CLOSED,APPEAL,ECF
U.S. District Court Southern District of New York (Foley Square) CIVIL DOCKET FOR CASE #: 1:17-cv-05205-NRB

Knight First Amendment Institute at Columbia University et al v. Trump et al Assigned to: Judge Naomi Reice Buchwald Cause: 28:1331cv Fed. Question: Other Civil Rights

Date Filed: 07/11/2017 Date Terminated: 05/23/2018 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Plaintiff
Knight First Amendment Institute at Columbia University

represented by Alexander Abraham Abdo Knight First Amendement Institute at Columbia University 475 Riverside Drive, Suite 302 New York, NY 10115 646-745-8500 Email: alex.abdo@knightcolumbia.org ATTORNEY TO BE NOTICED

Jessica Ring Amunson Jenner & Block, LLP (DC) 1099 New York Avenue, N.W. Suite 900 Washington, DC 20001-4412 (202)-639-6023 Fax: (202)-661-4993 Email: jamunson@jenner.com ATTORNEY TO BE NOTICED

Katherine Amy Fallow Knight First Amendment Institute At Columbia University 535 West 116th Street New York, NY 10027 (212)-854-1086 Email: katie.fallow@knightcolumbia.org ATTORNEY TO BE NOTICED

Plaintiff Rebecca Buckwalter
Plaintiff Philip Cohen

Tassity S. Johnson Jenner & Block, LLP (DC) 1099 New York Avenue, N.W. Suite 900 Washington, DC 20001-4412 (202)-637-6303 Fax: (202)-639-6066 Email: tjohnson@jenner.com ATTORNEY TO BE NOTICED
Jameel Jaffer American Civil Liberties Union (NYC) 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-7814 Fax: (212) 549-2629 Email: jameel.jaffer@knightcolumbia.org ATTORNEY TO BE NOTICED
represented by Alexander Abraham Abdo (See above for address) ATTORNEY TO BE NOTICED
Katherine Amy Fallow (See above for address) ATTORNEY TO BE NOTICED
Jameel Jaffer (See above for address) ATTORNEY TO BE NOTICED
represented by Alexander Abraham Abdo (See above for address) ATTORNEY TO BE NOTICED
Katherine Amy Fallow (See above for address) ATTORNEY TO BE NOTICED
Jameel Jaffer (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Holly Figueroa
Plaintiff Eugene Gu
Plaintiff Brandon Neely
Plaintiff Joseph Papp

represented by Alexander Abraham Abdo (See above for address) ATTORNEY TO BE NOTICED
Katherine Amy Fallow (See above for address) ATTORNEY TO BE NOTICED
Jameel Jaffer (See above for address) ATTORNEY TO BE NOTICED
represented by Alexander Abraham Abdo (See above for address) ATTORNEY TO BE NOTICED
Katherine Amy Fallow (See above for address) ATTORNEY TO BE NOTICED
Jameel Jaffer (See above for address) ATTORNEY TO BE NOTICED
represented by Alexander Abraham Abdo (See above for address) ATTORNEY TO BE NOTICED
Katherine Amy Fallow (See above for address) ATTORNEY TO BE NOTICED
Jameel Jaffer (See above for address) ATTORNEY TO BE NOTICED
represented by Alexander Abraham Abdo (See above for address) ATTORNEY TO BE NOTICED
Katherine Amy Fallow (See above for address)

Plaintiff Nicholas Pappas
V. Defendant Donald J. Trump President of the United States

ATTORNEY TO BE NOTICED
Jameel Jaffer (See above for address) ATTORNEY TO BE NOTICED
represented by Alexander Abraham Abdo (See above for address) ATTORNEY TO BE NOTICED
Katherine Amy Fallow (See above for address) ATTORNEY TO BE NOTICED
Jameel Jaffer (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Hendry Baer U.S. Department of Justice, Civil Division Federal Programs Branch 20 Massachusetts Ave., N.W. Washington, DC 20530 (202) 305-8573 Email: michael.h.baer@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cody Taylor Knapp DOJ-Civ 1100 L Street Room 12004 Washington, DC 20005 202-514-1318 Email: cody.t.knapp@usdoj.gov ATTORNEY TO BE NOTICED
Daniel Halainen U.S. Department of Justice Civil Division, Federal Programs Branch

Defendant Sean M Spicer White House Press Secretary
Defendant Daniel Scavino White House Director of Social Media and Assistant to the President
Amicus Amici First Amendment Scholars
Amicus

20 Massachusetts Avenue, N.W. Washington, DC 20530 (202)-616-8101 Email: daniel.j.halainen@usdoj.gov TERMINATED: 09/16/2019
represented by Michael Hendry Baer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cody Taylor Knapp (See above for address) ATTORNEY TO BE NOTICED
Daniel Halainen (See above for address) TERMINATED: 09/16/2019
represented by Michael Hendry Baer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Cody Taylor Knapp (See above for address) ATTORNEY TO BE NOTICED
Daniel Halainen (See above for address) TERMINATED: 09/16/2019
represented by Joshua Alexander Geltzer Institute For Constitutional Advocacy and Protection 600 New Jersey Ave NW Washington, DC 20001 (202)-661-6728 Email: jg1861@georgetown.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED

Electronic Frontier Foundation
Amicus Amici Curiae Federal Courts Scholars

represented by Mitchell L. Stoltz Electronic Frontier Foundation 18 Eddy Street San Francisco, CA 94109 415-436-9333 Fax: 415-436-9993 Email: mitch@eff.org ATTORNEY TO BE NOTICED
represented by Brian Timothy Burgess Goodwin Procter LLP 1900 N St NW Washington, DC 20036 202-346-4000 Email: bburgess@goodwinlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew Kim Goodwin Procter, LLP (DC) 901 New York Avenue, N.W. Washington, DC 20001 1 202 346 4165 Fax: 1 202 204 7341 Email: andrewkim@goodwinlaw.com ATTORNEY TO BE NOTICED

Date Filed 07/11/2017
07/11/2017 07/11/2017

# Docket Text

COMPLAINT against Daniel Scavino, Sean M Spicer, Donald J.

1

Trump. (Filing Fee $ 400.00, Receipt Number 0208-

13881127)Document filed by Brandon Neely, Philip Cohen, Joseph

Papp, Rebecca Buckwalter, Nicholas Pappas, Holly Figueroa, Knight

First Amendment Institute at Columbia University, Eugene

Gu.(Jaffer, Jameel) (Entered: 07/11/2017)

CIVIL COVER SHEET filed. (Jaffer, Jameel) (Entered: 07/11/2017) 2

3 RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by Knight First Amendment Institute at Columbia University.(Jaffer, Jameel) (Entered: 07/11/2017)

07/11/2017
07/11/2017
07/11/2017
07/12/2017
07/12/2017
07/12/2017 07/12/2017 07/12/2017 07/12/2017

REQUEST FOR ISSUANCE OF SUMMONS as to Donald J. 4
Trump, re: 1 Complaint,. Document filed by Rebecca Buckwalter, Philip Cohen, Holly Figueroa, Eugene Gu, Knight First Amendment Institute at Columbia University, Brandon Neely, Joseph Papp, Nicholas Pappas. (Jaffer, Jameel) (Entered: 07/11/2017)
REQUEST FOR ISSUANCE OF SUMMONS as to Daniel Scavino, 5
re: 1 Complaint,. Document filed by Rebecca Buckwalter, Philip Cohen, Holly Figueroa, Eugene Gu, Knight First Amendment Institute at Columbia University, Brandon Neely, Joseph Papp, Nicholas Pappas. (Jaffer, Jameel) (Entered: 07/11/2017)
6 REQUEST FOR ISSUANCE OF SUMMONS as to Sean M. Spicer,
re: 1 Complaint,. Document filed by Rebecca Buckwalter, Philip Cohen, Holly Figueroa, Eugene Gu, Knight First Amendment Institute at Columbia University, Brandon Neely, Joseph Papp, Nicholas Pappas. (Jaffer, Jameel) (Entered: 07/11/2017)
CASE OPENING INITIAL ASSIGNMENT NOTICE: The aboveentitled action is assigned to Judge Naomi Reice Buchwald. Please download and review the Individual Practices of the assigned District Judge, located at http://nysd.uscourts.gov/judges/District. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at http://nysd.uscourts.gov/ecf_filing.php. (kl) (Entered: 07/12/2017)
Magistrate Judge Debra C. Freeman is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: http://nysd.uscourts.gov/forms.php. (kl) (Entered: 07/12/2017)
Case Designated ECF. (kl) (Entered: 07/12/2017)
7 ELECTRONIC SUMMONS ISSUED as to Donald J. Trump. (kl) (Main Document 7 replaced on 7/12/2017) (kl). (Entered: 07/12/2017)
8 ELECTRONIC SUMMONS ISSUED as to Daniel Scavino. (kl) (Entered: 07/12/2017)
9 ELECTRONIC SUMMONS ISSUED as to Sean M Spicer. (kl) (Entered: 07/12/2017)

07/27/2017 07/27/2017 07/27/2017 08/08/2017 08/08/2017
08/08/2017 08/08/2017

AFFIDAVIT OF SERVICE. Donald J. Trump served on 7/14/2017,

10

answer due 8/4/2017. Service was made by Mail. Document filed by

Brandon Neely; Philip Cohen; Joseph Papp; Rebecca Buckwalter;

Nicholas Pappas; Holly Figueroa; Knight First Amendment Institute

at Columbia University; Eugene Gu. (Jaffer, Jameel) (Entered:

07/27/2017)

11 AFFIDAVIT OF SERVICE. Sean M Spicer served on 7/14/2017, answer due 8/4/2017. Service was made by Mail. Document filed by Brandon Neely; Philip Cohen; Joseph Papp; Rebecca Buckwalter; Nicholas Pappas; Holly Figueroa; Knight First Amendment Institute at Columbia University; Eugene Gu. (Jaffer, Jameel) (Entered: 07/27/2017)

12 AFFIDAVIT OF SERVICE. Daniel Scavino served on 7/14/2017, answer due 8/4/2017. Service was made by Mail. Document filed by Brandon Neely; Philip Cohen; Joseph Papp; Rebecca Buckwalter; Nicholas Pappas; Holly Figueroa; Knight First Amendment Institute at Columbia University; Eugene Gu. (Attachments: # 1 Supplement Delivery Confirmation)(Jaffer, Jameel) (Entered: 07/27/2017)

LETTER MOTION for Conference re: Motion for a Preliminary

13

Injunction addressed to Judge Naomi Reice Buchwald from Jameel

Jaffer dated 8/8/2017. Document filed by Rebecca Buckwalter, Philip

Cohen, Holly Figueroa, Eugene Gu, Knight First Amendment

Institute at Columbia University, Brandon Neely, Joseph Papp,

Nicholas Pappas.(Jaffer, Jameel) (Entered: 08/08/2017)

14 FILING ERROR - DEFICIENT DOCKET ENTRY - MOTION for Jessica Ring Amunson to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208-13992015. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Knight First Amendment Institute at Columbia University. (Attachments: # 1 Certificate of Good Standing (District of Columbia), # 2 Certificate of Good Standing (Maryland), # 3 Text of Proposed Order)(Amunson, Jessica) Modified on 8/8/2017 (jc). (Entered: 08/08/2017)

15 FILING ERROR - DEFICIENT DOCKET ENTRY - MOTION for Tassity S. Johnson to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208-13992063. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Knight First Amendment Institute at Columbia University. (Attachments: # 1 Certificate of Good Standing (Connecticut), # 2 Text of Proposed Order)(Johnson, Tassity) Modified on 8/8/2017 (jc). (Entered: 08/08/2017)

>>>NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE. Notice to RE-FILE Document

08/08/2017
08/08/2017 08/08/2017 08/08/2017 08/09/2017

No. 14 MOTION for Jessica Ring Amunson to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208-13992015. Motion and supporting papers to be reviewed by Clerk's Office staff... The filing is deficient for the following reason(s): missing Attorney Affidavit or Declaration - see Local Rule 1.3. Re-file the motion as a Motion to Appear Pro Hac Vice - attach the correct signed PDF - select the correct named filer/filers - attach valid Certificates of Good Standing issued within the past 30 days attach Attorney Affidavit or Declaration - attach Proposed Order. (jc) (Entered: 08/08/2017)
>>>NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE. Notice to RE-FILE Document No. 15 MOTION for Tassity S. Johnson to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208-13992063. Motion and supporting papers to be reviewed by Clerk's Office staff... The filing is deficient for the following reasons: 1) missing Attorney Affidavit or Declaration - see Local Rule 1.3; and 2) missing Certificate of Good Standing from Maryland Court of Appeals. Re-file the motion as a Motion to Appear Pro Hac Vice - attach the correct signed PDF - select the correct named filer/filers attach valid Certificates of Good Standing issued within the past 30 days - attach Attorney Affidavit or Declaration - attach Proposed Order. (jc) (Entered: 08/08/2017)
16 NOTICE OF APPEARANCE by Michael Hendry Baer on behalf of Daniel Scavino, Sean M Spicer, Donald J. Trump. (Baer, Michael) (Entered: 08/08/2017)
17 MOTION for Jessica Ring Amunson to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Knight First Amendment Institute at Columbia University. (Attachments: # 1 Declaration in Support of Motion for Admission Pro Hac Vice, # 2 Certificate of Good Standing (District of Columbia), # 3 Certificate of Good Standing (Maryland), # 4 Text of Proposed Order)(Amunson, Jessica) (Entered: 08/08/2017)
18 MOTION for Tassity S. Johnson to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Knight First Amendment Institute at Columbia University. (Attachments: # 1 Declaration in Support of Motion for Admission Pro Hac Vice, # 2 Certificate of Good Standing (Connecticut), # 3 Text of Proposed Order)(Johnson, Tassity) (Entered: 08/08/2017)
>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 18 MOTION for Tassity S. Johnson to

08/09/2017 08/09/2017 08/11/2017
08/14/2017 08/15/2017 08/31/2017
09/07/2017 09/08/2017

Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff., 17 MOTION for Jessica Ring Amunson to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (wb) (Entered: 08/09/2017)

19 ORDER FOR ADMISSION PRO HAC VICE granting 18 Motion for Tassity S. Johnson to Appear Pro Hac Vice. (As further set forth in this Order.) (Signed by Judge Naomi Reice Buchwald on 8/9/2017) (cf) (Entered: 08/10/2017)

20 ORDER FOR ADMISSION PRO HAC VICE: granting 17 Motion for Jessica Ring Amunson to Appear Pro Hac Vice. (Signed by Judge Naomi Reice Buchwald on 8/9/2017) (ap) (Entered: 08/10/2017)

LETTER RESPONSE to Motion addressed to Judge Naomi Reice 21
Buchwald from Michael Baer dated 08/11/2017 re: 13 LETTER MOTION for Conference re: Motion for a Preliminary Injunction addressed to Judge Naomi Reice Buchwald from Jameel Jaffer dated 8/8/2017. . Document filed by Daniel Scavino, Sean M Spicer, Donald J. Trump. (Baer, Michael) (Entered: 08/11/2017)

NOTICE OF APPEARANCE by Alexander Abraham Abdo on

22

behalf of Rebecca Buckwalter, Philip Cohen, Holly Figueroa, Eugene

Gu, Knight First Amendment Institute at Columbia University,

Brandon Neely, Joseph Papp, Nicholas Pappas. (Abdo, Alexander)

(Entered: 08/14/2017)

Minute Entry for proceedings held before Judge Naomi Reice Buchwald: Telephone Conference held on 8/15/2017. (ade) (Entered: 08/31/2017)

JOINT LETTER addressed to Judge Naomi Reice Buchwald from

23

Jameel Jaffer dated 08/31/2017 re: Knight First Amendment Institute,

et al. v. Trump, et al., Case No. 17-CV-5205 (NRB). Document filed

by Rebecca Buckwalter, Philip Cohen, Holly Figueroa, Eugene Gu,

Knight First Amendment Institute at Columbia University, Brandon

Neely, Joseph Papp, Nicholas Pappas.(Jaffer, Jameel) (Entered:

08/31/2017)

24 NOTICE OF APPEARANCE by Daniel Halainen on behalf of Daniel Scavino, Sean M Spicer, Donald J. Trump. (Halainen, Daniel) (Entered: 09/07/2017)

JOINT LETTER addressed to Judge Naomi Reice Buchwald from

25

Daniel Halainen dated 09/08/2017 re: Knight First Amendment

Institute, et al. v. Trump, et al., Case No. 17-cv-5205 (NRB).

09/11/2017
09/15/2017
09/25/2017 09/25/2017 09/26/2017
09/26/2017 09/28/2017

Document filed by Daniel Scavino, Sean M Spicer, Donald J. Trump.(Halainen, Daniel) (Entered: 09/08/2017)

26

MEMO ENDORSEMENT: on re: 25 Letter filed by Daniel

Scavino, Sean M Spicer, Donald J. Trump. ENDORSEMENT:

Application Granted., Daniel Scavino answer due 9/29/2017; Sean M

Spicer answer due 9/29/2017; Donald J. Trump answer due

9/29/2017. (Signed by Judge Naomi Reice Buchwald on 9/11/2017)

(ama) (Entered: 09/12/2017)

27 JOINT LETTER addressed to Judge Naomi Reice Buchwald from Jameel Jaffer dated September 15, 2017 re: an update on the status of negotiations as to a joint stipulation of facts. Document filed by Rebecca Buckwalter, Philip Cohen, Holly Figueroa, Eugene Gu, Knight First Amendment Institute at Columbia University, Brandon Neely, Joseph Papp, Nicholas Pappas.(Jaffer, Jameel) (Entered: 09/15/2017)

JOINT LETTER MOTION for Conference re: proposed summary

28

judgment briefing schedule addressed to Judge Naomi Reice

Buchwald from Michael H. Baer dated 09/25/2017. Document filed

by Daniel Scavino, Sean M Spicer, Donald J. Trump. (Attachments: #

1 Stipulation)(Baer, Michael) (Entered: 09/25/2017)

***DELETED DOCUMENT. Deleted document number [28-1] Stipulation Attachment pursuant to Order 32 filed on 10/3/2017. (mro) (Entered: 10/03/2017)

29

ORDER: terminating 28 Letter Motion for Conference. The

parties proposed schedule and page limits are acceptable to the Court.

Motion due by 10/13/2017. Response due by 11/13/2017. Cross

Motion due by 11/3/2017. Reply due by 11/22/2017. (Signed by

Judge Naomi Reice Buchwald on 9/26/2017) (ap) (Entered:

09/26/2017)

Set/Reset Deadlines: Cross Motions due by 11/3/2017. Motions due by 10/13/2017. Responses due by 11/13/2017. Replies due by 11/22/2017. (ap) (Entered: 09/26/2017)

JOINT LETTER MOTION for Leave to File Stipulation addressed to

30

Judge Naomi Reice Buchwald from Michael H. Baer dated

09/28/2017. Document filed by Daniel Scavino, Sean M Spicer,

10/02/2017

Donald J. Trump. (Attachments: # 1 (Entered: 09/28/2017)

Stipulation)(Baer, Michael)

31 NOTICE OF APPEARANCE by Katherine Amy Fallow on behalf of Rebecca Buckwalter, Philip Cohen, Holly Figueroa, Eugene Gu,

10/03/2017 10/13/2017 10/13/2017 10/13/2017 10/13/2017 10/13/2017 10/27/2017
10/27/2017
10/27/2017

Knight First Amendment Institute at Columbia University, Brandon Neely, Joseph Papp, Nicholas Pappas. (Fallow, Katherine) (Entered: 10/02/2017)

32 ORDER granting 30 Letter Motion for Leave to File Document. So ordered. (Signed by Judge Naomi Reice Buchwald on 10/3/2017) (mro) (Entered: 10/03/2017)

NOTICE of Filing Exhibits to Stipulation. Document filed by Daniel

33

Scavino, Sean M Spicer, Donald J. Trump. (Attachments: # 1 Exhibit

A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E,

# 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Baer,

Michael) (Entered: 10/13/2017)

MOTION for Summary Judgment . Document filed by Daniel

34

Scavino, Sean M Spicer, Donald J. Trump.(Baer, Michael) (Entered:

10/13/2017)

35

MEMORANDUM OF LAW in Support re: 34 MOTION for

Summary Judgment . . Document filed by Daniel Scavino, Sean M

Spicer, Donald J. Trump. (Baer, Michael) (Entered: 10/13/2017)

RULE 56.1 STATEMENT. Document filed by Daniel Scavino, Sean

36

M Spicer, Donald J. Trump. (Baer, Michael) (Entered: 10/13/2017)

LETTER addressed to Judge Naomi Reice Buchwald from Michael

37

H. Baer dated October 13, 2017 re: Motion for Summary Judgment.

Document filed by Daniel Scavino, Sean M Spicer, Donald J.

