reagan, his administration in a conference on family planning with yo the u.n. announced a policy that we any organization that funded abortion or promoted abortion. that was in place during the reagan administration. put back in place by the bush administration in 2001 -- host: what was announced this week? guest: closing some loopholes. there was an expansion of the mexico city policy initially under the trump administration. it