tv Knight Institute v. Trump Oral Argument CSPAN March 31, 2019 12:54am-1:37am EDT
of blocking some users from his personal twitter account. a u.s. district court ruled against the president on first amendment grounds. the appeal is now before the second circuit, which heard the oral argument in the case tuesday. this is 40 minutes. >> we will hear arguments versus donald j. trump. good morning, your honor. account issuemp is a twitter account created by donald trump before he became president. he has control over independence of his presidency, and has
exercised his ability to block people from that personal account. an ability he shares with twitter users. the district court made two critical errors. they incorrectly concluded that donald trump was wielding the power of the federal government when he blocked plaintiffs from the account. second, the court incorrectly the account was a form in which it was excluded. >> argue arguing the only thing in the pendant of his presidency is the blocking? are you still maintaining that position or just the blocking? >> the blocking. when you are trying to analyze state action is being invoked, you look at the particular conduct. you ask whether the conduct at issue is wielding the power of the government, or is exercising its authority that has been given to the defendant by virtue of their office. >>'s twitter account is a
designated public forum? >> no, your honor. >> the question i ask is whether you are claiming the only private action he took was of blocking these people? is the twitter account a public forum? >> no. that goes to the second critical error by the district court. we believe that the state action in question whether blocking itself is government authority is a question that should be addressed before the public forum. if there is no state action, there cannot be a first amendment violation. the constitution does not prohibit private parties from -- on theour argument that, defense side, it is a private party? that,e if you are asking it is curious to me that the department of justice is here representing a private entity. is an unofficial
capacity. it is the department's policy to defend public officials who are in their official capacity. when theyrrect suggest that this is something that donald trump did an ache official capacity. donald trump has had the ability account anyone from his long before his presidency. authority he is wielding by virtue of his office. days hein the last few has had tweets where he revoked the north korean sanctions, he , israel proclamation having sovereignty over the area. he announced an appointment to the federal reserve board.
and then the winning of the stanley cup. we are not contending that -- on this account. there are statements on the account that are certainly official statements. >> you are not contesting that he is not doing that. you said he is doing that. >> there are official statements made on the account. the government has conceded that in different cases. not just sporadically. regularly and consistent. >> there was speech made regularly that could constitute as official statements. that does not change the nature of blocking. >> why isn't this a public forum? >> the question -- >> i don't care whether it goes
to second or third. thate first threshold is he is exercising power that he has in his capacity, that he will continue to have after he is president. if a private individual were assume -- which we do contested is a public forum. the president can engage because he can engage in when het discrimination is no longer president. he can still do it when he is president? >> that is not the case. the question is whether excluding someone from private property is wielding the authority of the government. for example, the president's private residence -- >> what kind of forum is this in your view? >> this is not a forum at all. i am happy to explain why and move on. is fundamental question
whether the government has intentionally opened a property. whether the government has intentionally opened up that property. >> so it can be part of the property controlled by the >> it is an auditorium that is owned by somebody else. the municipality blocked a production of "hair." the supreme court said you could not do that, even though it is a private party. , it iscontrol that forum a public forum. how is that different from blocking here?
twitter is owned by somebody else. it's a private action, you claim, of blocking. how is it different from that case? >> we need to analyze who was blocking and in what capacity. separately from what the forum is. if there were a public forum and a private individual were to try to kick someone out of that forum you wouldn't consider that to be government action pursuant to the first amendment. >> i would if it was the president of the united states. >> i don't think that's true. he does many things in his personal capacity. a private individual were to try it's a personally owned account or property. such as any of the private residences that have been controlled by presidents during their presidency. they retain their private property rights apart from the presidency. >> are you seriously urging us to believe that the president is not acting in his official
capacity when he is tweeting? >> i'm asking you -- >> let me rephrase that. before we get to the blocking, when he is tweeting, is he acting in his official capacity? >> sometimes, yes. i think the critical point here is that you have to analyze the conduct at issue, the blocking, separately from other things that happen on that property. at the white house, individual actions take place that are not subject to the first amendment. similarly, things happen at mar-a-lago that might be official actions. that doesn't change the fundamental nature. >> we have a situation where there is an open, robust, worldwide dialogue on matters of transcendent public importance.
what the blocking does, correct me if i'm wrong, is subtract from that discussion, points of view that the president doesn't like. why isn't that just quintessentially a first amendment violation? >> i take issue with several of the things that were just said. >> go ahead. >> as to the forum point. it's important to keep in mind, all the things that people who are blocked or still capable of doing. >> i know what they are capable of. >> in the case in which they were actually excluded from the space, they would not hear things -- >> that's not a defense to viewpoint discrimination. >> i'm 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 suppressing particular points of view.