Trump.(Baer, Michael) (Entered: 10/13/2017)

38 MOTION for Joshua Geltzer to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208-14294232. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Amici First Amendment Scholars. (Attachments: # 1 Exhibit Certificate of Good Standing, # 2 Text of Proposed Order, # 3 Affidavit)(Geltzer, Joshua) (Entered: 10/27/2017)

>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 38 MOTION for Joshua Geltzer to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 020814294232. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (bcu) (Entered: 10/27/2017)

39 JOINT LETTER MOTION for Extension of Time to include a date for any amicus briefs to be filed, adjusting the remaining deadlines. addressed to Judge Naomi Reice Buchwald from Jameel Jaffer dated October 27, 2017. Document filed by Rebecca

10/30/2017 10/30/2017 10/30/2017
11/03/2017 11/03/2017
11/03/2017 11/03/2017 11/03/2017

Buckwalter, Philip Cohen, Holly Figueroa, Eugene Gu, Knight First Amendment Institute at Columbia University, Brandon Neely, Joseph Papp, Nicholas Pappas.(Jaffer, Jameel) (Entered: 10/27/2017)

40 ORDER granting 39 Letter Motion for Extension of Time. So Ordered. Motions due by 10/13/2017.. (Signed by Judge Naomi Reice Buchwald on 10/30/2017) (js) (Entered: 10/31/2017)

Set/Reset Deadlines: Cross Motions due by 11/3/2017. Responses due by 11/17/2017 Replies due by 12/1/2017. (js) (Entered: 10/31/2017)

41 ORDER FOR ADMISSION PRO HAC VICE: granting 38 Motion for Joshua Geltzer to Appear Pro Hac Vice. IT IS HEREBY ORDERED that Applicant is admitted to practice pro hac vice in the above captioned case in the United States District Court for the Southern District of New York. All attorneys appearing before this Court are subject to the Local Rules of this Court, including the Rules governing discipline of attorneys. (Signed by Judge Naomi Reice Buchwald on 10/30/2017) (js) (Entered: 10/31/2017)

42 CROSS MOTION for Summary Judgment . Document filed by Rebecca Buckwalter, Philip Cohen, Holly Figueroa, Eugene Gu, Knight First Amendment Institute at Columbia University, Brandon Neely, Joseph Papp, Nicholas Pappas.(Jaffer, Jameel) (Entered: 11/03/2017)

MEMORANDUM OF LAW in Support re: 42 CROSS MOTION for

43

Summary Judgment . Plaintiffs' Memorandum In Support of Cross-

Motion for Summary Judgment and In Opposition to Defendants'

Motion for Summary Judgment. Document filed by Rebecca

Buckwalter, Philip Cohen, Holly Figueroa, Eugene Gu, Knight First

Amendment Institute at Columbia University, Brandon Neely, Joseph

Papp, Nicholas Pappas. (Jaffer, Jameel) (Entered: 11/03/2017)

44 LETTER addressed to Judge Naomi Reice Buchwald from Jameel Jaffer dated November 3, 2017 re: Cross-Motion For Summary Judgment. Document filed by Rebecca Buckwalter, Philip Cohen, Holly Figueroa, Eugene Gu, Knight First Amendment Institute at Columbia University, Brandon Neely, Joseph Papp, Nicholas Pappas.(Jaffer, Jameel) (Entered: 11/03/2017)

45 RULE 56.1 STATEMENT. Document filed by Eugene Gu, Knight First Amendment Institute at Columbia University, Brandon Neely, Joseph Papp, Nicholas Pappas. (Jaffer, Jameel) (Entered: 11/03/2017)

46

RESPONSE re: 36 Rule 56.1 Statement . Document filed by

Rebecca Buckwalter, Philip Cohen, Holly Figueroa, Eugene Gu,

Knight First Amendment Institute at Columbia University, Brandon

11/06/2017 11/06/2017 11/06/2017 11/06/2017 11/06/2017 11/09/2017
11/09/2017
11/09/2017 11/17/2017
11/17/2017

Neely, Joseph Papp, Nicholas Pappas. (Jaffer, Jameel) (Entered: 11/03/2017)

BRIEF . Document filed by Amici First Amendment

47

Scholars.(Geltzer, Joshua) (Entered: 11/06/2017)

48 Amicus Curiae APPEARANCE entered by Mitchell L. Stoltz on behalf of Electronic Frontier Foundation.(Stoltz, Mitchell) (Entered: 11/06/2017)

BRIEF of Amicus Curiae. Document filed by Electronic Frontier

49

Foundation.(Stoltz, Mitchell) (Entered: 11/06/2017)

50 NOTICE OF APPEARANCE by Brian Timothy Burgess on behalf of Amici Curiae Federal Courts Scholars. (Burgess, Brian) (Entered: 11/06/2017)

BRIEF AMICI CURIAE. Document filed by Amici Curiae Federal

51

Courts Scholars.(Burgess, Brian) (Entered: 11/06/2017)

52 MOTION for Andrew Kim to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208-14347628. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by Amici Curiae Federal Courts Scholars. (Attachments: # 1 Affidavit, # 2 Exhibit 1, # 3 Text of Proposed Order)(Kim, Andrew) (Entered: 11/09/2017)

>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 52 MOTION for Andrew Kim to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 020814347628. Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (ma) (Entered: 11/09/2017)

53 ORDER ADMITTING COUNSEL PRO HAC VICE granting 52 Motion for Andrew Kim to Appear Pro Hac Vice. (Signed by Judge Naomi Reice Buchwald on 11/9/2017) (kgo) (Entered: 11/09/2017)

MEMORANDUM OF LAW in Opposition re: 42 CROSS MOTION

54

for Summary Judgment . Defendants' Memorandum of Law in

Opposition to Plaintiffs' Cross-Motion for Summary Judgment and

Reply Memorandum in Further Support of Defendants' Motion for

Summary Judgment. Document filed by Daniel Scavino, Sean M

Spicer, Donald J. Trump. (Baer, Michael) (Entered: 11/17/2017)

55 RESPONSE re: 45 Rule 56.1 Statement . Document filed by Daniel Scavino, Sean M Spicer, Donald J. Trump. (Baer, Michael) (Entered: 11/17/2017)

12/01/2017 56
12/21/2017 57
12/26/2017 58
01/08/2018 59
01/23/2018 60
01/26/2018 61
01/30/2018 62
02/26/2018 63

REPLY MEMORANDUM OF LAW in Support re: 42 CROSS MOTION for Summary Judgment . . Document filed by Rebecca Buckwalter, Philip Cohen, Holly Figueroa, Eugene Gu, Knight First Amendment Institute at Columbia University, Brandon Neely, Joseph Papp, Nicholas Pappas. (Jaffer, Jameel) (Entered: 12/01/2017)
LETTER addressed to Judge Naomi Reice Buchwald from Jameel Jaffer dated December 21, 2017 re: the government's concession concerning the President's tweets. Document filed by Rebecca Buckwalter, Philip Cohen, Holly Figueroa, Eugene Gu, Knight First Amendment Institute at Columbia University, Brandon Neely, Joseph Papp, Nicholas Pappas.(Jaffer, Jameel) (Entered: 12/21/2017)
LETTER addressed to Judge Naomi Reice Buchwald from Michael Baer dated December 26, 2017 re: Plaintiffs' December 21, 2017 Letter. Document filed by Daniel Scavino, Sean M Spicer, Donald J. Trump.(Baer, Michael) (Entered: 12/26/2017)
ORDER: Oral argument on the pending cross-motions for summary judgment shall be held on March 8, 2018, at 11:00 A.M., at the United States Courthouse, 500 Pearl Street, New York, New York, in Courtroom 21A. SO ORDERED., ( Oral Argument set for 3/8/2018 at 11:00 AM in Courtroom 21A, 500 Pearl Street, New York, NY 10007 before Judge Naomi Reice Buchwald.) (Signed by Judge Naomi Reice Buchwald on 1/08/2018) (ama) (Entered: 01/08/2018)
LETTER addressed to Judge Naomi Reice Buchwald from Jameel Jaffer dated January 23, 2018 re: Notice of Supplemental Authority. Document filed by Rebecca Buckwalter, Philip Cohen, Holly Figueroa, Eugene Gu, Knight First Amendment Institute at Columbia University, Brandon Neely, Joseph Papp, Nicholas Pappas. (Attachments: # 1 Exhibit A)(Jaffer, Jameel) (Entered: 01/23/2018)
LETTER addressed to Judge Naomi Reice Buchwald from Daniel Halainen dated January 26, 2018 re: Plaintiffs' January 23, 2018 Letter. Document filed by Daniel Scavino, Sean M Spicer, Donald J. Trump.(Halainen, Daniel) (Entered: 01/26/2018)
NOTICE OF CHANGE OF ADDRESS by Alexander Abraham Abdo on behalf of Rebecca Buckwalter, Philip Cohen, Holly Figueroa, Eugene Gu, Knight First Amendment Institute at Columbia University, Brandon Neely, Joseph Papp, Nicholas Pappas. New Address: Knight First Amendment Institute at Columbia University, 475 Riverside Drive, Suite 302, New York, NY, United States 10115, (646) 745-8500. (Abdo, Alexander) (Entered: 01/30/2018)
LETTER addressed to Judge Naomi Reice Buchwald from Jameel Jaffer dated February 26, 2018 re: Counsel for Plaintiffs division of time during the March 8, 2018 oral argument on the pending cross-

03/01/2018 64
03/06/2018 65
03/08/2018
03/13/2018 66

motions for summary judgment. Document filed by Rebecca Buckwalter, Philip Cohen, Holly Figueroa, Eugene Gu, Knight First Amendment Institute at Columbia University, Brandon Neely, Joseph Papp, Nicholas Pappas.(Jaffer, Jameel) (Entered: 02/26/2018)
MEMO ENDORSEMENT: on re: 63 Letter, filed by Joseph Papp, Brandon Neely, Knight First Amendment Institute at Columbia University, Eugene Gu, Philip Cohen, Nicholas Pappas, Holly Figueroa, Rebecca Buckwalter. ENDORSEMENT: Application granted. (Signed by Judge Naomi Reice Buchwald on 3/1/2018) (ap) (Entered: 03/01/2018)
LETTER addressed to Judge Naomi Reice Buchwald from Michael H. Baer dated March 6, 2018 re: Defendants' summary judgment briefing. Document filed by Daniel Scavino, Sean M Spicer, Donald J. Trump.(Baer, Michael) (Entered: 03/06/2018)
Minute Entry for proceedings held before Judge Naomi Reice Buchwald: Oral Argument held on 3/8/2018 re: 42 CROSS MOTION
for Summary Judgment 34 MOTION for Summary Judgment. (ade) (Entered: 03/08/2018)
LETTER addressed to Jameel Jaffer, Esq., Katherine Fallow, Esq., Michel Baer, Esq., from Hon. Naomi Reice Buchwald, United States District Judge dated 3/13/2018 re: At oral argument, the government stated that the blocking of Twitter users on the @POTUS and @WhiteHouse accounts would "likely would run afoul of the First Amendment but not because of public forum doctrine" and that "it is probably true that government cannot block individuals purely on the basis of viewpoint from a government account like the @POTUS account," Hr'g Tr. 26:19-20, 29:16-18. We understood the totality of the government's position to be that the First Amendment prohibits the blocking of users from those accounts. We neglected, however, to address the impact of this position on the question currently before the Court-whether such blocking may occur on the @RealDonaldTrump account. Accordingly, we request that the government submit, by March 28, a letter brief of no more than five pages clarifying its position. If the government continues to take the position that users may not be blocked from the @POTUS and @WhiteHouse accounts, it should explain all of the ways in which the First Amendment analysis differs for those two accounts on the one hand and the @RealDonaldTrump account on the other. If the government no longer takes the position that such blocking is unconstitutional, it should explain why such blocking is in fact permissible. The plaintiffs may submit a responsive letter within seven days of the government's letter. (ama) (Entered: 03/13/2018)

03/16/2018 67
03/23/2018 68
03/23/2018 69
03/28/2018 70
04/04/2018 71
05/23/2018 72

LETTER addressed to Judge Naomi Reice Buchwald from Jameel Jaffer dated March 16, 2018 re: the relevance of the D.C. Circuit's decision in Swan v. Clinton. Document filed by Rebecca Buckwalter, Philip Cohen, Holly Figueroa, Eugene Gu, Knight First Amendment Institute at Columbia University, Brandon Neely, Joseph Papp, Nicholas Pappas.(Jaffer, Jameel) (Entered: 03/16/2018)
TRANSCRIPT of Proceedings re: CONFERENCE held on 3/8/2018 before Judge Naomi Reice Buchwald. Court Reporter/Transcriber: Kelly Surina, (212) 805-0300. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 4/13/2018. Redacted Transcript Deadline set for 4/23/2018. Release of Transcript Restriction set for 6/21/2018.(McGuirk, Kelly) (Entered: 03/23/2018)
NOTICE OF FILING OF OFFICIAL TRANSCRIPT Notice is hereby given that an official transcript of a CONFERENCE proceeding held on 3/8/18 has been filed by the court reporter/transcriber in the above-captioned matter. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days...(McGuirk, Kelly) (Entered: 03/23/2018)
LETTER addressed to Judge Naomi Reice Buchwald from Michael H. Baer dated March 28, 2018 re: the Court's March 13, 2018 letter. Document filed by Daniel Scavino, Sean M Spicer, Donald J. Trump.(Baer, Michael) (Entered: 03/28/2018)
LETTER addressed to Judge Naomi Reice Buchwald from Jameel Jaffer dated April 4, 2018 re: the Court's March 13, 2018 letter and Defendants' March 28, 2018 response. Document filed by Rebecca Buckwalter, Philip Cohen, Holly Figueroa, Eugene Gu, Knight First Amendment Institute at Columbia University, Brandon Neely, Joseph Papp, Nicholas Pappas.(Jaffer, Jameel) (Entered: 04/04/2018)
MEMORANDUM AND ORDER: granting in part and denying in
part 34 Motion for Summary Judgment; granting in part and denying in part 42 Motion for Summary Judgment. We conclude that we have jurisdiction to entertain this dispute. Plaintiffs have established legal injuries that are traceable to the conduct of the President and Daniel Scavino and, despite defendants' suggestions to the contrary, their injuries are redressable by a favorable judicial declaration. Plaintiffs lack standing, however, to sue Sarah Huckabee

06/04/2018 73
06/04/2018 06/04/2018 06/05/2018 06/05/2018
06/26/2018

Sanders, who is dismissed as a defendant. Hope Hicks is also dismissed as a defendant, in light of her resignation as White House Communications Director. Turning to the merits of plaintiffs' First Amendment claim, we hold that the speech in which they seek to engage is protected by the First Amendment and that the President and Scavino exert governmental control over certain aspects of the @realDonaldTrump account, including the interactive space of the tweets sent from the account. That interactive space is susceptible to analysis under the Supreme Court's forum doctrines, and is properly characterized as a designated public forum. The viewpoint-based exclusion of the individual plaintiffs from that designated public forum is proscribed by the First Amendment and cannot be justified by the President's personal First Amendment interests. In sum, defendants' motion for summary judgment is granted in part and denied in part, and plaintiffs' cross-motion for summary judgment is granted in part and denied in part. The Clerk of the Court is directed to terminate the motions pending at docket entries 34 and 42. SO ORDERED. (Signed by Judge Naomi Reice Buchwald on 5/23/2018) (ama) (Entered: 05/23/2018)

NOTICE OF APPEAL from 72 Order on Motion for Summary Judgment,,,,,,,,,,,,,,,. Document filed by Daniel Scavino, Donald J. Trump. Form C and Form D are due within 14 days to the Court of Appeals, Second Circuit. (Baer, Michael) (Entered: 06/04/2018)
FILING ERROR - DEFICIENT DOCKET ENTRY - Appeal Fee
Due: for 73 Notice of Appeal. Appeal fee due by 6/18/2018. (tp) Modified on 6/5/2018 (tp). (Entered: 06/05/2018)

Appeal Fee Not Required for 73 Notice of Appeal. Appeal filed by U.S. Government. (tp) (Entered: 06/05/2018)
Transmission of Notice of Appeal and Certified Copy of Docket

Sheet to US Court of Appeals re: 73 (Entered: 06/05/2018)

Notice of Appeal. (tp)

Appeal Record Sent to USCA (Electronic File). Certified Indexed

record on Appeal Electronic Files for 73 Notice of Appeal filed by Daniel Scavino, Donald J. Trump were transmitted to the U.S. Court of Appeals. (tp) (Entered: 06/05/2018)
***DELETED DOCUMENT. Deleted document number 74 LETTER. The document was incorrectly filed in this case. (tro) (Entered: 07/02/2018)

09/13/2019 09/16/2019 04/01/2020 04/01/2020
04/01/2020

74 FILING ERROR - WRONG EVENT TYPE SELECTED FROM MENU - MOTION for Daniel Halainen to Withdraw as Attorney . Document filed by Daniel Scavino, Sean M Spicer, Donald J. Trump. (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Halainen, Daniel) Modified on 11/27/2019 (db). (Entered: 09/13/2019)

MEMO ENDORSEMENT on ORDER GRANTING MOTION TO

75

WITHDRAW 74 granting Motion to Withdraw as Attorney.

ENDORSEMENT: SO ORDERED. Attorney Daniel Halainen

terminated. (Signed by Judge Naomi Reice Buchwald on 9/16/2019)

(ama) (Entered: 09/17/2019)

76

OPINION of USCA (Certified Copy) as to 73 Notice of Appeal

filed by Daniel Scavino, Donald J. Trump USCA Case Number 18-

1691-cv. The judgment of the District Court is AFFIRMED.

Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit.

Certified: 4/1/2020. (tp) (Entered: 04/01/2020)

RECALLED AS PER ORDER OF USCA DOC. #81 77
- MANDATE of USCA (Certified Copy) as to 73 Notice of Appeal filed by Daniel Scavino, Donald J. Trump USCA Case Number 18-1691-cv. IT IS HEREBY ORDERED, ADJUDGED and DECREED that the judgment of the district court is AFFIRMED. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Mandate: 4/1/2020. (tp) Modified on 5/26/2021 (tp). (Entered: 04/01/2020)

Transmission of USCA Mandate/Order to the District Judge re: 77

04/09/2020 78
04/10/2020 79

USCA Mandate. (tp) (Entered: 04/01/2020)
LETTER addressed to Judge Naomi Reice Buchwald from Jameel Jaffer dated 04/09/2020 re: Attorneys fees. Document filed by Rebecca Buckwalter, Philip Cohen, Holly Figueroa, Eugene Gu, Knight First Amendment Institute at Columbia University, Brandon Neely, Joseph Papp, Nicholas Pappas..(Jaffer, Jameel) (Entered: 04/09/2020)
MEMO ENDORSEMENT on re: 78 Letter, filed by Joseph Papp, Brandon Neely, Knight First Amendment Institute at Columbia University, Eugene Gu, Philip Cohen, Nicholas Pappas, Holly Figueroa, Rebecca Buckwalter. ENDORSEMENT: Application granted. So Ordered. (Signed by Judge Naomi Reice Buchwald on 4/10/2020) (js) (Entered: 04/10/2020)

08/11/2020 05/26/2021
06/07/2021 06/07/2021

MEMO ENDORSEMENT on re: (13 in 1:20-cv-05958-PAE) Letter.

80

ENDORSEMENT: Judges Engelmayer and Buchwald and have

conferred and both agree that the instant case is not related to Knight

First Amendment Institute, et al. v. Trump, et al., No. 17 Civ. 5205

(NRB), under the District's related case rules. This case will therefore

remain assigned to Judge Engelmayer. (Signed by Judge Paul A.

Engelmayer on 8/11/2020) (jwh) (Entered: 08/11/2020)

81 ORDER of USCA (Certified Copy) as to 73 Notice of Appeal filed by Daniel Scavino, Donald J. Trump USCA Case Number 181691. By the Supreme Court's Judgement filed on May 7, 2021, the above-referenced case is reinstated restoring jurisdiction to this Court. The mandate in this case is hereby recalled and the case is reinstated. Catherine O'Hagan Wolfe, Clerk USCA for the Second Circuit. Issued As Order: 5/26/2021. (tp) (Entered: 05/26/2021)

82 NOTICE OF APPEARANCE by Cody Taylor Knapp on behalf of Daniel Scavino, Sean M Spicer, Donald J. Trump..(Knapp, Cody) (Entered: 06/07/2021)

83 MOTION for Leave to File Skeletal Filing of Motion for Attorney's Fees . Document filed by Rebecca Buckwalter, Philip Cohen, Holly Figueroa, Eugene Gu, Knight First Amendment Institute at Columbia University, Brandon Neely, Joseph Papp, Nicholas Pappas.

(Attachments: # 1 Motion for Attorney's Fees, # 2

06/07/2021 06/08/2021

Letter).(Jaffer, Jameel) (Entered: 06/07/2021)
84 MOTION to Stay . Document filed by Rebecca Buckwalter, Philip Cohen, Holly Figueroa, Eugene Gu, Knight First Amendment Institute at Columbia University, Brandon Neely, Joseph Papp, Nicholas Pappas..(Jaffer, Jameel) (Entered: 06/07/2021)
85 ORDER GRANTING PLAINTIFFS' UNOPPOSED MOTION TO PERMIT SKELETAL FILING OF MOTION FOR ATTORNEYS' FEES WITH SUPPLEMENT PERMITTED AT LATER DATE IF NO SETTLEMENT REACHED AND MOTION TO STAY BRIEFING granting 83 MOTION for Leave to File Skeletal Filing of Motion for Attorney's Fees; granting 84 Motion to Stay. IT IS HEREBY ORDERED that the Motion is GRANTED; and IT IS FURTHER ORDERED THAT Plaintiffs may file a skeletal motion for attorneys' fees and costs pursuant to the Equal Access to Justice Act on or before June 7, 2021, with leave to supplement the motion should a settlement not be reached on the fees issue; and IT IS FURTHER ORDERED THAT briefing on Plaintiffs' EAJA motion is stayed until 45 days after notification to the Court by Plaintiffs or the

06/09/2021

government that they are unable to settle this matter. In the event the parties reach a settlement agreement for attorneys' fees and costs, Plaintiffs are DIRECTED to withdraw their EAJA motion. SO ORDERED. (Signed by Judge Naomi Reice Buchwald on 6/8/2021) (mml) (Entered: 06/08/2021)
86 MOTION for Attorney Fees . Document filed by Rebecca Buckwalter, Philip Cohen, Holly Figueroa, Eugene Gu, Knight First Amendment Institute at Columbia University, Brandon Neely, Joseph Papp, Nicholas Pappas. (Attachments: # 1 Letter).(Jaffer, Jameel) (Entered: 06/09/2021)

PACER Service Center Transaction Receipt

06/22/2021 15:14:36

PACER Login:

CRClearinghouse Client Code:

Description:

Docket Report

Search Criteria:

Billable Pages: 14

Cost:

Eric Gripp
1:17-cv-05205NRB 1.40

 
 Case 1:17-cv-05205 Document 1 Filed 07/11/17 Page 1 of 25

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY; REBECCA BUCKWALTER; PHILIP COHEN; HOLLY FIGUEROA; EUGENE GU; BRANDON NEELY; JOSEPH PAPP; and NICHOLAS PAPPAS,

Civil Action No. __________

Plaintiffs,

v.

DONALD J. TRUMP, President of the United States; SEAN M. SPICER, White House Press Secretary; and DANIEL SCAVINO, White House Director of Social Media and Assistant to the President,

Defendants.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Introduction
1. President Trump’s Twitter account, @realDonaldTrump, has become an important source of news and information about the government, and an important public forum for speech by, to, and about the President. In an effort to suppress dissent in this forum, Defendants have excluded—“blocked”—Twitter users who have criticized the President or his policies. This practice is unconstitutional, and this suit seeks to end it.
2. As the Supreme Court recognized just a few weeks ago, social media platforms like Facebook and Twitter provide “perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard.” Packingham v. North Carolina, slip op. at 8, 582 U.S. ____ (2017). These platforms have been “revolution[ary],” not least because they have
1

Case 1:17-cv-05205 Document 1 Filed 07/11/17 Page 2 of 25
transformed civic engagement by allowing elected officials to communicate instantaneously and directly with their constituents. “Governors in all 50 States and almost every Member of Congress have set up [Twitter] accounts for this purpose,” id. at 5, allowing citizens to “petition their elected representatives and otherwise engage with them in a direct manner,” id. at 8. Twitter enables ordinary citizens to speak directly to public officials and to listen to and debate others about public issues, in much the same way they could if they were gathered on a sidewalk or in a public park, or at a city council meeting or town hall.
3. Because of the way the President and his aides use the @realDonaldTrump Twitter account, the account is a public forum under the First Amendment. Defendants have made the account accessible to all, taking advantage of Twitter’s interactive platform to directly engage the President’s 33 million followers. The President’s tweets routinely generate tens of thousands of comments in the vibrant discussion forums associated with each of the President’s tweets. Further, Defendants have promoted the President’s Twitter account as a key channel for official communication. Defendants use the account to make formal announcements, defend the President’s official actions, report on meetings with foreign leaders, and promote the administration’s positions on health care, immigration, foreign affairs, and other matters. The President’s advisors have stated that tweets from @realDonaldTrump are “official statements,” and they have been treated as such by politicians, world leaders, the National Archive and Records Administration, and federal courts.
4. Plaintiffs include individuals from across the country who have been blocked from the @realDonaldTrump account because of opinions they expressed in replies to the President’s tweets. Because of their criticism of the President, these Plaintiffs have been prevented or impeded from viewing the President’s tweets, from replying to the tweets, from
2

Case 1:17-cv-05205 Document 1 Filed 07/11/17 Page 3 of 25
viewing the discussions associated with the tweets, and from participating in those discussions. Defendants’ actions violate the First Amendment rights of these individual Plaintiffs as well as those of other Twitter users, like Plaintiff Knight First Amendment Institute, that follow the @realDonaldTrump account and are now deprived of their right to read the speech of the dissenters who have been blocked.
5. Plaintiffs respectfully ask that the Court declare that the viewpoint-based exclusion of the individual Plaintiffs violates the First Amendment, and order the Defendants to restore their access.
Jurisdiction and Venue 6. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 and 28 U.S.C. §§ 2201–2202. 7. Venue is proper in this Court under 28 U.S.C. § 1391(b)(2) and (e)(1). A substantial part of the events giving rise to this claim occurred in this District, and each Defendant is an officer of the United States sued in his official capacity.
Parties 8. The Knight First Amendment Institute at Columbia University (“Knight Institute”) is a section 501(c)(3) organization based in New York, NY that works to defend and strengthen the freedoms of speech and the press in the digital age through strategic litigation, research, and public education. The Knight Institute’s staff operates a Twitter account under the handle @knightcolumbia. 9. Plaintiff Rebecca Buckwalter, who resides in Washington, DC, is a writer and political consultant. She operates a verified Twitter account under the handle @rpbp.
3

Case 1:17-cv-05205 Document 1 Filed 07/11/17 Page 4 of 25
10. Plaintiff Philip Cohen, who resides in Takoma Park, MD, is a professor of sociology at the University of Maryland, College Park. He operates a verified Twitter account under the handle @familyunequal.
11. Plaintiff Holly Figueroa, who resides in Mercer Island, WA, is a political organizer and songwriter. She operates a verified Twitter account under the handle @AynRandPaulRyan.
12. Plaintiff Eugene Gu, who resides in Nashville, TN, is a resident in general surgery at Vanderbilt University Medical Center and the CEO of Ganogen Research Institute. He operates a Twitter account under the handle @eugenegu.
13. Plaintiff Brandon Neely, who resides in Tomball, TX, is a police officer. He operates a verified Twitter account under the handle @BrandonTXNeely.
14. Plaintiff Joseph Papp, who resides in Bethel Park, PA, is a former professional road cyclist and current anti-doping advocate and author. He operates a verified Twitter account under the handle @joepabike.
15. Plaintiff Nicholas Pappas, who resides in New York City, is a comic and writer. He operates a verified Twitter account under the handle @Pappiness.1
16. Defendant Donald Trump is President of the United States and is sued in his official capacity only. President Trump operates and/or oversees the operation of a verified Twitter account under the handle @realDonaldTrump. The President and/or his subordinates have blocked all of the Plaintiffs except the Knight First Amendment Institute from this account.
17. Defendant Sean Spicer is the White House Press Secretary and Acting Communications Director and is sued in his official capacity only. Mr. Spicer directs or
1 For ease of reference, Plaintiffs other than the Knight Institute are referred to herein as the “Individual Plaintiffs,” collectively.
4

Case 1:17-cv-05205 Document 1 Filed 07/11/17 Page 5 of 25
coordinates all White House communications. Upon information and belief, Mr. Spicer has the ability to block and unblock individuals from the @realDonaldTrump account.
18. Defendant Daniel Scavino is the White House Social Media Director and Assistant to the President and is sued in his official capacity only. Mr. Scavino posts messages on behalf of President Trump to @realDonaldTrump and other social media accounts, including @POTUS and @WhiteHouse. Upon information and belief, Mr. Scavino has the ability to block and unblock individuals from the @realDonaldTrump account.
Factual Allegations A. Twitter 19. Twitter is a social media platform with more than 300 million active users worldwide, including some 70 million in the United States. The platform allows users to publish short messages, to republish or respond to others’ messages, and to interact with other Twitter users in relation to those messages. Speech posted on Twitter ranges from personal insult to poetry, but particularly relevant here is that a significant amount of speech posted on the platform is speech by, to, or about the government. 20. Users. A Twitter “user” is an individual who has created an account on the platform. A user can post “tweets,” up to 140 characters in length, to a webpage on Twitter that is attached to the user’s account. Tweets can include photographs, videos, and links. Some Twitter users do not tweet—i.e., publish messages—at all. Others publish hundreds of messages a day. 21. Timelines. A Twitter user’s webpage displays all tweets generated by the user, with the most recent tweets appearing at the top of the page. This display is known as a user’s “timeline.” When a user generates a tweet, the timeline updates immediately to include that tweet. Anyone who can view a user’s public Twitter webpage can see the user’s timeline. Below is a screenshot of part of the timeline associated with the @realDonaldTrump account:
5

Case 1:17-cv-05205 Document 1 Filed 07/11/17 Page 6 of 25
22. A Twitter user must have an account name, which is an @ symbol followed by a unique identifier (e.g., @realDonaldTrump), and a descriptive name (e.g., Donald J. Trump). The account name is called the user’s “handle.” Alongside the handle, a user’s webpage will display the date the user joined Twitter and a button that invites others to “Tweet to” the user. (This button is visible only to other Twitter users.) A user’s Twitter webpage may also include a short
6

Case 1:17-cv-05205 Document 1 Filed 07/11/17 Page 7 of 25 biographical description; a profile picture, such as a headshot; a “header” image, which appears as a banner at the top of the webpage; the user’s location; a button labeled “Message,” which allows two users to correspond privately; and a small sample of photographs and videos posted to the user’s timeline, which link to a full gallery. Thus, part of the webpage for @realDonaldTrump recently looked like this:
23. Tweets. An individual “tweet” comprises the tweeted content (i.e., the message, including any embedded photograph, video, or link), the user’s account name (with a link to the user’s Twitter webpage), the user’s profile picture, the date and time the tweet was generated, and the number of times the tweet has been replied to ( ), retweeted by ( ), or liked by ( ) other users. Thus, a recent tweet from @realDonaldTrump looks like this:
7

Case 1:17-cv-05205 Document 1 Filed 07/11/17 Page 8 of 25
24. By default, Twitter webpages and their associated timelines are visible to everyone with internet access, including those who are not Twitter users. However, although non-users can view users’ Twitter webpages, they cannot interact with users on the Twitter platform.
25. Following. Twitter users can subscribe to other users’ messages by “following” those users’ accounts. Users see all tweets posted or retweeted by accounts they have followed. This display is labeled “Home” on Twitter’s site, but it is often referred to as a user’s “feed.”
26. Verification. Twitter permits users to establish accounts under their real names or pseudonyms. Users who want to establish that they are who they claim to be can ask Twitter to “verify” their accounts. When an account is verified, a blue badge with a checkmark appears next to the user’s name on his or her Twitter page and on each tweet the user posts.
27. Retweeting. Beyond publishing tweets to their followers, Twitter users can engage with one another in a variety of ways. For example, they can “retweet”—i.e., republish—the tweets of other users, either by publishing them directly to their own followers or by “quoting” them in their own tweets. When a user retweets a tweet, it appears on the user’s timeline in the
8

Case 1:17-cv-05205 Document 1 Filed 07/11/17 Page 9 of 25
same form as it did on the original user’s timeline, but with a notation indicating that the post was retweeted. This is a recent retweet by @realDonaldTrump:
28. Replying. A Twitter user can also reply to other users’ tweets. Like any other tweet, a reply can be up to 140 characters in length and can include photographs, videos, and links. When a user replies to a tweet, the reply appears on the user’s timeline under a tab labeled “Tweets & replies.” The reply will also appear on the original user’s feed in a “comment thread” under the tweet that prompted the reply. Other users’ replies to the same tweet will appear in the same comment thread. Reply tweets by verified users, reply tweets by users with a large number of followers, and tweets that are “favorited” and retweeted by large numbers of users generally appear higher in the comment threads.
29. Comment threads. A Twitter user can also reply to other replies. A user whose tweet generates replies will see the replies below his or her original tweet, with any replies-toreplies nested below the replies to which they respond. The collection of replies and replies-toreplies is sometimes referred to as a “comment thread.” Twitter is called a “social” media
9

Case 1:17-cv-05205 Document 1 Filed 07/11/17 Page 10 of 25 platform in large part because of comment threads, which reflect multiple overlapping conversations among and across groups of users. Below is a recent @realDonaldTrump tweet that prompted tens of thousands of comments:
10

Case 1:17-cv-05205 Document 1 Filed 07/11/17 Page 11 of 25
30. Favoriting. A Twitter user can also “favorite” or “like” another user’s tweet by clicking on the heart icon that appears under the tweet. By “liking” a tweet, a user may mean to convey approval or to acknowledge of having seen the tweet.
31. Mentioning. A Twitter user can also “mention” another user by including the other user’s Twitter handle in a tweet. A Twitter user mentioned by another user will receive a “notification” that he or she has been mentioned in another user’s tweet.
32. Tweets, retweets, replies, likes, and mentions are controlled by the user who generates them. No other Twitter user can alter the content of any retweet or reply, either before or after it is posted. Twitter users cannot prescreen tweets, replies, likes, or mentions that reference their tweets or accounts.
33. Protected tweets. Because all Twitter webpages are by default visible to all Twitter users and to anyone with access to the internet, users who wish to limit who can see and interact with their tweets must affirmatively “protect” their tweets. Other users who wish to view “protected” tweets must request access from the user who has protected her tweets. “Protected” tweets do not appear in third-party search engines, and they are searchable only on Twitter, and only by the user and her approved followers.
34. Blocking. A user whose account is public (i.e. not protected) but who wants to make his or her tweets invisible to another user can do so by “blocking” that user. (Twitter provides users with the capability to block other users, but, importantly, it is the users themselves who decide whether to make use of this capability.) A user who blocks another user prevents the blocked user from interacting with the first user’s account on the Twitter platform. A blocked user cannot see or reply to the blocking user’s tweets, view the blocking user’s list of followers or followed accounts, or use the Twitter platform to search for the blocking user’s tweets. The
11

Case 1:17-cv-05205 Document 1 Filed 07/11/17 Page 12 of 25 blocking user will not be notified if the blocked user mentions her; nor will the blocking user see any tweets posted by the blocked user.
35. If the blocked user attempts to follow the blocking user, or to access the Twitter webpage from which the user is blocked, the user will see a message indicating that the other user has blocked him or her from following the account and viewing the tweets associated with the account. This is an example of a notification from Twitter that a user has been blocked:
B. The @realDonaldTrump account 36. Donald Trump established @realDonaldTrump in May 2009 and used the account for several years to engage with his followers about politics, celebrities, golf, and his business interests, among other topics. After his inauguration in January 2017, he began to use the account as an instrument of his presidency, and today he and his aides use it almost exclusively as a channel for communicating with the public about his administration. Because of the way he uses
12

Case 1:17-cv-05205 Document 1 Filed 07/11/17 Page 13 of 25
the account, President Trump’s tweets have become an important source of news and information about the government, and the comment threads associated with the tweets have become important forums for speech by, to, and about the President.
37. President Trump presents the account to the public as one that he operates in his official capacity rather than his personal one. The Twitter page associated with the account is registered to Donald J. Trump, “45th President of the United States of America, Washington, D.C.” The account bears a blue badge indicating that it has been verified by Twitter. On July 7, 2017, the header photograph showed an American flag. Over the past few weeks, the header photograph has shown images of President Trump performing his official duties, such as making a speech to the Department of Energy, flanked by Vice President Mike Pence and Secretary of Energy Rick Perry.
38. The @realDonaldTrump account is accessible to the public at large without regard to political affiliation or any other limiting criteria. President Trump has not “protected” his tweets, and anyone who wants to follow the account can do so. He has not issued any rule or statement purporting to limit (by form or subject matter) the speech of those who reply to his tweets. The account has 33 million followers—14 million more than @POTUS and 19 million more than @WhiteHouse. The only users who cannot follow @realDonaldTrump are those whom the President and/or his aides have blocked.
39. President Trump and his aides have made clear that they consider statements published on @realDonaldTrump to be official statements of the President. On July 2, 2017, President Trump tweeted from @realDonaldTrump, “My use of social media is not Presidential – it’s MODERN DAY PRESIDENTIAL.” A month earlier, White House Press Secretary Sean Spicer stated at a press conference that tweets from President Trump should be understood as
13

Case 1:17-cv-05205 Document 1 Filed 07/11/17 Page 14 of 25
“official statements by the President of the United States.” On June 23, 2017, the White House responded to a request from the House Permanent Select Committee on Intelligence for official White House records by referring the Committee to the President’s “statement” made on Twitter on June 22, 2017. The White House social media director, Dan Scavino, promotes @realDonaldTrump, @POTUS, and @WhiteHouse equally as channels through which “President Donald J. Trump . . . communicat[es] directly with you, the American people!” The @WhiteHouse account’s description directs Twitter users to “Follow for the latest from @POTUS @realDonaldTrump and his Administration.” Further, tweets from @POTUS are frequently retweeted by @realDonaldTrump, and tweets from @realDonaldTrump are frequently retweeted by @POTUS.
40. With the assistance of his aides, President Trump uses @realDonaldTrump, often multiple times a day, to announce, describe, and defend his policies; to promote his Administration’s legislative agenda; to announce official decisions; to engage with foreign political leaders; to publicize state visits; and to challenge media organizations whose coverage of his Administration he believes to be unfair. President Trump sometimes uses the account to announce official decisions and policies before those decisions and policies are announced through other official channels. For example, the President used @realDonaldTrump to announce on June 7, 2017, for the first time, that he intended to nominate Christopher Wray for the position of FBI director. Likewise, on June 22, 2017, he used @realDonaldTrump to acknowledge for the first time that he did not possess tapes of conversations with former FBI Director James Comey.
41. White House aides assist President Trump in operating the @realDonaldTrump account, including by drafting and posting tweets to the account. According to news reports,
14

Case 1:17-cv-05205 Document 1 Filed 07/11/17 Page 15 of 25
President Trump also sometimes dictates tweets to White House Director of Social Media Dan Scavino, who then posts them on Twitter.
42. Federal agencies and the federal courts treat President Trump’s statements on @realDonaldTrump as official statements. The National Archives and Records Administration has advised the White House that the President’s tweets from @realDonaldTrump, like those from @POTUS, are official records that must be preserved under the Presidential Records Act. The Ninth Circuit cited one of the President’s tweets in striking down Executive Order 13,780, the order that temporarily suspends nationals of certain countries from entering the United States. Hawaii v. Trump, 859 F.3d 741, 773 n.14 (9th Cir. 2017), cert. granted sub nom. Trump v. Int’l Refugee Assistance Project, No. 16-1436, 2017 WL 2722580 (U.S. June 26, 2017). In citing the tweet, the Ninth Circuit observed that the White House Press Secretary had indicated that the President’s tweets should be treated as official statements.
43. Foreign leaders similarly treat President Trump’s statements from @realDonaldTrump as reflective of his views and decisions as President. President Trump’s tweets about London Mayor Sadiq Khan and the June 4, 2017 London Bridge terrorist attack ultimately resulted in the indefinite deferral of President Trump’s planned state visit to Great Britain. A series of tweets from @realDonaldTrump endorsing the suspension of economic relations with Qatar, a longstanding ally of the United States, prompted a public response from the Qatari Foreign Minister. A series of tweets from @realDonaldTrump insisting that Mexico should pay for a wall along the U.S.–Mexico border caused the Mexican President Enrique Peña Nieto to cancel a previously planned meeting with President Trump shortly after his inauguration.
15

Case 1:17-cv-05205 Document 1 Filed 07/11/17 Page 16 of 25
44. Because of the way in which President Trump uses @realDonaldTrump, the account has become an important channel for news about the presidency and the U.S. government. Those who are blocked from the account are impeded in their ability to learn information that is shared only through that account.
45. The comment threads associated with tweets from @realDonaldTrump are important forums for discussion and debate about the President, the President’s decisions, and government policy. Typically, tweets from @realDonaldTrump generate thousands of replies, some of which generate hundreds or thousands of replies in turn. The @realDonaldTrump account is a kind of digital town hall in which the President and his aides use the tweet function to communicate news and information to the public, and members of the public use the reply function to respond to the President and his aides and exchange views with one another..
C. Defendants’ blocking of Plaintiffs from the @realDonaldTrump account The Individual Plaintiffs
46. The Individual Plaintiffs are Twitter users who have been blocked by one or more of the Defendants from the @realDonaldTrump account because they criticized the President or his policies. Defendants’ blocking of the Individual Plaintiffs from the @realDonaldTrump account prevents or impedes the Individual Plaintiffs from viewing the President’s tweets; from replying to these tweets; from viewing the comment threads associated with these tweets; and from participating in the comment threads.
47. Defendants’ viewpoint-based blocking of the Individual Plaintiffs from the @realDonaldTrump account infringes the Individual Plaintiffs’ First Amendment rights. It imposes an unconstitutional restriction on their participation in a designated public forum. It imposes an unconstitutional restriction on their right to access statements that Defendants are
16

Case 1:17-cv-05205 Document 1 Filed 07/11/17 Page 17 of 25
otherwise making available to the public at large. It also imposes an unconstitutional restriction on their right to petition the government for redress of grievances.
Rebecca Buckwalter 48. Plaintiff Rebecca Buckwalter is a writer and legal analyst. Her writing on politics and law has been published by, among other outlets, the Democracy Journal, CNN, NPR, The Atlantic, and Politico. Ms. Buckwalter operates a verified Twitter account, @rpbp, which has approximately 5,247 followers. 49. Ms. Buckwalter began following @realDonaldTrump after he became President. Before she was blocked, she monitored President Trump’s tweets closely. She often responded to tweets from @realDonaldTrump, and she was an active participant in the comment threads. She would post links to her own writing when she believed pieces she had written were relevant to the topics being discussed. Some of her tweets directed at the @realDonaldTrump account received thousands of likes and retweets. 50. One or more of the Defendants blocked Ms. Buckwalter from the @realDonaldTrump account on June 6, 2017. At 8:15 that morning, President Trump tweeted, “Sorry folks, but if I would have relied on the Fake News of CNN, NBC, ABC, CBS washpost or nytimes, I would have had ZERO chance winning WH.” Ms. Buckwalter replied, “To be fair you didn’t win the WH: Russia won it for you.” Ms. Buckwalter’s reply tweet received 9,033 likes and 3,371 retweets. Soon thereafter, Ms. Buckwalter discovered she had been blocked from the @realDonaldTrump account. 51. Defendants’ blocking of Ms. Buckwalter from the @realDonaldTrump account prevents or impedes her from viewing the President’s tweets; from replying to these tweets; from viewing the comment threads associated with these tweets; and from participating in the comment threads.
17