>> i think that underscores the overall point here that the @realdonaldtrump account is not a forum at all. the plaintiffs have attempted 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. they have to. >> what's missing? he doesn't have the potential for anybody to respond? >> that's certainly true. this is an account that has been opened up as a platform for his own speech. a more apt analogy is if you think of twitter writ large. >> hasn't it been opened to all speech of people who are liking and replying? >> that's not certainly true. the knowledge you that i was about to give might help us drill it -- illustrate. >> i hope it's not more mar-a-lago.
>> the better way of thinking how twitter works, we are obviously engaged in a great conversation here as we try to figure this out. >> victor, if you would add five minutes to this for the plaintiffs thank you, your honor. >> if you think of twitter writ large, the entire platform, as a private shopping mall or park, there are many overlapping conversations that happen on twitter. each person uses their account in order to speak into that larger, private forum. the discussions aren't happening specifically on donald trump's account. they are happening across twitter in response to what he has said. the best example i can give up this is that the replies themselves are not hosted on his account. if he were to delete a tweet, the things that people have sent directly to him would exist elsewhere. you could see them on the accounts of the twitter
individual account owners who had replied. really, these comment threads are better seen as a record of the conversations that are happening across twitter. when donald trump blocks someone, he's not keeping them from these conversations. he's making it a much more -- difficult for them to access his tweets, isn't he? there are ways to go around this with shadow and accounts and other ways of going on the internet. it still a much more burdensome and not as effective as if you could simply respond to his tweet. a reply to a reply. >> i don't think it's much more burdensome. >> isn't that judge parker's point? the first amendment doesn't have to be much more burdensome, if it's more burdensome at all, if you have to move down the street that violates the first amendment.
>> if it is a forum, it does not have to be more burdensome. the things we have just discussed, people still have access to the greater conversations that are happening. in twitter, it shows that they are not burdened from their access to a forum, they're burdened from their ability to reply directly. >> assuming that this is a public forum and that what we have here is viewpoint discrimination, does the existence of a workaround, it's not a defense to that, is it? under first amendment jurisprudence. >> if this were considered to be an action taken in his official capacity and not his personal capacity -- >> that's a hypothetical. >> and this were considered a public forum, then viewpoint discrimination would not be permissible. neither of those two are present here. this is both 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 can cite you endless -- quite lengthy lists of examples of what is undisputedly official business being conducted on twitter. >> that's certainly true. we have to look at the individual nature of blocking and what powers are being exercised when the president block someone. >> excluding people whose viewpoints he doesn't -- he disagrees with. >> certainly private individuals do that all the time. >> he's not a private individual. we are here because he's not a private individual. your very presence here represents that this is a public forum.
>> if he was on the street and someone approached him and he walked away from that person, we wouldn't say either that that was a choice or a power he was exercising by virtue of his governmental authority. nor would we say that his choice to walk away from him that was a forum. >> i don't see how that helps you. >> i think it helps illustrate the underlying point here which is that plaintiffs have been blocked from being able to directly reply to donald trump but they are capable of having conversations both about his tweets, both continuing to criticize him, continuing to engage with everyone else who is talking about what he has to say. they're still part of the overall privately owned forum that is twitter but his account itself, i think the better way of looking at it is he's not a regulator of a forum, he's a participant in a forum. he's a participant in twitter, not acting in a controlling way. he's choosing with whom he's going to engage with and have conversations with but ordinary, commonsense, physical realm, we
don't think about the choices as creating a space or forum. >> the archives have said that all 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 retweets and the likes? >> i am not an expert in presidential recordkeeping laws. i know that the standard is that the president's electronic communications, if we consider these to be electronic communications, that are related to the constitutional, statutory, official duties of his office must be maintained to
pass on to the next president in order to facilitate transition. i'm not sure whether we would consider things that people expressed to the president on the internet in all circumstances to be within that. >> not in all circumstances. the record with the likes and retweets and so forth? do you think that the archives requests doesn't cover them? >> i think there's reason to believe it might not cover them but i'm not -- >> what's your best reason for -- that seems to make no sense. if the tweet is official public record, then the -- >> certainly there are many letters, for example, in the physical realm that would be sent to the president that i imagine there isn't a requirement for the president to keep every single letter that has been mailed to him, similarly i don't think there would be a requirement for every
single reply to a statement he makes on his twitter account to be kept and maintained by the record. single reply to a statement he >> do you think the president or someone in the white house then 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? >> it's possible. again these are decisions usually made by white house lawyers and i'm not entirely familiar with how those decisions are made. the management is not handled by the archive bus rather by the president and his staff. >> thank you, ms. utrecht. you have reserved three minutes for rebuttal. >> thank you. >> good morning, your honors. public officials across the country now use social media to communicate with and to hear from their constituents. and these social media accounts often serve the same purposes as
forums like city council meetings or school board meetings or town halls. >> fourth circuit just said facebook utilized by a county supervisor is a public forum. is there any material difference between facebook and the twitter account here? >> the platforms are different, i think that in individual cases the plaintiffs might be able to make a case that a particular account on facebook is a public forum. we were council to davison in the fourth circuit case, we think that case is decided, but i don't think that it follows from this case or from the district court's decision in this case that every public official's account on every forum on every platform is a public forum.