Case 1:17-cv-05205 Document 1 Filed 07/11/17 Page 18 of 25
Philip Cohen 52. Plaintiff Philip Cohen is a Sociology Professor at the University of Maryland, College Park. He holds a PhD in Sociology from the University of Maryland and was formerly a Professor of Sociology at the University of North Carolina, Chapel Hill. He published a book in 2014 entitled The Family: Diversity, Inequality and Social Change. Professor Cohen operates a verified Twitter account, @familyunequal, which has approximately 9,900 followers. 53. Professor Cohen began following @realDonaldTrump when Donald Trump announced his campaign for the presidency. Before he was blocked, Professor Cohen often responded to tweets from @realDonaldTrump, and he was an active participant in the comment threads. 54. One or more of the Defendants blocked Professor Cohen from the @realDonaldTrump account on June 6, 2017. At 8:44 that evening, President Trump tweeted, “#ICYMI [In Case You Missed It] Announcement of Air Traffic Control Initiative… Watch” with a link to an announcement of his Air Traffic Control Initiative. Professor Cohen replied with a tweet showing a photograph of the President with these words superimposed on the photograph: “Corrupt Incompetent Authoritarian. And then there are the policies. Resist.” Professor Cohen’s tweet received 307 likes and 35 retweets. About 15 minutes later, Professor Cohen discovered he had been blocked from the @realDonaldTrump account. 55. Defendants’ blocking of Professor Cohen from the @realDonaldTrump account prevents or impedes him from viewing the President’s tweets; from replying to these tweets; from viewing the comment threads associated with these tweets; and from participating in the comment threads.
18

Case 1:17-cv-05205 Document 1 Filed 07/11/17 Page 19 of 25
Holly Figueroa 56. Plaintiff Holly Figueroa is a national political organizer and songwriter who lives in Seattle, Washington. Ms. Figueroa operates a verified Twitter account, @AynRandPaulRyan, which has approximately 87,600 followers. 57. Ms. Figueroa began following @realDonaldTrump soon after Donald Trump became President. She programmed her phone to alert her whenever the President tweets, and frequently responded to many of his tweets with critical remarks, caustic retorts, funny photos, and memes. Her replies to @realDonaldTrump have earned her a significant following on Twitter. Many of her tweets in reply to @realDonaldTrump receive thousands of likes and retweets, and they often appear at or near the top of the @realDonaldTrump comment threads. 58. One or more of the Defendants blocked Ms. Figueroa from the @realDonaldTrump account on May 28, 2017. That morning, addressing the previous week’s terrorist attack in Manchester, England, President Trump tweeted: “British Prime Minister May was very angry that the info the U.K. gave to the U.S. about Manchester was leaked. Gave me full details!” Ms. Figueroa replied to the President in a series of tweets, including one that contained an image of the Pope looking incredulously at President Trump, along with the statement “This is pretty much how the whole world sees you. #AMJoy #SundayMorning.” Her reply received 15,000 likes and 5,300 retweets. Later that evening, she discovered that she had been blocked. 59. Defendants’ blocking of Ms. Figueroa from the @realDonaldTrump account prevents or impedes her from viewing the President’s tweets; from replying to these tweets; from viewing the comment threads associated with these tweets; and from participating in the comment threads. Ms. Figueroa uses a third-party application to read and respond to the
19

Case 1:17-cv-05205 Document 1 Filed 07/11/17 Page 20 of 25
President’s tweets, but using the application is burdensome and the application is only partly effective.
Eugene Gu 60. Plaintiff Eugene Gu is a resident in general surgery at Vanderbilt University Medical Center and the CEO of Ganogen Research Institute. Dr. Gu operates a Twitter account, @eugenegu, which has approximately 9,300 followers. 61. Dr. Gu began following @realDonaldTrump in March 2017. He occasionally replied to tweets from @realDonaldTrump with critical and sometimes satirical remarks. Some of Dr. Gu’s replies to @realDonaldTrump received thousands of likes and appeared on Twitter Moments, which are Twitter-created accounts of current events that incorporate popular tweets. 62. One or more of the Defendants blocked Dr. Gu from the @realDonaldTrump account on June 18, 2017. At 4:02 AM that morning, President Trump tweeted: “The new Rasmussen Poll, one of the most accurate in the 2016 Election, just out with a Trump 50% Approval Rating. That’s higher than O’s #’s!” At 4:12 AM, Dr. Gu replied: “Covfefe: The same guy who doesn’t proofread his Twitter handles the nuclear button.” Dr. Gu’s tweet received 2,900 likes and 239 retweets. Dr. Gu discovered he had been blocked from the @realDonaldTrump account approximately two hours later. 63. Defendants’ blocking of Dr. Gu from the @realDonaldTrump account prevents or impedes him from viewing the President’s tweets; from replying to these tweets; from viewing the comment threads associated with these tweets; and from participating in the comment threads.
20

Case 1:17-cv-05205 Document 1 Filed 07/11/17 Page 21 of 25
Brandon Neely 64. Plaintiff Brandon Neely is a police officer in Houston, Texas. He is a veteran who served in Iraq in 2003 and worked as a guard at Guantanamo Bay in 2002. He operates a verified Twitter account, @BrandonTXNeely, which has approximately 6,700 followers. 65. Mr. Neely began following the @realDonaldTrump account soon after Donald Trump announced his campaign for the presidency. After the election, Mr. Neely became a frequent critic of the President on Twitter, and some of his replies to @realDonaldTrump generated hundreds of likes and retweets. Some of Mr. Neely’s tweets were cited on websites such as The New Civil Rights Movement and The Daily Caller. Mr. Neely’s tweets often appeared near the top of the comment threads associated with tweets from @realDonaldTrump. 66. One or more of the Defendants blocked Mr. Neely from the @realDonaldTrump account on June 12, 2017. That morning, President Trump tweeted: “Congratulations! First new Coal Mine of Trump Era Opens in Pennsylvania.” He included a link to a Fox News article about the opening of the mine. Mr. Neely replied: “Congrats and now black lung won’t be covered under #TrumpCare.” The tweet received 3,334 likes and 341 retweets. Mr. Neely discovered that he had been blocked from the @realDonaldTrump account the following day. 67. Defendants’ blocking of Mr. Neely from the @realDonaldTrump account prevents or impedes him from viewing the President’s tweets; from replying to these tweets; from viewing the comment threads associated with these tweets; and from participating in the comment threads. Mr. Neely has used a third-party application to read and respond to the President’s tweets, but using the application is burdensome and the application is only partly effective.
21

Case 1:17-cv-05205 Document 1 Filed 07/11/17 Page 22 of 25
Joseph Papp 68. Plaintiff Joseph Papp is a former professional road cyclist and current anti-doping advocate, author, and speaker. He operates a verified Twitter account, @joepabike, which has approximately 11,600 followers. 69. Mr. Papp monitors the @realDonaldTrump account closely and is an active participant in the comment threads. His replies to @realDonaldTrump have been featured or quoted in numerous media articles describing citizen response to President Trump, and some of them have been liked or retweeted thousands of times. 70. One or more of the Defendants blocked Mr. Papp from the @realDonaldTrump account on or about June 3, 2017. At 12:35 on June 3, President Trump tweeted a video of his weekly presidential address with the hashtag “#WeeklyAddress.” At 12:36 and 12:39, Mr. Papp replied to the President with a pair of linked tweets stating, “Greetings from Pittsburgh, Sir.,” and “Why didn’t you attend your #PittsburghNotParis rally in DC, Sir?” The second tweet received 335 likes and 34 retweets. On June 4, Mr. Papp discovered he had been blocked. 71. Defendants’ blocking of Mr. Papp from the @realDonaldTrump account prevents or impedes him from viewing the President’s tweets; from replying to these tweets; from viewing the comment threads associated with these tweets; and from participating in the comment threads.
Nick Pappas 72. Plaintiff Nick Pappas is a comic and writer. He operates a verified Twitter account, @Pappiness, which has approximately 37,400 followers. 73. Mr. Pappas has followed the @realDonaldTrump account since 2016. Before he was blocked, Mr. Pappas’ replies to @realDonaldTrump often received thousands of likes and retweets.
22

Case 1:17-cv-05205 Document 1 Filed 07/11/17 Page 23 of 25
74. One or more of the Defendants blocked Mr. Pappas from the @realDonaldTrump account on June 5, 2017. That morning, President Trump tweeted: “The Justice Dept. should ask for an expedited hearing of the watered down Travel Ban before the Supreme Court - & seek much tougher version!” and “In any event we are EXTREME VETTING people coming into the U.S. in order to keep our country safe. The courts are slow and political!” Mr. Pappas replied: “Trump is right. The government should protect the people. That’s why the courts are protecting us from him.” Mr. Pappas’ tweet received 395 retweets and 1,181 likes. Mr. Pappas discovered that he had been blocked from the @realDonaldTrump account later that day.
75. Defendants’ blocking of Mr. Pappas from the @realDonaldTrump account prevents or impedes him from viewing the President’s tweets; from replying to these tweets; from viewing the comment threads associated with these tweets; and from participating in the comment threads.
Knight First Amendment Institute at Columbia University 76. Plaintiff Knight First Amendment Institute at Columbia University is a 501(c)(3) organization that works to defend and strengthen the freedoms of speech and the press in the digital age through strategic litigation, research, and public education. Staff at the Knight First Amendment Institute operate a Twitter account under the handle @knightcolumbia, and this account follows @realDonaldTrump. 77. Unlike the Individual Plaintiffs, the Knight Institute has not been blocked from the @realDonaldTrump account. It can access the President’s tweets on the same terms as other users, it can reply to the President directly, and it can participate fully in comment threads. The viewpoint-based exclusion of the Individual Plaintiffs from this forum, however, prevents the Knight Institute and other forum participants from hearing the speech that the Individual Plaintiffs would have engaged in had they not been blocked. Defendants’ viewpoint-based
23

Case 1:17-cv-05205 Document 1 Filed 07/11/17 Page 24 of 25
blocking of the Individual Plaintiffs violates the Knight Institute’s First Amendment rights by distorting the expressive forum in which the Knight Institute and other non-blocked users participate.
Cause of Action Violation of the First Amendment of the U.S. Constitution
(Declaratory and Injunctive Relief) 78. Plaintiffs repeat the allegations set forth above as if fully set forth herein. 79. Defendants’ blocking of the Individual Plaintiffs from the @realDonaldTrump account violates the First Amendment because it imposes a viewpoint-based restriction on the Individual Plaintiffs’ participation in a public forum. 80. Defendants’ blocking of the Individual Plaintiffs from the @realDonaldTrump account violates the First Amendment because it imposes a viewpoint-based restriction on the Individual Plaintiffs’ access to official statements the President otherwise makes available to the general public. 81. Defendants’ blocking of the Individual Plaintiffs from the @realDonaldTrump account violates the First Amendment because it imposes a viewpoint-based restriction on the Individual Plaintiffs’ ability to petition the government for redress of grievances. 82. Defendants’ blocking of the Individual Plaintiffs from the @realDonaldTrump account violates the First Amendment because it imposes a viewpoint-based restriction on the Knight Institute’s right to hear.
Prayer For Relief WHEREFORE, Plaintiffs request that this Court:
24

Case 1:17-cv-05205 Document 1 Filed 07/11/17 Page 25 of 25

1. Declare Defendants’ viewpoint-based blocking of the Individual Plaintiffs from

the @realDonaldTrump account to be unconstitutional;

2. Enter an injunction requiring Defendants to unblock Individual Plaintiffs from the

@realDonaldTrump account, and prohibiting Defendants from blocking the Individual Plaintiffs

or others from the account on the basis of viewpoint;

3. Award Plaintiffs their costs, including reasonable attorneys’ fees, pursuant to 28

U.S.C. § 2412; and

4. Grant any additional relief as may be just and proper.

Dated: July 11, 2017

Respectfully submitted,

/s/ Jameel Jaffer Jameel Jaffer (JJ-4653) Katherine Fallow (application for admission
forthcoming) Alex Abdo (AA-0527) Knight First Amendment Institute
at Columbia University 314 Low Library 535 West 116th Street New York, NY 10027 (212) 854-9600 jameel.jaffer@knightcolumbia.org katie.fallow@knightcolumbia.org alex.abdo@knightcolumbia.org

Jessica Ring Amunson (pro hac vice motion forthcoming)
Tassity S. Johnson (pro hac vice motion forthcoming)
Jenner & Block LLP 1099 New York Avenue, NW, Suite 900 Washington, DC 20001 (202) 639-6000 jamunson@jenner.com tjohnson@jenner.com

25

 
 Case 1:17-cv-05205-NRB Document 21 Filed 08/11/17 Page 1 of 3
U.S. Department of Justice
Civil Division Federal Programs Branch 20 Massachusetts Ave., NW Washington, D.C. 20530

Michael H. Baer Trial Attorney

Tel: (202) 305-8573 Fax: (202) 616-8460 Michael.H.Baer@usdoj.gov

Via ECF and by Fax

August 11, 2017

The Hon. Naomi Reice Buchwald United States District Court Southern District of New York 500 Pearl Street New York, NY 10007

Re: Knight First Amendment Institute at Columbia University, et al. v. Trump, et al., No. 17-cv-5205 (NRB)

Dear Judge Buchwald:

Defendants in the above-captioned matter submit this letter in response to Plaintiffs’ August 8, 2017 request for a pre-motion conference, at which Plaintiffs would seek to file a motion for preliminary injunction. See Letter Mot., ECF No. 13. Plaintiffs seek preliminary relief for the unprecedented purpose of policing the manner in which President Donald J. Trump manages his Twitter account, @realDonaldTrump. The Court should not permit Plaintiffs to seek, much less obtain, such relief.1

First, Plaintiffs cannot demonstrate a substantial likelihood of success on the merits of their First Amendment claim—the only claim at issue in this case. To obtain a preliminary injunction, Plaintiffs must make the heightened showing of a “‘substantial’ likelihood of success on the merits” because they “seek[] a preliminary injunction that [would] alter the status quo.” N.Y. Progress & Prot. PAC v. Walsh, 733 F.3d 483, 486 (2d Cir. 2013) (citation omitted). Specifically, they seek to change the fact that they are “blocked” from the @realDonaldTrump account for “the pendency of this litigation.” Letter Mot. at 2-3; Compl. ¶ 46.

It would send the First Amendment deep into uncharted waters to hold that a president’s choices about whom to follow, and whom to block, on Twitter—a privately run website that, as a central feature of its social-media platform, enables all users to block particular individuals from viewing posts—violate the Constitution. Extending the First Amendment’s reach in that fashion would be particularly inappropriate in light of the Supreme Court’s reluctance to apply traditional First Amendment restrictions, such as forum analysis, in inapposite contexts. See United States v.

1 Defendants take no position on the scheduling of a pre-motion conference.

Case 1:17-cv-05205-NRB Document 21 Filed 08/11/17 Page 2 of 3
Am. Library Ass’n, Inc., 539 U.S. 194, 205 (2003) (holding that First Amendment “forum analysis and heightened judicial scrutiny” were “out of place” in assessing a library’s discretionary decisions about internet content). And, more broadly, such a novel holding would cast doubt on the ability of government officials to direct their communications to particular audiences.
Additionally, Plaintiffs are not likely to succeed on the merits because this Court does not have jurisdiction to redress Plaintiffs’ alleged First Amendment injury. To do so would require an injunction ordering the President to “unblock” particular individuals—relief that this Court cannot award. As the Supreme Court acknowledged more than a century ago, courts lack jurisdiction “to enjoin the President in the performance of his official duties.” Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 501 (1866). “The President’s immunity from such judicial relief is ‘a functionally mandated incident of the President’s unique office, rooted in the constitutional tradition of the separation of powers and supported by our history.’” Franklin v. Massachusetts, 505 U.S. 788, 827–28 (1992) (Scalia, J., concurring in part and concurring in the judgment) (quoting Nixon v. Fitzgerald, 457 U.S. 731, 749 (1982)).
Injunctive relief is particularly inappropriate here because it would involve compelling the President to take an otherwise discretionary action. See Mississippi, 71 U.S. (4 Wall.) at 499-501 (contrasting “a mere ministerial duty, . . . which might be judicially enforced,” with a discretionary or “purely executive and political” duty, which a court lacks jurisdiction to enforce). To the extent that the President’s management of his Twitter account constitutes state action, it is unquestionably action that lies within his discretion as Chief Executive; it is therefore outside the scope of judicial enforcement. Without relief that would redress their alleged injury, Plaintiffs cannot succeed on the merits.
Second, Plaintiffs will not suffer irreparable harm if the Court allows this litigation to unfold in the normal course. As a threshold matter, there can be no irreparable harm if there is no First Amendment injury. Hsu v. Roslyn Union Free Sch. Dist. No. 3, 85 F.3d 839, 853 (2d Cir. 1996); see also McNeilly v. Land, 684 F.3d 611, 621 (6th Cir. 2012) (“Because McNeilly does not have a likelihood of success on the merits . . . his argument that he is irreparably harmed by the deprivation of his First Amendment rights also fails.”). Additionally, Plaintiffs can continue to read all of the tweets from the @realDonaldTrump account—in real time—while this litigation pends. The @realDonaldTrump account is public, and it is therefore viewable by anyone who is not logged in to Twitter. See Blocking accounts on Twitter, Twitter, https://support.twitter.com/ articles/117063# (last visited Aug. 11, 2017) (noting that if a blocked user “isn’t logged in [to Twitter] or is accessing Twitter content via a third party, they may be able to see your public Tweets”). Finally, at least two plaintiffs still have the ability respond to the Presidents tweets, see Compl. ¶¶ 59, 67 (explaining that these plaintiffs use a third-party application to view and respond to the tweets), and the remaining plaintiffs remain free to use Twitter (or any other social media platform) to criticize the President. Accordingly, although “[t]he loss of First Amendment freedoms” generally “constitutes irreparable injury,” this case is a far cry from Elrod v. Burns, where individuals faced discharge or threats of discharge “solely for the reason that they were not affiliated with or sponsored by the Democratic Party.” 427 U.S. 347, 350, 373 (1976). No comparable injury is at issue here.
Page 2

Case 1:17-cv-05205-NRB Document 21 Filed 08/11/17 Page 3 of 3
Third, the balance of the equities and the public interest tip decidedly against Plaintiffs. As noted above, any impairment of Plaintiffs’ speech during this litigation is minimal. The fact that Plaintiffs have waited nearly a month since filing their complaint to request a preliminary injunction reinforces that conclusion. Compare Letter Mot. at 1 (dated Aug. 8, 2017), with Compl. at 25 (dated July 11, 2017). By contrast, imposing a preliminary injunction would raise profound separation-of-powers concerns by intruding directly into the President’s chosen means of communicating to millions of Americans. See Swan v. Clinton, 100 F.3d 973, 978 (D.C. Cir. 1996) (“[F]or the President to ‘be ordered to perform particular executive . . . acts at the behest of the Judiciary’ at best creates an unseemly appearance of constitutional tension and at worst risks a violation of the constitutional separation of powers.” (citation omitted) (quoting Franklin, 505 U.S. at 827 (Scalia, J., concurring in part and concurring in the judgment)). Even if this Court ultimately were to entertain the possibility of such relief, it should not do so in the expedited posture of a motion for preliminary injunction.
For the foregoing reasons, Defendants respectfully submit that the Court should not permit Plaintiffs to seek a preliminary injunction.
Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
ERIC R. WOMACK Assistant Branch Director
By: /s/ Michael H. Baer MICHAEL H. BAER Trial Attorney U.S. Department of Justice, Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530 Telephone: (202) 305-8573 Facsimile: (202) 616-8460 E-mail: Michael.H.Baer@usdoj.gov
Counsel for Defendants
Page 3

 
 Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 1 of 75

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------------------X KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY, REBECCA BUCKWALTER, PHILIP COHEN, HOLLY FIGUEROA, EUGENE GU, BRANDON NEELY, JOSEPH PAPP, and NICHOLAS PAPPAS,
Plaintiffs,

MEMORANDUM AND ORDER 17 Civ. 5205 (NRB)

- against -

DONALD J. TRUMP, HOPE HICKS, SARAH HUCKABEE SANDERS, and DANIEL SCAVINO,

Defendants. ----------------------------------------X

NAOMI REICE BUCHWALD UNITED STATES DISTRICT JUDGE

This case requires us to consider whether a public official

may, consistent with the First Amendment, “block” a person from

his Twitter account in response to the political views that person

has expressed, and whether the analysis differs because that public

official is the President of the United States. The answer to

both questions is no.

Our analysis proceeds as follows. We first set forth the

background facts regarding Twitter as a platform, the

@realDonaldTrump account that is the center of this dispute, the

plaintiffs, and this case’s procedural history.

Because

defendants object to our adjudication of this case based on

plaintiffs’ lack of standing, we then turn -- as we must -- to the

consideration of those jurisdictional arguments. We conclude that

1

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 2 of 75
the plaintiffs have established the prerequisites to our jurisdiction: they have experienced a legally cognizable injury, those injuries are traceable to the President and Daniel Scavino’s conduct, and a favorable judicial decision on the merits is likely to redress those injuries.
We then proceed to the substance of plaintiffs’ First Amendment claims. We hold that portions of the @realDonaldTrump account -- the “interactive space” where Twitter users may directly engage with the content of the President’s tweets -- are properly analyzed under the “public forum” doctrines set forth by the Supreme Court, that such space is a designated public forum, and that the blocking of the plaintiffs based on their political speech constitutes viewpoint discrimination that violates the First Amendment. In so holding, we reject the defendants’ contentions that the First Amendment does not apply in this case and that the President’s personal First Amendment interests supersede those of plaintiffs.
Finally, we consider what form of relief should be awarded, as plaintiffs seek both declaratory relief and injunctive relief. While we reject defendants’ categorical assertion that injunctive relief cannot ever be awarded against the President, we nonetheless conclude that it is unnecessary to enter that legal thicket at this time. A declaratory judgment should be sufficient, as no government official -- including the President -- is above the
2

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 3 of 75
law, and all government officials are presumed to follow the law as has been declared. I. Background
The facts presented below are drawn almost entirely from the stipulation of facts between the parties, see Stipulation, Sept. 28, 2017, ECF No. 30-1, which “applies exclusively to this litigation and does not constitute an admission for purposes of any other proceeding,” Stip. at 1.1
A. The Twitter Platform “Twitter is a social media platform with more than 300 million active users worldwide, including some 70 million in the United States.” Stip. ¶ 13. A “‘user’ is an individual who has created an account on the platform.” Stip. ¶ 14. “A Twitter user must have an account name, which is an @ symbol followed by a unique identifier (e.g., @realDonaldTrump), and a descriptive name (e.g., Donald J. Trump). The account name is called the user’s ‘handle.’” Stip. ¶ 16. Twitter “allows users to post short messages,” Stip. ¶ 13, which are called “tweets,” Stip. ¶ 14. Tweets may be “up to [280] characters in length,”2 may “include photographs, videos, and
1 We appreciate the parties’ professional response to our suggestion that they stipulate to the underlying facts so that the legal issues presented by this dispute could be addressed without the need to undertake a lengthy discovery process.
2 At the time of the parties’ stipulation, most users were limited to 140 characters per tweet. The limit has since been increased to 280 characters. See Aliza Rosen, Tweeting Made Easier, Twitter (Nov. 7, 2017), https://blog .twitter.com/official/en_us/topics/product/2017/tweetingmadeeasier.html.
3

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 4 of 75
links,” and are posted “to a webpage on Twitter that is attached to the user’s account.” Stip. ¶ 14. “An individual ‘tweet’ comprises the tweeted content (i.e., the message, including any embedded photograph, video, or link), the user’s account name (with a link to the user’s Twitter webpage), the user’s profile picture, the date and time the tweet was generated, and the number of times the tweet has been replied to . . . , retweeted by . . . , or liked by . . . other users.” Stip. ¶ 17.
The Twitter webpage that displays the collection of a user’s tweets is known as the user’s “timeline.” Stip. ¶ 15. “When a user generates a tweet, the timeline updates immediately to include that tweet,” and “[a]nyone who can view a user’s Twitter webpage can see the user’s timeline.” Stip. ¶ 15. “A user’s Twitter webpage may also include a short biographical description; a profile picture, such as a headshot; a ‘header’ image, which appears as a banner at the top of the webpage; the user’s location; a button labeled ‘Message,’ which allows two users to correspond privately; and a small sample of photographs and videos posted to the user’s timeline, which link to a full gallery.” Stip. ¶ 16. “By default, Twitter webpages and their associated timelines are visible to everyone with internet access, including those who are not Twitter users. However, although non-users can view users’ Twitter webpages (if the accounts are public), they cannot interact with users on the Twitter platform.” Stip. ¶ 18.
4

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 5 of 75
A defining feature of Twitter is a user’s ability “to repost or respond to others’ messages, and to interact with other Twitter users in relation to those messages.” Stip. ¶ 13. “Beyond posting tweets . . . , Twitter users can engage with one another in a variety of ways.” Stip. ¶ 21. First, “they can ‘retweet’ -- i.e., repost -- the tweets of other users, either by posting them directly to their own followers or by ‘quoting’ them in their own tweets. When a user retweets a tweet, it appears on the user’s timeline in the same form as it did on the original user’s timeline, but with a notation indicating that the post was retweeted.” Stip. ¶ 21. Second, “[a] Twitter user can also reply to other users’ tweets. Like any other tweet, a reply can be up to [280] characters in length and can include photographs, videos, and links.” Stip. ¶ 22. This reply may be viewed in two places: when a user sends a reply, “the reply appears on the user’s timeline under a tab labeled ‘Tweets & replies.’” However, the reply may also be accessed from the feed of the user sending the tweet being replied to: “by clicking on the tweet that prompted the reply[,] the reply will appear below the original tweet, along with other users’ replies to the same tweet.” Stip. ¶ 22. Third, “[a] Twitter user can also ‘favorite’ or ‘like’ another user’s tweet by clicking on the heart icon that appears under the tweet. By ‘liking’ a tweet, a user may mean to convey approval or to acknowledge having seen the tweet.” Stip. ¶ 24. Fourth, “[a]
5

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 6 of 75
Twitter user can also ‘mention’ another user by including the other user’s Twitter handle in a tweet. A Twitter user mentioned by another user will receive a ‘notification’ that he or she has been mentioned in another user’s tweet.” Stip. ¶ 25. Finally, “Twitter users can subscribe to other users’ messages by ‘following’ those users’ accounts. Users generally can see all tweets posted or retweeted by accounts they have followed.” Stip. ¶ 19. “Tweets, retweets, replies, likes, and mentions are controlled by the user who generates them. No other Twitter user can alter the content of any retweet or reply, either before or after it is posted. Twitter users cannot prescreen tweets, replies, likes, or mentions that reference their tweets or accounts.” Stip. ¶ 26.
Because a retweet or a reply to a tweet is itself a tweet, each retweet and reply, recursively, may be retweeted, replied to, or liked. “A Twitter user can also reply to other replies. A user whose tweet generates replies will see the replies below his or her original tweet, with any replies-to-replies nested below the replies to which they respond. The collection of replies and replies-to-replies is sometimes referred to as a ‘comment thread.’” Stip. ¶ 23. “Twitter is called a ‘social’ media platform in large part because of comment threads, which reflect multiple overlapping ‘conversations’ among and across groups of users.” Stip. ¶ 23.
6

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 7 of 75
In addition to these means of interaction, Twitter offers two means of limiting interaction with other users: blocking and muting. First, “[a] user who wants to prevent another user from interacting with her account on the Twitter platform can do so by ‘blocking’ that user. (Twitter provides users with the capability to block other users, but it is the users themselves who decide whether to make use of this capability.) When a user is signed in to a Twitter account that has been blocked, the blocked user cannot see or reply to the blocking user’s tweets, view the blocking user’s list of followers or followed accounts, or use the Twitter platform to search for the blocking user’s tweets. The blocking user will not be notified if the blocked user mentions her or posts a tweet; nor, when signed in to her account, will the blocking user see any tweets posted by the blocked user.” Stip. ¶ 28. “If, while signed in to the blocked account, the blocked user attempts to follow the blocking user, or to access the Twitter webpage from which the user is blocked, the blocked user will see a message indicating that the other user has blocked him or her from following the account and viewing the tweets associated with the account.” Stip. ¶ 29.
While blocking precludes the blocked user from directly interacting with the blocking user’s tweets -- including from replying or retweeting those tweets, blocking does not eliminate all interaction between the blocked user and the blocking user.
7

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 8 of 75
“After a user has been blocked, the blocked user can still mention the blocking user. Tweets mentioning the blocking user will be visible to anyone who can view the blocked user’s tweets and replies. A blocked user can also reply to users who have replied to the blocking user’s tweets, although the blocked user cannot see the tweet by the blocking user that prompted the original reply. These replies-to-replies will appear in the comment thread, beneath the reply to the blocking user’s original tweet.” Stip. ¶ 30. Further, “[i]f a blocked user is not signed in to Twitter, he or she can view all of the content on Twitter that is accessible to anyone without a Twitter account.” Stip. ¶ 31.
As distinguished from blocking, “[m]ut[ing] is a feature that allows [a user] to remove an account's Tweets from [his or her] timeline without unfollowing or blocking that account. Muted accounts will not know that [the muting user has] muted them and [the muting user] can unmute them at any time.” How to Mute Accounts on Twitter, Twitter (last visited May 22, 2018), https:// help.twitter.com/en/using-twitter/twitter-mute [hereinafter How to Mute].3 “Muted accounts can follow [the muting user] and [the muting user] can follow muted accounts. Muting an account will not cause [the muting user] to unfollow them.” Id. If a muting user follows a muted user, “[r]eplies and mentions by the muted
3 The parties agree that we “may take judicial notice of the information published in the ‘Using Twitter’ and ‘Policies and reporting’ guides available on Twitter’s ‘Twitter Support’ webpage.” Stip. at 3 n.2.
8

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 9 of 75
account will still appear in [the muting user’s] Notifications tab,” and “[w]hen [the muting user] click[s] or tap[s] into a conversation, replies from muted accounts will be visible.” Id. By contrast, if a muting user does not follow a muted user, “[r]eplies and mentions will not appear in [the muting user’s] Notifications tab,” and “[w]hen [the muting user] click[s] or tap[s] into a conversation, replies from muted accounts will be not visible.” Id.
B. The @realDonaldTrump Account “Donald Trump established @realDonaldTrump in March 2009. Before his inauguration, he used this account to tweet about a variety of topics, including popular culture and politics. Since his inauguration in January 2017, President Trump has used the @realDonaldTrump account as a channel for communicating and interacting with the public about his administration. He also has continued to use the account, on occasion, to communicate about other issues not directly related to official government business.” Stip. ¶ 32. “The Twitter page associated with the account is registered to Donald J. Trump, ‘45th President of the United States of America, Washington, D.C.’” Stip. ¶ 35. “The @realDonaldTrump account is generally accessible to the public at large without regard to political affiliation or any other limiting criteria.” Stip. ¶ 36. “[A]ny member of the public can view his tweets without being signed in to Twitter, and anyone who wants to
9

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 10 of 75
follow the account can do so. President Trump has not issued any rule or statement purporting to limit (by form or subject matter) the speech of those who reply to his tweets.” Stip. ¶ 36.
Since the President’s inauguration, the @realDonaldTrump account has been operated with the assistance of defendant Daniel Scavino, “the White House Social Media Director and Assistant to the President [who] is sued in his official capacity only.” Stip. ¶ 12. “With the assistance of Mr. Scavino in certain instances, President Trump uses @realDonaldTrump, often multiple times a day, to announce, describe, and defend his policies; to promote his Administration’s legislative agenda; to announce official decisions; to engage with foreign political leaders; to publicize state visits; to challenge media organizations whose coverage of his Administration he believes to be unfair; and for other statements, including on occasion statements unrelated to official government business. President Trump sometimes uses the account to announce matters related to official government business before those matters are announced to the public through other official channels.” Stip. ¶ 38. “For example, the President used @realDonaldTrump to announce on June 7, 2017, for the first time, that he intended to nominate Christopher Wray for the position of FBI director.” Stip. ¶ 38. Since the parties’ stipulation, the President has also used the @realDonaldTrump account in removing
10

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 11 of 75
then-Secretary of State Rex Tillerson4 and then-Secretary of Veterans Affairs David Shulkin.5 Additionally, “[t]he National Archives and Records Administration has advised the White House that the President’s tweets from @realDonaldTrump . . . are official records that must be preserved under the Presidential Records Act.” Stip. ¶ 40.
“Mr. Scavino in certain instances assists President Trump in operating the @realDonaldTrump account, including by drafting and posting tweets to the account. Other White House aides besides Mr. Scavino will, in certain instances, also suggest content for @realDonaldTrump tweets. President Trump also sometimes dictates tweets to Mr. Scavino, who then posts them on Twitter. President Trump and/or Mr. Scavino sometimes retweet the tweets of those who participate in comment threads associated with the @realDonaldTrump account.” Stip. ¶ 39. “Mr. Scavino has access to the @realDonaldTrump account, including the access necessary to block and unblock individuals from the @realDonaldTrump account,” Stip. ¶ 12, and has explained that @realDonaldTrump is a channel “through which ‘President Donald J. Trump . . . [c]ommunicat[es]
4 Michael C. Bender & Felicia Schwartz, Rex Tillerson Is out as Secretary of State; Donald Trump Taps Mike Pompeo, Wall St. J. (Mar. 13, 2018, 7:20 P.M.), https://www.wsj.com/articles/rex-tillerson-is-out-as-secretary-of-state -donald-trump-taps-mike-pompeo-1520978116.
5 Donovan Slack, Veterans Affairs Secretary David Shulkin Is Out, Trump Announces by Tweet, USA Today (Mar. 28, 2018, 8:46 P.M.), https://www.usatoday .com/story/news/politics/2018/03/28/david-shulkin-veterans-affairs-secretary -forced-out-john-kelly/346741002/.
11

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 12 of 75
directly with you, the American people!’” Stip. ¶ 37 (alterations and omissions in original).
Twitter users engage frequently with the President’s tweets. “Typically, tweets from @realDonaldTrump generate thousands of replies from members of the public, and some of those replies generate hundreds or thousands of replies in turn.” Stip. ¶ 41. “For example, on July 26, 2017, President Trump issued a series of tweets . . . announcing ‘that the United States Government will not accept or allow . . . Transgender individuals to serve’ in the military, and after less than three hours, the three tweets, collectively, had been retweeted nearly 70,000 times, liked nearly 180,000 times, and replied to about 66,000 times.” Stip. ¶ 41 (second omission in original). “This level of engagement is typical for President Trump’s tweets,” Stip. ¶ 42, which “frequently receive 15,000–20,000 retweets or more,” Stip. ¶ 42, and “are each replied to tens of thousands of times,” Stip. ¶ 43.
C. The Individual Plaintiffs Rebecca Buckwalter, Philip Cohen, Holly Figueroa, Eugene Gu, Brandon Neely, Joseph Papp, and Nicholas Pappas (collectively, the “individual plaintiffs”), are all Twitter users. Stip. ¶¶ 2-8. They each tweeted a message critical of the President or his policies in reply to a tweet from the @realDonaldTrump account. Stip. ¶¶ 46-52. Each individual plaintiff had his or her account blocked shortly thereafter, and each account remains blocked.
12

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 13 of 75
Stip. ¶¶ 46-52. Defendants do “not contest Plaintiffs’ allegation that the Individual Plaintiffs were blocked from the President’s Twitter account because the Individual Plaintiffs posted tweets that criticized the President or his policies.” Stip. at 1.
“As a result of the President’s blocking of the Individual Plaintiffs from @realDonaldTrump, the Individual Plaintiffs cannot view the President’s tweets; directly reply to these tweets; or use the @realDonaldTrump webpage to view the comment threads associated with the President’s tweets while they are logged in to their verified accounts.” Stip. ¶ 54. However, “[t]he Individual Plaintiffs can view tweets from @realDonaldTrump when using an internet browser or other application that is not logged in to Twitter, or that is logged in to a Twitter account that is not blocked by @realDonaldTrump.” Stip. ¶ 55. Additionally, “[s]ome of the Individual Plaintiffs have established second accounts so that they can view the President’s tweets.” Stip. ¶ 56.
Blocking does not completely eliminate the individual plaintiffs’ ability to interact with the President’s tweets. “The Individual Plaintiffs can view replies to @realDonaldTrump tweets, and can post replies to those replies, while logged in to the blocked accounts. Replies-to-replies appear in the comment threads that originate with @realDonaldTrump tweets and are visible to users who have not blocked (or been blocked by) the Individual Plaintiffs.” Stip. ¶ 57. “Although the Individual Plaintiffs who have been blocked have the ability to view and reply
13

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 14 of 75
to replies to @realDonaldTrump tweets, they cannot see the original @realDonaldTrump tweets themselves when signed in to their blocked accounts, and in many instances it is difficult to understand the reply tweets without the context of the original @realDonaldTrump tweets.” Stip. ¶ 58. While “[i]n the past, Plaintiffs Holly Figueroa, Eugene Gu, and Brandon Neely used a third-party service called Favstar that could be used by blocked users to view and reply to a blocking account’s tweets if the blocked user established a Favstar account and followed certain steps[,] [t]he parties’ understanding is that it is no longer possible for blocked users to use the Favstar service to view and reply to a blocking account’s tweets.” Stip. ¶ 59.
These workarounds “require [the individual plaintiffs] to take more steps than non-blocked, signed-in users to view the President’s tweets.” Stip. ¶ 55. “All of the Individual Plaintiffs have found these various ‘workarounds’ to be burdensome and to delay their ability to respond to @realDonaldTrump tweets. As a result, four of the Individual Plaintiffs do not use them and the others use them infrequently.” Stip. ¶ 60.
D. The Knight Institute The “Knight First Amendment Institute at Columbia University is a 501(c)(3) organization that works to defend and strengthen the freedoms of speech and the press in the digital age through strategic litigation, research, and public education. Staff at
14

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 15 of 75
the Knight First Amendment Institute operate a Twitter account under the handle @knightcolumbia, and this account follows @realDonaldTrump.” Stip. ¶ 1. In contrast to the individual plaintiffs, “[t]he Knight Institute has not been blocked from the @realDonaldTrump account.” Stip. ¶ 61. However, “[t]he Knight Institute desires to read comments that otherwise would have been posted by the blocked Plaintiffs, and by other accounts blocked by @realDonaldTrump, in direct reply to @realDonaldTrump tweets,” Stip. ¶ 61, and “[t]he @knightcolumbia account follows Professor Cohen’s account, @familyunequal,” Stip. ¶ 62. “As of August 22, 2017,” however, “the Knight Institute did not follow the other six Individual Plaintiffs on Twitter.” Stip. ¶ 62.
E. Procedural History The Knight Institute and the individual plaintiffs filed suit in July 2017, seeking declaratory and injunctive relief and naming the President, Scavino, and then-White House Press Secretary Sean Spicer as defendants. Compl., July 11, 2017, ECF No. 1. After Spicer’s resignation in late July 2017, his successor as White House Press Secretary, Sarah Huckabee Sanders, and White House Communications Director Hope Hicks were substituted in his place pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.6
6 Hicks has since resigned her position as White House Communications Director. See Katie Rogers & Maggie Haberman, Hope Hicks is Gone, and It’s Not Clear Who Can Replace Her, N.Y. Times (Mar. 29, 2018), https://www.nytimes.com /2018/03/29/us/politics/hope-hicks-white-house.html. Because plaintiffs seek only prospective relief and Hicks was sued only in her official capacity, Stip.
15

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 16 of 75
See Letter from Jameel Jaffer and Michael H. Baer to the Court, Sept. 25, 2017, ECF No. 28. After entering into the stipulation of facts, defendants moved for summary judgment on October 13, 2017 and plaintiffs cross-moved for summary judgment on November 3, 2017. We heard oral argument on March 8, 2018. II. Standing
Before turning to the merits of this dispute, “we are required to assure ourselves of jurisdiction.” Am. Atheists, Inc. v. Port Auth. of N.Y. & N.J., 760 F.3d 227, 237 n.11 (2d Cir. 2014). At bottom, the “judicial Power of the United States” is constitutionally limited to “Cases” and “Controversies.” U.S. Const. art. III, § 2. Because “[s]tanding to sue is a doctrine rooted in the traditional understanding of a case or controversy,” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016), “[w]hether a claimant has standing is the threshold question in every federal case, determining the power of the court to entertain the suit,” Fair Hous. in Huntington Comm. Inc. v. Town of Huntington, 316 F.3d 357, 361 (2d Cir. 2003). “If plaintiffs lack Article III standing, a court has no subject matter jurisdiction to hear their claim.” Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care, L.L.C., 433 F.3d 181, 198 (2d Cir. 2005).
¶ 10, the fact of Hicks’s resignation alone warrants summary judgment in her favor. Further, because the President has not yet appointed Hicks’s successor, no substitution by operation of Rule 25(d) can occur. Hicks will therefore be dismissed as a defendant, and no one will be substituted in her stead at this time. The Clerk of the Court is directed to amend the caption of this case accordingly.
16

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 17 of 75
The Supreme Court has “established that the ‘irreducible constitutional minimum’ of standing consists of three elements.” Spokeo, 136 S. Ct. at 1547 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). “The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Id. “The plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing these elements.” Id. “Since they are not mere pleading requirements but rather an indispensable part of the plaintiff’s case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Defs. of Wildlife, 504 U.S. at 561. “In response to a summary judgment motion, however, the plaintiff can no longer rest on such ‘mere allegations,’ but must ‘set forth’ by affidavit or other evidence ‘specific facts’” supporting its standing. Id. (quoting Fed. R. Civ. P. 56(e)). Conversely, in order to grant summary judgment in a plaintiff’s favor, there must be no genuine issue of material fact as to that plaintiff’s standing.
Because “the standing inquiry requires careful judicial examination of . . . whether the particular plaintiff is entitled to an adjudication of the particular claims asserted,” Allen v.
17

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 18 of 75
Wright, 468 U.S. 737, 752 (1984) (emphasis added), standing must be assessed as to each plaintiff and each “plaintiff must demonstrate standing separately for each form of relief sought,” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185 (2000). Further, because Article III does not “permit[] suits against non-injurious defendants as long as one of the defendants in the suit injured the plaintiff,” standing must also be assessed as against each defendant. Mahon v. Ticor Title Ins. Co., 683 F.3d 59, 62 (2d Cir. 2012).
We consider the three elements of standing as to the individual plaintiffs before turning to the Knight Institute’s standing.
A. Injury-in-Fact “To establish injury in fact, a plaintiff must show that he or she suffered an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical.” Spokeo, 136 S. Ct. at 1548 (internal quotation marks omitted). However, “[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.” City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (alteration and omission in original) (quoting O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974)). Though “[p]ast wrongs” serve as “evidence bearing on
18

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 19 of 75
whether there is a real and immediate threat of repeated injury,” id. (internal quotation marks omitted), “[a] plaintiff seeking injunctive or declaratory relief cannot rely on past injury to satisfy the injury requirement,” Deshawn E. ex rel. Charlotte E. v. Safir, 156 F.3d 340, 344 (2d Cir. 1998). Rather, that plaintiff “must show a likelihood that he or she will be injured in the future.” Id.7
“Although imminence is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose, which is to ensure that the alleged injury is not too speculative for Article III purposes.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (quoting Defs. of Wildlife, 504 U.S. at 565 n.2). Therefore, “threatened injury must be ‘certainly impending’ to constitute injury in fact” that satisfies Article III’s requirements. Whitmore v. Arkansas, 495 U.S. 149, 158 (1990) (quoting Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979)). A “theory of standing [that] relies on a highly attenuated chain of possibilities[] does not satisfy the requirement that threatened injury must be certainly impending,” nor does an “objectively reasonable likelihood” that the injury will occur. Clapper, 568
7 The absence of future injury also precludes a finding of redressability, thereby defeating standing to seek injunctive relief on a second basis. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 109 (1998) (“Because [plaintiff] alleges only past infractions of [law], and not a continuing violation or the likelihood of a future violation, injunctive relief will not redress its injury.”).
19