i think you'd have to look at the way the account is used, what resources were used to support the account, and -- >> what factors do we look at then? >> i think there are three paragraphs of the joint stipulation here that might be particularly useful to you. one is paragraph 39 which makes clear that the president uses official government resources in connection with this account so other government officials that have access to the account. they draft tweeters in president to post himself. sometimes they propose language for tweets that the president posts. this is not an account that the president operates on his own. it's an account that involves the substantial and sustained involvement or investment of resources by other government personnel. second, paragraph 37 of the joint stipulation makes 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. in a variety of contexts now, the government has characterized the president's tweets as official.
the press secretary said that to the press, to the media, in a press briefing. the government has said it to various courts including the fourth circuit. i think there's no dispute that the president's tweets are official statements of the government. the president's tweets are >> even if that's 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 but -- it may be a public twitter account, but the blocking function that he exercises is a private one? >> 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. >> sorry?
>> he's owner of the twitter account and therefore can exercise that control because that comes with his ownership. >> that's right, your honor. it comes with his ownership. the government says every owner of a twitter account is in a position 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 but even if you sort of focus on the reasons why the president
blocked these particular individuals -- >> he established the account in 2009. >> you're right. i didn't mean to start it he started it as president he started it before he was president but began using it as president asen 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 criticize the president's decisions as president. i guess the other thing that might be -- so therefore it's the president blocking, not donald trump private citizen blocking? >> i don't know of another case
in which -- >> sorry but -- >> 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 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? >> 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? >> 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 the president open thod 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 decided 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 criticized government policy. and that is stipulated. the parties stipulated to that. >> where is that stipulated? >> 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 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, to any account with 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 line of argument. >> could the president block anti-semitic material from the tweets? 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. >> i think probably yes, your honor.
i think you'd have to ask about the -- so the way the court addressed these limitation the limitations 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
than 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? >> well, i think it's because while the president doesn't have direct control over what we might call replies, 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, you are somebody who has been blocked on 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 on comment threads. >> even though electronically by -- i won't say microseconds, but you probably could put yourself in a position of being able to do that? >> you're right that there are workarounds. the workarounds involve both time and burden and that is sufficient to establish a first amendment injury 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? >> we did not. >> you think we can reach it -- >> 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. >> 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 because the full point of twitter is to facilitate interaction between users to facilitate communications. if the government had wanted a one-way channel it would 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 again relatively easy to answer. >> thank you. >> if there are no further questions, i'll rest. >> thank you. ms. utrecht, you reserved three minutes for rebuttal. >> 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 states like 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. >> you say that is the capacity in which the president is operating in this case? >> the president, when he blocks individuals from his -- >> when he blocks. >> 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 blocks? >> it's stipulated, that is stipulated that donald trump himself is the person who blocked. >> not anybody working for him. >> 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? >> 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? >> that's true, yes, your honor. >> so could he block responses to tweets that emanated his
official capacity? >> twitter does not allow users to parse their tweets in that way. there are -- 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 am of people who could reply. or they can 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. >> why couldn'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? >> 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 plaintiff 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 replies, right? >> that's not true. the replies are available on twitter writ large. the search function on twitter would show replies. she individual repliers page would show them. >> that takes additional effort to do that? >> 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 if we want to talk about it, is twitter, not his
page. >> why are we limiting ourselves to that? walk me through how you get there. that's the nub of what's -- >> 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 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 claims this information is available fully to every member of the public with or without a twitter account. 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 of 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] night, a supreme court reporter talks about her latest
book, a biography of chief justice john roberts. >> john roberts controls however he votes now. he will determine the law of the land. the liberals want him to come little bit. but the conservatives are trying to hold him back. where yours was. meanwhile, you have this chief justice declaring there is no such thing as an obama judge, there is no such thing as a trump judge, there is no such thing as a bonus judge. he wants to project events that is not political, when they all have their agendas of sorts. >> sunday night at 8:00 eastern. the senate budget committee met this week to consider amendments to a 2020 budget resolution proposed by committee chair mike enzi. the amendments adjust tax issues come aboard a security, housing