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 20 of 75
U.S. at 410 (citing Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009), and Whitmore, 495 U.S. at 157-60).
Further, the injury must be concrete and particularized. “For an injury to be ‘particularized,’ it ‘must affect the plaintiff in a personal and individual way.’” Spokeo, 136 S. Ct. at 1548 (quoting Defs. of Wildlife, 504 U.S. at 560 n.1). The plaintiff “must have a personal stake in the outcome” and must assert “something more than generalized grievances.” United States v. Richardson, 418 U.S. 166, 179-80 (1974) (internal quotation marks omitted). An “impact on him [that] is plainly undifferentiated and common to all members of the public” is insufficient, id. at 176 (internal quotation marks omitted), as is a mere “special interest” in a given problem without more, Sierra Club v. Morton, 405 U.S. 727, 739 (1972). At the same time, “standing is not to be denied simply because many people suffer the same injury.” Massachusetts v. EPA, 549 U.S. 497, 526 n.24 (2007) (quoting United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 687 (1973)). “The fact that an injury may be suffered by a large number of people does not of itself make that injury a nonjusticiable generalized grievance.” Spokeo, 136 S. Ct. at 1548 n.7.
Concreteness “is quite different from particularization.” Id. at 1548. “A ‘concrete’ injury must be ‘de facto’; that is, it must actually exist.” Id. The term “‘[c]oncrete’ is not, however,
20

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 21 of 75
necessarily synonymous with ‘tangible,’” and “intangible injuries” -- including infringements on the exercise of First Amendment rights -- “can nevertheless be concrete.” Id. at 1549 (citing Pleasant Grove City v. Summum, 555 U.S. 460 (2009), and Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993)).
In this case, the record establishes a number of limitations on the individual plaintiffs’ use of Twitter as a result of having been blocked. As long as they remain blocked, “the Individual Plaintiffs cannot view the President’s tweets; directly reply to these tweets; or use the @realDonaldTrump webpage to view the comment threads associated with the President’s tweets while they are logged in to their verified accounts.” Stip. ¶ 54. While alternative means of viewing the President’s tweets exist, Stip. ¶¶ 55-56, and the individual plaintiffs “have the ability to view and reply to replies to @realDonaldTrump tweets, they cannot see the original @realDonaldTrump tweets themselves when signed in to their blocked accounts, and in many instances it is difficult to understand the reply tweets without the context of the original @realDonaldTrump tweets,” Stip. ¶ 58.
These limitations are cognizable injuries-in-fact. The individual plaintiffs’ ability to communicate using Twitter has been encumbered by these limitations (regardless of whether they are harms cognizable under the First Amendment). Further, as long
21

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 22 of 75
as the individual plaintiffs remain blocked, their ability to communicate using Twitter will continue to be so limited. Stip. ¶¶ 28-31, 54. The individual plaintiffs have experienced past harm in that their ability to use Twitter to interact with the President’s tweets has been limited, and -- absent some unforeseen change to the blocking functionality -- they will continue to experience that harm as long as they are blocked. These future harms are not only certainly impending as required for standing purposes, but they are in fact virtually certain because the individual plaintiffs continue to be blocked.8
These injuries are also concrete and particularized. While they are not tangible in nature, these limitations are squarely within the “intangible injuries” previously determined to be concrete. See Spokeo, 136 S. Ct. at 1549. These limitations are also particularized, in that they have affected and will affect the individual plaintiffs in a “personal and individual way” -each contends that his or her personal First Amendment rights have been and will continue to be encumbered, and the ability to communicate has been and will be limited because of each individual
8 Further, the Court suggested at oral argument that the parties consider a resolution of this dispute under which the individual plaintiffs would be unblocked and subsequently muted, an approach that would restore the individual plaintiffs’ ability to interact directly with (including by replying directly to) tweets from the @realDonaldTrump account while preserving the President’s ability to ignore tweets sent by users from whom he does not wish to hear. The fact that no such resolution has been reached further suggests that the individual plaintiffs will continue to be blocked and, consequently, will continue to face the harms of which they complain.
22

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 23 of 75
plaintiff’s personal ownership of a Twitter account that was blocked. See id. at 1548. We accordingly conclude that the individual plaintiffs have established imminent injury-in-fact that is concrete and particularized, which is sufficient for Article III standing purposes.
B. Causation The causation requirement demands that the complained-of injury “fairly can be traced to the challenged action of the defendant” as opposed to “injury that results from the independent action of some third party not before the court.” Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41–42 (1976). While the Supreme Court has often defined the causation prong of standing with reference to a defendant’s challenged action, it has also referred to a defendant’s “conduct.” See, e.g., Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982) (quoting Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1979)). Accordingly, an omission may provide a basis for standing just as an affirmative action may. See Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.à.r.l., 790 F.3d 411, 417 (2d Cir. 2015) (describing causation as requiring “that the injury was in some sense caused by the opponent’s action or omission”); see also, e.g., Elec. Privacy Info. Ctr. v. Presidential Advisory Comm’n on Election Integrity, 878 F.3d 371,
23

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 24 of 75
378 (D.C. Cir. 2017) (referring to a “defendant’s action or omission”).
“The traceability requirement for Article III standing means that the plaintiff must ‘demonstrate a causal nexus between the defendant’s conduct and the injury.’” Rothstein v. UBS AG, 708 F.3d 82, 91 (2d Cir. 2013) (quoting Heldman v. Sobol, 962 F.2d 148, 156 (2d Cir. 1992)). “Proximate causation is not a requirement of Article III standing, which requires only that the plaintiff’s injury be fairly traceable to the defendant’s conduct.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377, 1391 n.6 (2014).
1. Sarah Huckabee Sanders Plaintiffs have not established standing against defendant Sanders. “Ms. Sanders does not have access to the @realDonaldTrump account,” Stip. ¶ 11, and plaintiffs do not suggest that Sanders blocked the individual plaintiffs in the first instance or that she could unblock the individual plaintiffs upon a legal finding that such blocking is constitutionally impermissible. Accordingly, plaintiffs do not challenge any action that Sanders has taken (or can take). The individual plaintiffs’ injuries-infact are not attributable to Sanders, and they accordingly lack Article III standing to sue her. See, e.g., Simon, 426 U.S. at 41-42. Summary judgment will therefore be granted in favor of defendant Sanders.
24

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 25 of 75
2. Daniel Scavino In contrast to Sanders, “Mr. Scavino has access to the @realDonaldTrump account, including the access necessary to block and unblock individuals from the @realDonaldTrump account.” Stip. ¶ 12. Indeed, “Mr. Scavino posts messages on behalf of President Trump to @realDonaldTrump and other social media accounts,” Stip. ¶ 12, and “assists President Trump in operating the @realDonaldTrump account, including by drafting and posting tweets to the account,” Stip. ¶ 39. While Scavino unquestionably has access to the @realDonaldTrump account and participates in its operation, such involvement does not, by itself, establish that the plaintiffs’ injuries may be fairly traced to an action taken by Scavino as required for standing purposes. The only evidence in the record as to Scavino pertains to this general involvement, and the record is devoid of any suggestion that he blocked the individual plaintiffs. Nonetheless, the Second Circuit and several other Courts of Appeals have recognized that in cases seeking prospective relief, an official defendant’s lack of personal involvement in past constitutional violations does not render that defendant an improper one for purposes of prospective declaratory or injunctive relief from continuing violations -- provided that the defendant maintains some connection to, or responsibility for, the continuing violation. See Koehl v. Dalsheim, 85 F.3d 86, 89 (2d
25

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 26 of 75
Cir. 1996) (holding that “the complaint also sought injunctive relief against [a defendant official], and dismissal of that claim was not warranted” despite the “lack of an allegation of personal involvement” warranting dismissal of a damages claim); Pugh v. Goord, 571 F. Supp. 2d 477, 517 (S.D.N.Y. 2008) (Sullivan, J.) (requiring “only that a defendant have a ‘connection’ with the [allegedly unconstitutional] act, and not more” (citing, inter alia, Dairy Mart Convenience Stores, Inc. v. Nickel (In re Dairy Mart Convenience Stores, Inc.), 411 F.3d 367, 372-73 (2d Cir. 2005))); Loren v. Levy, No. 00 Civ. 7687, 2003 WL 1702004, at *11 (S.D.N.Y. Mar. 31, 2003) (Chin, J.) (“[A]ctions involving claims for prospective declaratory or injunctive relief are permissible provided the official against whom the action is brought has a direct connection to, or responsibility for, the alleged illegal action.” (quoting Davidson v. Scully, 148 F. Supp. 2d 249, 254 (S.D.N.Y. 2001)), aff’d, 120 F. App’x 393 (2d Cir. 2005); see also Parkell v. Danberg, 833 F.3d 313, 332 (3d Cir. 2016) (“Our conclusion that the State Defendants lacked personal involvement in past constitutional violations does not preclude [plaintiff] from obtaining prospective injunctive relief for ongoing violations.”); Pouncil v. Tilton, 704 F.3d 568, 576 (9th Cir. 2012) (concluding that a named defendant official was a “proper defendant on a claim for prospective injunctive relief . . . because he would be responsible for ensuring that injunctive relief was carried
26

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 27 of 75
out, even if he was not personally involved in the decision giving rise to [plaintiff’s] claims”); Gonzalez v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011) (per curiam) (“[S]ince [plaintiff] also seeks injunctive relief it is irrelevant whether [the defendant official] participated in the alleged violations.”).
While this line of cases developed in the context of suits against state officials and the Ex parte Young exception to state sovereign immunity under the Eleventh Amendment, see In re Dairy Mart, 411 F.3d at 372-73; see also Finstuen v. Crutcher, 496 F.3d 1139, 1151 (10th Cir. 2007); Pennington Seed, Inc. v. Produce Exch. No. 299, 457 F.3d 1334, 1341-42 (Fed. Cir. 2006), it is no less applicable to the present context of suits against federal officials.9 As the Supreme Court has explained, suits seeking prospective relief against federal officials alleging continuing constitutional violations and those against state officials share common characteristics and a common historical basis: “we have long held that federal courts may in some circumstances grant injunctive relief against state officers who are violating, or planning to violate, federal law. But that has been true not only with respect to violations of federal law by state officials, but also with respect to violations of federal law by federal officials.” Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct.
9 Both parties’ reliance on other precedents developed in the context of suits against state officials under 42 U.S.C. § 1983 further persuades us that this line of precedent is applicable here.
27

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 28 of 75
1378, 1384 (2015) (citations omitted). “The ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity, and reflects a long history of judicial review of illegal executive action, tracing back to England.” Id. (emphasis added).
The lack of a prior personal involvement requirement in actions seeking prospective relief does not vitiate standing’s traceability requirement, as defendants suggest. The defendant official’s connection to the ongoing violation, see, e.g., Parkell, 833 F.3d at 332; Pouncil, 704 F.3d at 576; Gonzalez, 663 F.3d at 315; Pugh, 571 F. Supp. 2d at 517, satisfies the traceability requirement. Assuming the existence of an ongoing violation, an official who has some connection to the violation - i.e., one who may prospectively remedy it -- will contribute to the violation and the future injury-in-fact that it may inflict by failing to do so. Here, assuming that the blocking of the individual plaintiffs infringes their First Amendment rights, those rights will continue to be infringed as long as they remain blocked. Cf. Lyons, 461 U.S. at 102 (“[P]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.” (omission in original) (quoting O’Shea, 414 U.S. at 495-96)). Because Scavino has the ability to unblock the plaintiffs, any future injury will be
28

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 29 of 75
traceable to him because it will have resulted, at least in part, from his failure to unblock them. Ultimately, as defendants’ quoted authority explains, “[s]tanding should be recognized as long as the duty claim survives, but becomes irrelevant when litigation reaches the point of rejecting the duty.” 13A Charles A. Wright et al., Federal Practice & Procedure, § 3531.5 (3d ed.) (Westlaw 2018). Because we must consider standing before the merits, we have not at this point in the analysis considered plaintiffs’ claim that the First Amendment imposes a duty on Scavino to unblock the individual plaintiffs.10 We therefore conclude that the traceability requirement of standing is satisfied as to Scavino.
3. The President The record definitively establishes that the plaintiffs’ injuries-in-fact are directly traceable to the President’s actions. “The President blocked [each of the individual plaintiffs] from the @realDonaldTrump account.” Stip. ¶¶ 46-52; see also Stip. ¶ 54 (referring to “the President’s blocking of the
10 Indeed, this passage of Federal Practice and Procedure suggests that a plaintiff asserting a duty claim has standing as long as the claim remains viable, and that the issue of standing becomes irrelevant when the duty is rejected -- as the claim will have failed on the merits at that point. The government’s argument that plaintiffs lack standing as to Scavino because Scavino has no duty therefore inverts the analysis by resolving the merits before standing. Cf. Steel Co., 523 U.S. at 89 (“[J]urisdiction . . . is not defeated . . . by the possibility that the averments might fail to state a cause of action on which petitioners could actually recover.” (omissions in original) (quoting Bell v. Hood, 327 U.S. 678, 682 (1946)).
29

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 30 of 75
Individual Plaintiffs”). The causation requirement is therefore amply satisfied as to the President.
C. Redressability In order for redressability to be satisfied, “it must be likely that a favorable judicial decision will prevent or redress the injury.” Earth Island Inst., 555 U.S. at 493. That is, redressability must be “likely, as opposed to merely speculative,” Laidlaw, 528 U.S. at 181, but it “is not a demand for mathematical certainty,” Mhany Mgmt., Inc. v. County of Nassau, 819 F.3d 581, 602 (2d Cir. 2016) (quoting Toll Bros., Inc. v. Township of Readington, 555 F.3d 131, 143 (3d Cir. 2009)). “All that is required is a showing that such relief be reasonably designed to improve the opportunities of a plaintiff not otherwise disabled to avoid the specific injury alleged.” Huntington Branch, NAACP v. Town of Huntington, 689 F.2d 391, 394 (2d Cir. 1982). Further, any relief provided need not be complete. “The redressability element of the Article III standing requirement and the ‘complete relief’ referred to by Rule 19 [of the Federal Rules of Civil Procedure] are not identical,” Defs. of Wildlife, 504 U.S. at 570 n.4 (emphasis omitted) (plurality opinion),11 and a
11 Rule 19(a) mandates the joinder of additional persons as parties if “in that person’s absence, the court cannot accord complete relief among existing parties,” provided that the joinder of that party does “not deprive the court of subject-matter jurisdiction.” Fed. R. Civ. P. 19(a)(1)(A). Justice Blackmun, dissenting in Defenders of Wildlife, had contended that the plurality’s analysis of redressability rendered superfluous Rule 19’s contemplation that the joinder of additional parties would be needed to afford
30

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 31 of 75
plaintiff “need not show that a favorable decision will relieve his every injury,” Larson v. Valente, 456 U.S. 228, 244 n.15 (1982). As the Tenth Circuit has subsequently explained, “if the law required that the requested relief afford complete redress, the Supreme Court would not have allowed Massachusetts to proceed against the EPA, as there was no guarantee a favorable decision would mitigate future environmental damage, much less redress it completely.” Consumer Data Indus. Ass’n v. King, 678 F.3d 898, 905 (10th Cir. 2012) (citing Massachusetts v. EPA, 549 U.S. at 526); see also WildEarth Guardians v. U.S. Dep’t of Agric., 795 F.3d 1148, 1156 n.5 (9th Cir. 2015) (“Partial relief . . . would qualify as redress for standing purposes.” (citing Meese v. Keene, 481 U.S. 465, 476-77 (1987))). “[E]ven if [plaintiffs] would not be out of the woods, a favorable decision would relieve their problem ‘to some extent,’ which is all the law requires.” Consumer Data, 678 F.3d at 903.
We therefore conclude that the plaintiffs’ injuries may be redressed through declaratory relief or through injunctive relief directed at Scavino: the plaintiffs’ future injuries will be prevented if they are unblocked -- an action within Scavino’s power. Stip. ¶ 12. Nor is this redressability undercut, as defendants suggest, by the President’s ability to block
complete relief, as redressability would be lacking as an initial matter. See 504 U.S. at 598 n.4 (Blackmun, J., dissenting).
31

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 32 of 75
individuals. The D.C. Circuit has explained that “the partial relief [the plaintiff] can obtain against subordinate executive officials is sufficient for redressability, even recognizing that the President has the power, if he so chose, to undercut this relief,” Swan v. Clinton, 100 F.3d 973, 980-81 (D.C. Cir. 1996), reasoning that has since been adopted by the Eleventh Circuit, see Made in the USA Found. v. United States, 242 F.3d 1300, 1309-11 (11th Cir. 2001). Any declaratory or injunctive relief as to Scavino that results in the unblocking of the individual plaintiffs will redress at least some of their future injury, regardless of whether the President could, theoretically, reblock them subsequently. And of course, “we may assume it is substantially likely that the President and other executive . . . officials would abide by an authoritative interpretation of [a] . . . constitutional provision by the District Court, even though they would not be directly bound by such a determination.” Franklin v. Massachusetts, 505 U.S. 788, 803 (1992) (plurality opinion); see also Utah v. Evans, 536 U.S. 452, 463-64 (2002).12 This substantial likelihood, though not a mathematical certainty, is more than
12 This case involves the interpretation of only one law -- the First Amendment. The Government’s reliance on Delta Construction Co. v. EPA, 783 F.3d 1291 (D.C. Cir. 2015) (per curiam), and Doe v. Cuomo, 755 F.3d 105 (2d Cir. 2014), each of which involved a plaintiff or petitioner subject to the requirements of multiple laws, is accordingly misplaced. In each of those cases, the action that the plaintiff or petitioner sought to undertake would be restricted by the unchallenged law, even if the plaintiff or petitioner were ultimately successful in challenging the first law.
32

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 33 of 75
sufficient to establish the redressability of plaintiffs’
injuries.13
D. The Knight Institute’s Organizational Standing
“Under [the] theory of ‘organizational’ standing, the
organization is just another person -- albeit a legal person --
seeking to vindicate a right.” N.Y. Civil Liberties Union v.
N.Y.C. Transit Auth., 684 F.3d 286, 294 (2d Cir. 2012).14 When
organizations “sue on their own behalf, they must independently
satisfy the requirements of Article III standing.” Knife Rights,
Inc. v. Vance, 802 F.3d 377, 388 (2d Cir. 2015) (citing Havens
Realty Corp. v. Coleman, 455 U.S. 363, 378–79 (1982)). Therefore,
the Knight Institute, “as an organization, [bears] the burden of
showing: (i) an imminent ‘injury in fact’ to itself as an
organization (rather than to its members) that is ‘distinct and
13 Our conclusion that the individual plaintiffs’ injuries are redressable through relief directed at Scavino does not depend on his presence as a defendant. “The power conferred by the [All Writs Act, 28 U.S.C. § 1651,] extends, under appropriate circumstances, to persons who, though not parties to the original action or engaged in wrongdoing, are in a position to frustrate the implementation of a court order or the proper administration of justice, and encompasses even those who have not taken any affirmative action to hinder justice.” United States v. N.Y. Tel. Co., 434 U.S. 159, 174 (1977) (citations omitted); see also Made in the USA, 242 F.3d at 1310 n.25; Swan, 100 F.3d at 980; cf. Fed. R. Civ. P. 65(d)(2) (providing that injunctions and restraining orders bind not only the parties but also their “officers, agents, servants, employees, and attorneys” and “other persons who are in active concert or participation” with those persons). Accordingly, even if Scavino were not a defendant, relief could nonetheless be properly directed at him.
14 An organizational plaintiff may also have associational standing, under which “[a]n association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Laidlaw, 528 U.S. at 181. The Knight Institute does not assert that it has standing under an associational standing theory.
33

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 34 of 75
palpable’; (ii) that its injury is ‘fairly traceable’ to [the complained-of act]; and (iii) that a favorable decision would redress its injuries.” Centro de la Comunidad Hispana de Locust Valley v. Town of Oyster Bay, 868 F.3d 104, 109 (2d Cir. 2017) (quoting Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir. 2011)).
Here, the Knight Institute has sufficiently established an injury-in-fact: the infringement of its desire “to read comments that otherwise would have been posted by the blocked Plaintiffs . . . in direct reply to @realDonaldTrump tweets.” Stip. ¶ 61. This infringement is a cognizable interest for standing purposes, cf. Defs. of Wildlife, 504 U.S. at 562-63 (“[T]he desire to use or observe . . . is undeniably a cognizable interest for purpose of standing”), and the Knight Institute’s following of one of the individual plaintiffs establishes that the Knight Institute “would thereby be ‘directly’ affected apart from” its special interest in the First Amendment, id. at 563. Contrary to defendants’ assertion that the Knight Institute’s standing rests on an impermissibly attenuated chain of possibilities, the injury in question is straightforward: first, the individual plaintiffs cannot reply directly to the President’s tweets because they have been blocked, Stip. ¶¶ 28, 54, and second, the Knight Foundation possesses a desire to read the direct replies that would have been tweeted, Stip. ¶ 61.
34

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 35 of 75
Defendants further contend that the Knight Institute has suffered a noncognizable generalized grievance, but nothing in the record suggests that the citizenry writ large desires to read the individual plaintiffs’ tweets engaging with the President’s tweets as the Knight Institute does.15 Even assuming a large number of other individuals share such a desire, that numerosity would not render the Knight Institute’s injury a generalized grievance that cannot support Article III standing. See, e.g., Spokeo, 136 S. Ct. at 1548 n.7; Massachusetts v. EPA, 549 U.S. at 526 n.24.
And even assuming arguendo that the Knight Institute’s assertion of its desire to view the individual plaintiffs’ tweets standing alone is insufficient to support standing, see, e.g., Defs. of Wildlife, 504 U.S. at 562-64; Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 886-89 (1990), any insufficiency is remedied by the fact that the Knight Institute did and does follow one of the individual plaintiffs, Stip. ¶ 62. Defendants correctly note that the Knight Institute did not follow on Twitter six of the seven individual plaintiffs’ accounts (as of one month after this lawsuit was filed), Stip. ¶ 62, but the Knight Institute’s following of one of the individual plaintiffs is significant and represents “dispositively more than the mere ‘general averments’ and ‘conclusory allegations’ found inadequate in National Wildlife Federation,” Laidlaw, 528 U.S. at 184 (citing Nat’l Wildlife Fed’n,
15 We would in fact be highly skeptical of any such contention.
35

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 36 of 75
497 U.S. at 888), and comparable cases. We therefore conclude that the Knight Institute has established an injury-in-fact necessary to support its organizational standing.
The causation and redressability elements of standing are also satisfied as to the Knight Institute. The causation analysis as to the Knight Institute largely follows that applicable to the individual plaintiffs: the Knight Institute’s injury -- the inability to read the individual plaintiffs’ direct replies to the President’s tweets -- is a direct consequence of the individual plaintiffs being unable to reply directly to the President’s tweets, which is, in turn, a direct consequence of the individual plaintiffs having been blocked. Stip. ¶¶ 28, 54, 59, 61. The Knight Institute’s injuries are similarly redressable -- if the individual plaintiffs were unblocked, they would be able to tweet direct replies to tweets sent by @realDonaldTrump and the Knight Institute would again be able to fulfill its desire to read those direct replies. While the individual plaintiffs would need to choose to reply in order for the Knight Institute to read a reply, certain individual plaintiffs’ attempts to circumvent blocking’s limitation on direct replies, Stip. ¶ 59, and the individual plaintiffs’ identification of the burdens posed by blocking as prompting their reduced engagement, Stip. ¶ 60, strongly suggests that at least some of the individual plaintiffs are likely to reply
36

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 37 of 75
if they were to have the capacity to do so. Accordingly, we conclude that the Knight Institute also has standing. III. First Amendment
Concluding that the individual plaintiffs and the Knight Institute both have standing to sue Scavino and the President, we turn to the First Amendment’s application to the distinctly twentyfirst century medium of Twitter. The primary point of dispute between the parties is whether a public official’s blocking of the individual plaintiffs on Twitter implicates a forum for First Amendment purposes. Our analysis of this question proceeds in several steps.
“[W]e must first decide whether” the speech in which the individual plaintiffs seek to engage “is speech protected by the First Amendment.” Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797 (1985); see also Int’l Soc’y for Krishna Consciousness, Inc. v. Lee (ISKCON), 505 U.S. 672, 677 (1992). A conclusion that individual plaintiffs’ speech is protected speech, however, “merely begins our inquiry.” Cornelius, 473 U.S. at 799. We must then assess whether the putative forum is susceptible to forum analysis at all, see Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 677 (1998) (“Other government properties are . . . not fora at all.”); see also Pleasant Grove City, 555 U.S. at 480 (identifying when “forum analysis is out of place”), identifying with particularity the putative forum at issue, see Cornelius, 473
37

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 38 of 75
U.S. at 800. If so, we must then determine its classification. Id. (“Having defined the relevant forum, we must then determine whether it is public or nonpublic in nature.”).16 To the extent we conclude that a First Amendment forum is implicated, we consider whether “the extent to which the Government [has] control[led] access” is consistent with the class of forum identified. Id.
A. Protected Speech Our inquiry into whether the speech at issue is protected by the First Amendment is straightforward. The individual plaintiffs seek to engage in political speech, Stip. ¶¶ 46-52, and such “speech on matters of public concern” “fall within the core of First Amendment protection,” Engquist v. Ore. Dep’t of Agric., 553 U.S. 591, 600 (2008). Indeed, there is no suggestion that the speech in which the individual plaintiffs engaged and seek to engage fall within the “well-defined and narrowly limited classes of speech,” such as obscenity, defamation, fraud, incitement, and speech integral to criminal conduct, “the prevention and punishment of which have never been thought to raise any Constitutional problem.” Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 791 (2011) (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942)); see also United States v. Stevens, 559 U.S.
16 That is, the question of whether a space is susceptible to forum analysis is analytically distinct from the question, assuming that forum analysis applies, of what type of forum (traditional public, designated public, or non-public) the space is.
38

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 39 of 75
460, 468 (2010). We readily conclude the speech in which individual plaintiffs seek to engage is protected speech.
B. Applicability of Forum Doctrine We turn next to the applicability of forum doctrine. As a threshold matter, for a space to be susceptible to forum analysis, it must be owned or controlled by the government. See, e.g., Cornelius, 473 U.S. at 801 (“[A] speaker must seek access to public property or to private property dedicated to public use to evoke First Amendment concerns.”). Further, the application of forum doctrine must be consistent with the purpose, structure, and intended use of the space. See, e.g., Pleasant Grove City, 555 U.S. at 480 (“[W]here the application of forum analysis would lead almost inexorably to closing of the forum, it is obvious that forum analysis is out of place.”). The Supreme Court has instructed that in determining whether these requirements are satisfied (i.e., whether forum analysis can be appropriately applied), we should identify the putative forum by “focus[ing] on the access sought by the speaker.” Cornelius, 473 U.S. at 801; see Lebron v. Nat’l R.R. Passenger Corp. (Amtrak), 69 F.3d 650, 655 (2d Cir. 1995). “When speakers seek general access to public property, the forum encompasses that property.” Cornelius, 473 U.S. at 801. By contrast, “[i]n cases in which limited access is sought, [the Supreme Court’s] cases have taken a more tailored approach to ascertaining the perimeters of a
39

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 40 of 75
forum.” Id. For example, in Cornelius, where plaintiffs sought access to a fundraising drive conducted in the federal workplace, the fundraising drive specifically, rather than the federal workplace generally, constituted the would-be forum. Id. Similarly, in Perry Education Ass’n v. Perry Local Educators’ Ass’n, where the plaintiff sought access to a public school’s internal mail system in order to distribute literature, the mail system rather than the school was the space in question. 460 U.S. 37, 46-47 (1983). And in Lehman v. City of Shaker Heights, where the plaintiff sought access to advertising space on the side of city buses, the advertising space and not the buses constituted the putative forum. 418 U.S. 298, 300-01 (1974). Indeed, this exercise in carefully delineating the putative forum based on the access sought is not an academic one. For instance, a public park is susceptible to forum analysis when “used for purposes of assembly, communicating thoughts between citizens, and discussing public questions,” Perry Educ. Ass’n, 460 U.S. at 45 (quoting Hague v. Comm. for Indus. Org., 307 U.S. 496, 515 (1939) (opinion of Roberts, J.)), but the same public park is not when “the installation of permanent monuments” is concerned, Pleasant Grove City, 555 U.S. at 480.
We can therefore reject, at the outset, any contention that the @realDonaldTrump account as a whole is the would-be forum to be analyzed. Plaintiffs do not seek access to the account as a
40

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 41 of 75
whole -- they do not desire the ability to send tweets as the President, the ability to receive notifications that the President would receive, or the ability to decide who the President follows on Twitter. Because the access they seek is far narrower, we consider whether forum doctrine can be appropriately applied to several aspects of the @realDonaldTrump account rather than the account as a whole: the content of the tweets sent, the timeline comprised of those tweets, the comment threads initiated by each of those tweets, and the “interactive space” associated with each tweet in which other users may directly interact with the content of the tweets by, for example, replying to, retweeting, or liking the tweet.
1. Government Ownership or Control First, to potentially qualify as a forum, the space in question must be owned or controlled by the government. While the Supreme Court has frequently referred to “government-owned property,” e.g., Pleasant Grove City, 555 U.S. at 478; see also ISKCON, 505 U.S. at 678 (referring to property that the government “owns and controls”), its precedents have also made clear that a space may be a forum based on government control even absent legal ownership, see, e.g., Christian Legal Soc’y Chapter of the Univ. of Cal. v. Martinez, 561 U.S. 661, 679 (2010) (“[T]his Court has employed forum analysis to determine when a governmental entity, in regulating property in its charge, may place limitations on
41

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 42 of 75
speech.” (emphasis added)); Cornelius, 473 U.S. at 801 (“[A] speaker must seek access to public property or to private property dedicated to public use to evoke First Amendment concerns.” (emphasis added)); Perry Educ. Ass’n, 460 U.S. at 46 (“[T]he ‘First Amendment does not guarantee access to property simply because it is owned or controlled by the government.’” (emphasis added) (quoting U.S. Postal Serv. v. Council of Greenburgh Civic Ass’ns, 453 U.S. 114, 130 (1981))); see also Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 555 (1975) (concluding that a “privately owned . . . theater under long-term lease to the city,” id. at 547, was a public forum, id. at 555). This requirement of governmental control, rather than complete governmental ownership, is not only consistent with forum analysis’s focus on “the extent to which the Government can control access” to the space and whether that control comports with the First Amendment, Cornelius, 473 U.S. at 800, but also better reflects that a space can be “a forum more in a metaphysical than in a spatial or geographic sense,” Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 830 (1995), and may “lack[] a physical situs,” Cornelius, 473 U.S. at 801, in which case traditional conceptions of “ownership” may fit less well.
Here, the government-control prong of the analysis is met. Though Twitter is a private (though publicly traded) company that is not government-owned, the President and Scavino nonetheless
42

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 43 of 75
exercise control over various aspects of the @realDonaldTrump account: they control the content of the tweets that are sent from the account and they hold the ability to prevent, through blocking, other Twitter users, including the individual plaintiffs here, from accessing the @realDonaldTrump timeline (while logged into the blocked account) and from participating in the interactive space associated with the tweets sent by the @realDonaldTrump account, Stip. ¶¶ 12, 28-32, 39, 54. Though Twitter also maintains control over the @realDonaldTrump account (and all other Twitter accounts), we nonetheless conclude that the extent to which the President and Scavino can, and do, exercise control over aspects of the @realDonaldTrump account are sufficient to establish the government-control element as to the content of the tweets sent by the @realDonaldTrump account, the timeline compiling those tweets, and the interactive space associated with each of those tweets. While their control does not extend to the content of a retweet or reply when made -- “[n]o other Twitter user can alter the content of any retweet or reply, either before or after it is posted” and a user “cannot prescreen tweets, replies, likes, or mentions that reference their tweets or accounts,” Stip. ¶ 26 -- it nonetheless extends to controlling who has the power to retweet or reply in the first instance.
The President and Scavino’s control over the @realDonaldTrump account is also governmental. The record establishes (1) that the
43

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 44 of 75
@realDonaldTrump account is presented as being “registered to Donald J. Trump, ‘45th President of the United States of America, Washington, D.C.,’” Stip. ¶ 35; (2) “that the President’s tweets from @realDonaldTrump . . . are official records that must be preserved under the Presidential Records Act,” Stip. ¶ 40; see 44 U.S.C. § 2202 (directing the retention of “Presidential records”; id. § 2201(2) (defining “Presidential records” as those created “in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President”); and (3) that the @realDonaldTrump account has been used in the course of the appointment of officers (including cabinet secretaries), the removal of officers, and the conduct of foreign policy, Stip. ¶ 38 -- all of which are squarely executive functions, see U.S. Const. art. II, § 2, cl. 2 (appointments); Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 492-93 (2010) (relating the President’s removal power to “his responsibility to take care that the laws be faithfully executed” under Article II, section 3, clause 5 of the Constitution (emphasis omitted)); Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2090 (2015) (“The President does have a unique role in communicating with foreign governments . . . .”). That is, the President presents the @realDonaldTrump account as being a presidential account as opposed to a personal account and, more importantly, uses the
44

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 45 of 75
account to take actions that can be taken only by the President as President. Accordingly, we conclude that the control that the President and Scavino exercise over the account and certain of its features is governmental in nature.
Defendants contend that the governmental control-or-ownership prong is not met because we must also analyze the specific action in question -- blocking -- under the “under color of state law” precedents developed in the context of actions against state officials under 42 U.S.C. § 1983. In that context, the standards for whether an action was taken “under color of state law” and for whether an action constitutes “state action” are identical, see Lugar v. Edmondson Oil Co., 457 U.S. 922, 935 (1982), and an official takes action under color of state law when he “exercise[s] power ‘possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.’” West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S. 299, 326 (1941)). Invoking this standard, defendants contend that the act of blocking is not state action triggering First Amendment scrutiny because blocking is a functionality made available to every Twitter user, Stip. ¶ 28, and is therefore not a power possessed by virtue of state law.
While the Constitution applies only to the government and not private individuals, the requirement of state action in the forum context is not usually analyzed separately (either in general or
45

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 46 of 75
under the West standard specifically) from the government controlor-ownership requirement. As the Second Circuit has recently explained, “[b]ecause facilities or locations deemed to be public forums are usually operated by governments, determining that a particular facility or location is a public forum usually suffices to render the challenged action taken there to be state action subject to First Amendment limitations.” Halleck v. Manhattan Cmty. Access Corp., 882 F.3d 300, 306–07 (2d Cir. 2018) (citing Widmar v. Vincent, 454 U.S. 263, 265-68 (1981), and City of Madison, Joint Sch. Dist. No. 8 v. Wisc. Emp’t Relations Comm’n, 429 U.S. 167, 169-76 (1976)). While further analysis may be necessary when the party exercising control over the forum is a nongovernmental entity, see, e.g., id. at 307, in which case consideration of the factors set forth by the Supreme Court in Brentwood Academy v. Tennessee Secondary School Athletic Ass’n, 531 U.S. 288, 295-96 (2001), may be appropriate, the Brentwood factors are a poor fit for the facts of this case: the parties exercising control here are a public official, the President, and his subordinate, Scavino, acting in his official capacity.17
17 In Brentwood, the Supreme Court considered whether “a not-for-profit membership corporation organized to regulate interscholastic sport among the public and private high schools” engaged in state action when it enforced its regulations against a member school. 531 U.S. at 291. The Court held that “state action may be found if, though only if, there is such a ‘close nexus between the State and the challenged action’ that seemingly private behavior ‘may be fairly treated as that of the State itself,’” but acknowledged that “[w]hat is fairly attributable is a matter of normative judgment, and the criteria lack rigid simplicity.” Id. at 295 (quoting Jackson v. Metro. Edison
46

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 47 of 75
Further, this argument, which focuses on the act of exclusion divorced from the context of the space from which a person is being excluded, proves too much and is difficult to reconcile with the Supreme Court’s public forum precedents. Defendants correctly argue that blocking is a capability held by every Twitter user, Stip. ¶ 28, but the power to exclude is also one afforded generally to every property owner. When a government acts to “legally preserve the property under its control for the use to which it is dedicated,” it behaves “like the private owner of property.” Rosenberger, 515 U.S. at 829; Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 390 (1993); see also, e.g., Greer v. Spock, 424 U.S. 828, 836 (“The State, no less than a private owner of property, has the power to preserve the property under its control . . . .”). Indeed, when the government exercises its “right to exclude others from entering and using [its] property,” Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 539 (2005), it is deploying “one of the most essential sticks in the bundle of rights that are commonly characterized as property,” Dolan v. City of Tigard, 512 U.S. 374, 384 (1994). The right to exclude is “perhaps the most fundamental of all property interests,” Lingle, 544 U.S.
Co., 419 U.S. 345, 351 (1976)). After analyzing a number of factors, including (1) whether the private actor was acting pursuant to the state’s coercive power, (2) whether the private actor was undertaking a public function, and (3) whether the private actor received significant encouragement from the state or whether its functions were entwined with governmental policies, the Court concluded that state action was present. See id. at 295-96; see also Sybalski v. Indep. Grp. Home Living Program, Inc., 546 F.3d 255, 257 (2d Cir. 2008) (per curiam) (analyzing Brentwood).
47

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 48 of 75
at 539, and it is one shared by the government and private property owners alike. The context of the property from which the government is excluding, therefore, must factor into the analysis. No one can seriously contend that a public official’s blocking of a constituent from her purely personal Twitter account -- one that she does not impress with the trappings of her office and does not use to exercise the authority of her position -- would implicate forum analysis, but those are hardly the facts of this case.
For the same reason, defendants’ reliance on the President’s establishment of the account in 2009, Stip. ¶ 32 -- well before his election and inauguration as President -- is unpersuasive. To the extent forum analysis applies, “[t]he past history of characterization of a forum may well be relevant; but that does not mean a present characterization about a forum may be disregarded.” Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65, 77 (1st Cir. 2004); see Make the Rd. by Walking, Inc. v. Turner, 378 F.3d 133, 143 (2d Cir. 2004) (recognizing that certain First Amendment restrictions apply “so long as a forum remains public”); cf. Bronx Household of Faith v. Bd. of Educ., 650 F.3d 30, 41 (2d Cir. 2011) (reasoning that “the nature of the site changes” depending on how the site is being used). The Supreme Court has expressly held that “a state is not required to indefinitely retain the open character of the facility,” e.g., Perry Educ. Ass’n, 460 U.S. at 46, but changes need not be one-directional. Indeed, the
48

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 49 of 75
entire concept of a designated public forum rests on the premise that the nature of a (previously closed) space has been changed. See, e.g., Cornelius, 473 U.S. at 802.
To take two examples, if a facility initially developed by the government as a military base -- plainly not a public forum under Greer, 424 U.S. at 838 -- is subsequently decommissioned and repurposed into a public park,18 the present use of the facility as a park would bear much more heavily on the forum analysis than its historical origins as a military installation. Similarly, if a privately constructed airport were subsequently taken over by a public agency, forum analysis would focus on its current use as a public airport rather than its prior use as a private one. Cf. ISKCON, 505 U.S. at 681 (“The practices of privately held transportation centers do not bear on the government’s regulatory authority over a publicly owned airport.”).
Here, the President and Scavino’s present use of the @realDonaldTrump account weighs far more heavily in the analysis than the origin of the account as the creation of private citizen Donald Trump. That latter fact cannot be given the dispositive weight that defendants would ascribe to it. Rather, because the President and Scavino use the @realDonaldTrump account for
18 Cf. Colo. Dep’t of Pub. Health & Env’t v. United States, No. 17-cv2223, 2018 WL 1152264, at *2 (D. Colo. Mar. 5, 2008) (describing the creation of a national wildlife refuge from portions of the Rocky Mountain Arsenal).
49

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 50 of 75
governmental functions, the control they exercise over it is accordingly governmental in nature.
That control, however, does not extend to the comment thread initiated by a tweet sent by the @realDonaldTrump account. The comment thread -- consisting of the initial tweet, direct replies to that tweet, and second-order (and higher-order) replies to those replies -- therefore cannot be a putative forum. While the President and Scavino can control the interactive space by limiting who may directly reply or retweet a tweet initially sent by the @realDonaldTrump account, they lack comparable control over the subsequent dialogue in the comment thread. As plaintiffs acknowledge, even the individual plaintiffs who have been blocked “can view replies to @realDonaldTrump tweets, and can post replies to those replies, while logged in to the blocked accounts,” and that these “[r]eplies-to-replies appear in the comment threads that originate with @realDonaldTrump tweets.” Stip. ¶ 57. Because a Twitter user lacks control over the comment thread beyond the control exercised over first-order replies through blocking, the comment threads -- as distinguished from the content of tweets sent by @realDonaldTrump, the @realDonaldTrump timeline, and the interactive space associated with each tweet -- do not meet the threshold criterion for being a forum.
50

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 51 of 75
2. Purpose, Structure, and Intended Use We next assess whether application of forum analysis is consistent with the purpose, structure, and intended use of the three aspects of the @realDonaldTrump account that we have found to satisfy the government control-or-ownership criterion: specifically, the content of tweets, the timeline comprised of the account’s tweets, and the interactive space of each tweet. Generally, “[t]he forum doctrine has been applied in situations in which government-owned property or a government program was capable of accommodating a large number of public speakers without defeating the essential function of the land or the program.” Pleasant Grove City, 555 U.S. at 478. By contrast, forum analysis is not appropriately applied when “the government has broad discretion to make content-based judgments in deciding what private speech to make available to the public.” United States v. Am. Library Ass’n, 539 U.S. 194, 204 (2003) (plurality opinion). For example, the Supreme Court has held that “[w]hen a public broadcaster exercises editorial discretion in the selection and presentation of its programming,” its decisions are not subject to forum analysis. Forbes, 523 U.S. at 674. Forum analysis was inappropriate, the Court reasoned, because “[c]laims of access under [the Court’s] public forum precedents could obstruct the legitimate purposes of television broadcasters.” Id. “[B]road rights of access for outside speakers would be antithetical, as a
51

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 52 of 75
general rule, to the discretion that stations and their editorial staff must exercise to fulfill their journalistic purpose and statutory obligations.” Id. at 673. Similarly, the Supreme Court has declined to apply forum analysis to a grant program operated by the National Endowment for the Arts (NEA), reasoning that “[t]he NEA’s mandate is to make esthetic judgments” and the application of an “inherently content-based ‘excellence’ threshold for NEA support.” Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 586 (1998). And applying Forbes and Finley, a four-Justice plurality of the Supreme Court concluded that the internet access provided by public libraries was not susceptible to forum analysis, as forum analysis was “incompatible with the discretion that public libraries must have to fulfill their traditional missions,” which involve the “exercise of judgment in selecting the material [the library] provides to its patrons.” Am. Library Ass’n, 539 U.S. at 205 (plurality opinion).19 Ultimately, “where the application of forum analysis would lead almost inexorably to closing of the forum, it is obvious that forum analysis is out of place.” Pleasant Grove City, 555 U.S. at 480.
Government speech is one category of speech that falls outside the domain of forum analysis: when the government “is speaking on its own behalf, the First Amendment strictures that attend the
19 Additionally, Justice Breyer agreed that forum analysis was not applicable to the provision of internet access in public libraries. See Am. Library Ass’n, 539 U.S. at 215-16 (Breyer, J., concurring in the judgment).
52

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 53 of 75
various types of government-established forums do not apply.” Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2250 (2015). “The Free Speech Clause restricts [only] government regulation of private speech; it does not regulate government speech.” Pleasant Grove City, 555 U.S. at 467.
However, “[t]here may be situations in which it is difficult to tell whether a government entity is speaking on its own behalf or is providing a forum for private speech.” Id. at 470. Private involvement in the formulation of the speech in question does not preclude the conclusion that it is government speech. For example, Pleasant Grove City concluded that monuments that were privately financed but subsequently accepted by a municipal government and displayed on public park land was government speech, see id. at 470-71, and Walker held that specialty license plate designs proposed by private groups but approved and issued by a state department of motor vehicles was also government speech, see 135 S. Ct. at 2248-50. Conversely, “speech that is otherwise private does not become speech of the government merely because the government provides a forum for the speech or in some way allows or facilitates it.” Wandering Dago, Inc. v. Destito, 879 F.3d 20, 34 (2d Cir. 2018) (citing Cornelius, 473 U.S. at 811-13).
In assessing whether speech constitutes government speech as opposed to private speech, the Supreme Court has considered at least three factors: whether government has historically used the
53

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 54 of 75
speech in question “to convey state messages,” whether that speech is “often closely identified in the public mind” with the government, and the extent to which government “maintain[s] direct control over the messages conveyed,” with Walker’s application of these factors “likely mark[ing] the outer bounds of the governmentspeech doctrine.” Matal v. Tam, 137 S. Ct. 1744, 1760 (2017) (quoting Walker, 135 S. Ct. at 2246-49); see also Wandering Dago, 879 F.3d at 34 (distilling the same three factors from Walker).
Based on the government speech doctrine, we reject out of hand any contention that the content of the President’s tweets are susceptible to forum analysis. It is not so susceptible because the content is government speech: the record establishes that the President, sometimes “[w]ith the assistance of Mr. Scavino,” uses the content of his tweets “to announce, describe, and defend his policies; to promote his Administration’s legislative agenda; to announce official decisions; to engage with foreign political leaders; to publicize state visits; to challenge media organizations whose coverage of his Administration he believes to be unfair; and for other statements, including on occasion statements unrelated to official government business.” Stip. ¶ 38. Indeed, the content of the tweets sent by @realDonaldTrump are solely the speech of the President or of other government
54

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 55 of 75
officials. Stip. ¶ 39.20 For the same reason, the account’s timeline, which “displays all tweets generated by the [account]” is not susceptible to forum analysis: the timeline merely aggregates the content of all of the account’s tweets, Stip. ¶ 15, all of which is government speech.
The same cannot be said, however, of the interactive space for replies and retweets created by each tweet sent by the @realDonaldTrump account. At minimum, as to replies, they are most directly associated with the replying user rather than the sender of the tweet being replied to: a reply tweet appears with the picture, name, and handle of the replying user, Stip. ¶¶ 23, 57, and appears most prominently in the timeline of the replying user, Stip. ¶ 22. Replying tweets are “controlled by the user who generates them,” and “[n]o other Twitter user can alter the content of any . . . reply, either before or after it is posted.” Stip. ¶ 26. Given the prominence with which the account information of the replying user is displayed in the replying tweet, the reply is unlikely to be “closely identified in the public mind” with the sender, even when the sender of the tweet being replied to is a
20 Whether the content of retweets initially sent by other users constitutes government speech presents a somewhat closer question. The content of a retweet of a tweet sent by another governmental account, Stip. ¶ 37, is still squarely government speech. The content of the retweet of a tweet sent by a private non-governmental account, Stip. ¶ 39, would still likely be government speech. Despite the private genesis of the content, the act of retweeting by @realDonaldTrump resembles the government’s acceptance of the monuments in Pleasant Grove and the government’s approval of the license plate designs in Walker, which were sufficient to render the privately originated speech governmental in nature.
55

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 56 of 75
governmental one. Matal, 137 S. Ct. at 1760; Walker, 135 S. Ct. at 2248. And, far from “maintain[ing] direct control over the messages conveyed” in a user’s replies to the President’s tweets (assuming the user retains the ability to reply, i.e., the user has not been blocked), the government maintains no control over the content of the reply. Matal, 137 S. Ct. at 1760; Walker, 135 S. Ct. at 2249. Taken together, these factors support the conclusion that replies to the President’s tweets remain the private speech of the replying user. The association that a reply has with a governmental sender of the tweet being replied to -the indication that the replying tweet is a reply and its appearance in the comment thread accessed from the timeline of the governmental sender -- is not sufficient to render the reply government speech.21
Nor is the interactive space of each tweet, as distinguished from the content of the tweet, constrained by the notions of inherent selectivity and scarcity that the Supreme Court held to counsel against the application of forum doctrine in Finley and Forbes and in Pleasant Grove City, respectively. Generally, no selection is involved in determining who has the ability to
21 Retweets again present a closer question. A retweet appears “in the same form as it did on the original [sender]’s timeline,” with the name, picture, and handle of the original sender rather than the retweeter, and with an additional “notation indicating that the post was retweeted” above the tweet in smaller font. Stip. ¶ 21. Nonetheless, in the same way the President’s retweeting of a tweet sent by a private individual likely renders the President’s retweet government speech, a private individual’s retweet of a tweet sent by the President is likely private speech rather than government speech.
56

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 57 of 75
interact directly with the President’s tweets: the @realDonaldTrump account is “generally accessible to the public at large without regard to political affiliation or any other limiting criteria,” such that any Twitter user who has not been blocked may so engage. Stip. ¶ 36. Indeed, just as “a park can accommodate many speakers and, over time, many parades and demonstrations”; “[t]he Combined Federal Campaign permits hundreds of groups to solicit donations from federal employees” as in Cornelius; “[a] public university’s student activity fund can provide money for many campus activities” as in Rosenberger; “a public university’s buildings may offer meeting space for hundreds of student groups” as in Widmar; and “[a] school system’s internal mail facilities can support the transmission of many messages to and from teachers and school administrators” as in Perry Education Ass’n, Pleasant Grove City, 555 U.S. at 478, the interactive space of a tweet can accommodate an unlimited number of replies and retweets. Indeed, the record establishes that tweets sent by the @realDonaldTrump account regularly attract tens of thousands, if not hundreds of thousands, of replies and retweets, Stip. ¶¶ 41-43, and nothing suggests that the “application of forum analysis” to the interactive space associated with a tweet “would lead almost inexorably to closing of the forum,” id. at 480. Rather, the interactive space is “capable of accommodating a large number of public speakers without defeating [its] essential function,” id.
57

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 58 of 75
at 478; and indeed, the essential function of a given tweet’s interactive space is to allow private speakers to engage with the content of the tweet, Stip. ¶ 13, which supports the application of forum analysis.
Ultimately, the delineation of a tweet’s interactive space as the putative forum is consistent with the Supreme Court’s directive to “focus[] on the access sought by the speaker.” Cornelius, 473 U.S. at 801. When a user is blocked, the most significant impediment is the ability to directly interact with a tweet sent by the blocking user. While a blocked user is also limited in that the user may not view the content of the blocking user’s tweets or view the blocking user’s timeline, those limitations may be circumvented entirely by “using an internet browser or other application that is not logged in to Twitter, or that is logged in to a Twitter account that is not blocked.” Stip. ¶ 55. By contrast, the ability to interact directly cannot be completely reestablished, Stip. ¶¶ 54, 58-59, and that ability -- i.e., access to the interactive space -- is therefore best described as the access that the individual plaintiffs seek.
In sum, we conclude that the interactive space associated with each of the President’s tweets is not government speech and is properly analyzed under the Supreme Court’s forum precedents.
58

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 59 of 75
C. Classification Having concluded that forum analysis is appropriately applied to the interactive space associated with a tweet, we turn to the question of classification. “The Supreme Court has recognized three types of fora across a spectrum of constitutional protection for expressive activity.” Make the Rd., 378 F.3d at 142. First, traditional public fora are “places which by long tradition or by government fiat have been devoted to assembly and debate.” Perry Educ. Ass’n, 460 U.S. at 45. These spaces, like streets and parks, “have immemorially been held in trust for the use of the public, and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Id. (quoting Hague, 307 U.S. at 515 (opinion of Roberts, J.)). Absent a well-established history of dedication to public use, however, a forum cannot be a traditional public forum. The Supreme Court has “rejected the view that traditional public forum status extends beyond its historic confines.” Forbes, 523 U.S. at 678 (citing ISKCON, 505 U.S. at 680-81). “A second category consists of public property which the state has opened for use by the public as a place for expressive activity.” Perry Educ. Ass’n, 460 U.S. at 45. “To create a forum of this type, the government must intend to make the property ‘generally available,’ to a class of speakers.” Forbes, 523 U.S. at 678 (citations omitted) (quoting Widmar, 454 U.S. at 264). “The
59

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 60 of 75
government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse,” and we “look[] to the policy and practice of the government to ascertain whether it intended to designate a place not traditionally open to assembly and debate as a public forum.” Cornelius, 473 U.S. at 802. Finally, a space that is susceptible to forum analysis but is “not by tradition or designation a forum for public communication,” Perry Educ. Ass’n, 460 U.S. at 46, is termed a “nonpublic forum,” Forbes, 523 U.S. at 677.
Applying this three-part classification framework to the interactive space, we can first conclude that the interactive space of a tweet sent by @realDonaldTrump is not a traditional public forum. There is no historical practice of the interactive space of a tweet being used for public speech and debate since time immemorial, for there is simply no extended historical practice as to the medium of Twitter. While the Supreme Court has referenced the “vast democratic forums of the Internet,” Reno v. ACLU, 521 U.S. 844, 868 (1997), has described the internet (including social media platforms such as Twitter) as one of “the most important places (in a spatial sense) for the exchange of views,” Packingham v. North Carolina, 137 S. Ct. 1730, 1735 (2017), and has analogized the internet to the “essential venues for public gatherings” of
60

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 61 of 75

streets and parks, id., the lack of historical practice is

dispositive, see Forbes, 523 U.S. at 678.

Accordingly, we consider whether the interactive space is a

designated public forum, with “governmental intent” serving as

“the touchstone for determining whether a public forum has been

created.” Gen. Media Commc’ns, Inc. v. Cohen, 131 F.3d 273, 279

(2d Cir. 1997). “Intent is not merely a matter of stated purpose.

Indeed, it must be inferred from a number of objective factors,

including: [the government’s] policy and past practice, as well as

the nature of the property and its compatibility with expressive

activity.” Paulsen v. County of Nassau, 925 F.2d 65, 69 (2d Cir.

1991) (citing Cornelius, 473 U.S. at 802-03).

Here, these factors strongly support the conclusion that the

interactive space is a designated public forum.

“The

@realDonaldTrump account is generally accessible to the public at

large without regard to political affiliation or any other limiting

criteria,” “any member of the public can view his tweets,” and

“anyone [with a Twitter account] who wants to follow the account

[on Twitter] can do so,” unless that person has been blocked.

Stip. ¶ 36. Similarly, anyone with a Twitter account who has not

been blocked may participate in the interactive space by replying

or retweeting the President’s tweets. Stip. ¶¶ 21, 22, 28, 36.

Further, the account -- including all of its constituent components

-- has been held out by Scavino as a means through which the

61

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 62 of 75
President “communicates directly with you, the American people!” Stip. ¶ 37 (alterations incorporated). And finally, there can be no serious suggestion that the interactive space is incompatible with expressive activity: rather, Twitter as a platform is designed to allow users “to interact with other Twitter users in relation to [their tweets],” Stip. ¶ 13, and users can use Twitter to “petition their elected representatives and otherwise engage with them in a direct manner,” Packingham, 137 S. Ct. at 1735. The interactivity of Twitter is one of its defining characteristics, and indeed, the interactive space of the President’s tweets accommodates a substantial body of expressive activity. Stip. ¶¶ 41-43. Taking these factors together, we conclude that the interactive space of a tweet from the @realDonaldTrump account constitutes a designated public forum.
D. Viewpoint Discrimination “[T]he extent to which the Government can control access depends on the nature of the relevant forum,” Cornelius, 473 U.S. at 800, so we next consider whether the blocking of the individual plaintiffs is permissible in a designated public forum. “Regulation of [a designated public forum] is subject to the same limitations as that governing a traditional public forum” -restriction are permissible “only if they are narrowly drawn to achieve a compelling state interest.” ISKCON, 505 U.S. at 67879; see also Cornelius, 473 U.S. at 800. Regardless of the
62

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 63 of 75
specific nature of the forum, however, “[v]iewpoint discrimination . . . is presumed impermissible when directed against speech otherwise within the forum’s limitations.” Rosenberger, 515 U.S. at 830; see also Matal, 137 S. Ct. at 1763 (“When government creates such a forum, in either a literal or ‘metaphysical’ sense, some content- and speaker-based restrictions may be allowed. However, even in such cases, what we have termed ‘viewpoint discrimination’ is forbidden.” (citations omitted) (quoting Rosenberger, 515 U.S. at 830-31)).
Here, the individual plaintiffs were indisputably blocked as a result of viewpoint discrimination. The record establishes that “[s]hortly after the Individual Plaintiffs posted the tweets . . . in which they criticized the President or his policies, the President blocked each of the Individual Plaintiffs,” Stip. ¶ 53, and defendants do “not contest Plaintiffs’ allegation that the Individual Plaintiffs were blocked from the President’s Twitter account because the Individual Plaintiffs posted tweets that criticized the President or his policies.” Stip. at 1. The continued exclusion of the individual plaintiffs based on viewpoint is, therefore, impermissible under the First Amendment.22
22 Even if the interactive space associated with the content of a tweet constituted a nonpublic forum, the exclusion of the individual plaintiffs would not withstand First Amendment scrutiny. “Control over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral.” Cornelius, 473 U.S. at 806. The blocking of the individual plaintiffs, which resulted from their “tweets that criticized the
63

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 64 of 75
Defendants contend that the blocking of the individual plaintiffs is permissible because the President retains a personal First Amendment interest in choosing the people with whom he associates and retains the right not to engage with (i.e., the right to ignore) the individual plaintiffs. Further, they argue, the individual plaintiffs have no right to be heard by a government audience and no right to have their views amplified by the government. While those propositions are accurate as statements of law, they nonetheless do not render the blocking of the individual plaintiffs constitutionally permissible.
To be clear, a public official does not lose his First Amendment rights upon taking office. Cf. Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). “The interest of the public in hearing all sides of a public issue,” an interest that the First Amendment seeks to protect, “is hardly advanced by extending more protection to citizen-critics than to [public officials].” Bond v. Floyd, 385 U.S. 116, 136 (1966). That is, no set of plaintiffs could credibly argue that they “have a constitutional right to prevent [government officials] from exercising their own rights” under the First Amendment. X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 70 (2d Cir. 1999). Further, “[n]othing in the First Amendment or in [the Supreme] Court’s case law interpreting it suggests that the rights
President or his policies,” Stip. at 1, is not viewpoint-neutral, and is therefore impermissible “regardless of how the property is categorized under forum doctrine,” Wandering Dago, 879 F.3d at 39.
64

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 65 of 75
to speak, associate, and petition require government policymakers to listen or respond to individuals’ communications on public issues.” Minn. State Bd. for Cmty. Colls. v. Knight, 465 U.S. 271, 285 (1984). No First Amendment harm arises when a government’s “challenged conduct is simply to ignore the [speaker],” as the Supreme Court has affirmed that “[t]hat it is free to do.” Smith v. Ark. State Highway Emps., Local 1315, 441 U.S. 463, 466 (1979) (per curiam). Stated otherwise, “[a] person’s right to speak is not infringed when government simply ignores that person while listening to others,” or when the government “amplifies” the voice of one speaker over those of others. Minn. State Bd., 465 U.S. at 288. Nonetheless, when the government goes beyond merely amplifying certain speakers’ voices and not engaging with others, and actively restricts “the right of an individual to speak freely [and] to advocate ideas,” it treads into territory proscribed by the First Amendment. Id. at 286 (quoting Smith, 441 U.S. at 464).
Consideration of Twitter’s two features for limiting interaction between users -- muting and blocking -- is useful in addressing the potentially conflicting constitutional prerogatives of the government as listener on the one hand and of speakers on the other, as muting and blocking differ in relevant ways. As Twitter explains, “[m]ut[ing] is a feature that allows [a user] to remove an account’s Tweets from [the user’s] timeline without
65

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 66 of 75
unfollowing or blocking that account.” How to Mute. For muted accounts that the muting account does not follow on Twitter, “[r]eplies and mentions will not appear” in the muting account’s notifications, nor will mentions by the muted account. Id. That is, muting allows a user to ignore an account with which the user does not wish to engage. The muted account may still attempt to engage with the muting account -- it may still reply to tweets sent by the muting account, among other capabilities -- but the muting account generally will not see these replies.23 Critically, however, the muted account may still reply directly to the muting account, even if that reply is ultimately ignored.
Blocking, by contrast, goes further. The blocking user “will not see any tweets posted by the blocked user” just as a muting user would not see tweets posted by a muted user, but whereas muting preserves the muted account’s ability to reply to a tweet sent by the muting account, blocking precludes the blocked user from “see[ing] or reply[ing] to the blocking user’s tweets” entirely. Stip. ¶ 28. The elimination of the blocked user’s ability to reply directly is more than the blocking user merely ignoring the blocked user; it is the blocking user limiting the blocked user’s right to speak in a discrete, measurable way.
23 These replies will appear in the muting account’s notifications if the muting account follows the muted account. Of course, the fact that one account follows a second account strongly indicates some desire by the first user to engage with the second user. Stip. ¶ 19.
66

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 67 of 75
Muting equally vindicates the President’s right to ignore certain speakers and to selectively amplify the voices of certain others but -- unlike blocking -- does so without restricting the right of the ignored to speak.
Given these differing consequences of muting and blocking, we find unpersuasive defendants’ contention that a public official’s muting and blocking are equivalent, and equally constitutional, means of choosing not to engage with his constituents. Implicit in this argument is the assumption that a reply to a tweet is directed only at the user who sent the tweet being replied to. Were that so, defendants would be correct in that there is no difference between the inability to send a direct reply (as with blocking) and the inability to have that direct reply heard by the sender of the initial tweet being responded to (as with muting). But this assumption is not supported in the record: a reply is visible to others, Stip. ¶ 22, and may itself be replied to by other users, Stip. ¶¶ 57-58. The audience for a reply extends more broadly than the sender of the tweet being replied to, and blocking restricts the ability of a blocked user to speak to that audience. While the right to speak and the right to be heard may be functionally identical if the speech is directed at only one listener, they are not when there is more than one.
In sum, we conclude that the blocking of the individual plaintiffs as a result of the political views they have expressed
67

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 68 of 75
is impermissible under the First Amendment. While we must recognize, and are sensitive to, the President’s personal First Amendment rights, he cannot exercise those rights in a way that infringes the corresponding First Amendment rights of those who have criticized him.
To be sure, we do not suggest that the impact on the individual plaintiffs (and, by extension, on the Knight Institute) is of the highest magnitude. It is not. But the law is also clear: the First Amendment recognizes, and protects against, even de minimis harms. See Six Star Holdings, LLC v. City of Milwaukee, 821 F.3d 795, 805 (7th Cir. 2016) (rejecting an argument of “de minimis” First Amendment harm and approving an award of nominal damages); Lippoldt v. Cole, 468 F.3d 1204, 1221 (10th Cir. 2006) (similar); KH Outdoor, LLC v. City of Trussville, 465 F.3d 1256, 1261 (11th Cir. 2006) (similar); Risdal v. Halford, 209 F.3d 1071, 1072 (8th Cir. 2000) (similar); cf. Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion) (“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”); N.Y. Progress & Prot. PAC v. Walsh, 733 F.3d 483, 486 (2d Cir. 2013) (same). Thus, even though defendants are entirely correct in contending that the individual plaintiffs may continue to access the content of the President’s tweets, Stip. ¶¶ 55-56, and that they may tweet replies to earlier replies to the President’s tweets, Stip. ¶¶ 57-58, the blocking of
68

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 69 of 75
the individual plaintiffs has the discrete impact of preventing them from interacting directly with the President’s tweets, Stip. ¶ 54, thereby restricting a real, albeit narrow, slice of speech. No more is needed to violate the Constitution. IV. Relief
As plaintiffs seek both injunctive and declaratory relief, we turn, then, to the question of the proper remedy to be afforded here.24 Defendants suggest that we categorically lack authority to enjoin the President, a proposition we do not accept. Stated simply, “separation-of-powers doctrine does not bar every exercise of jurisdiction over the President of the United States.” Nixon v. Fitzgerald, 457 U.S. 731, 753-54 (1982). Rather, “it is . . . settled that the President is subject to judicial process in appropriate circumstances,” Clinton v. Jones, 520 U.S. 681, 703 (1997), and the Supreme Court has expressly rejected the notion of “an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances,” id. at 704 (quoting United States v. Nixon, 418 U.S. 683, 706 (1974)).
24 We do not analyze separately the argument that the blocking of the individual plaintiffs violates their right “to petition the Government for a redress of grievances” under the First Amendment’s Petition Clause. The First Amendment right to speech and petition “are inseparable,” and generally “there is no sound basis for granting greater constitutional protection” to one over the other. McDonald v. Smith, 472 U.S. 479, 485 (1985). “There may arise cases where the special concerns of the Petition Clause would provide a sound basis for a distinct analysis,” Borough of Duryea v. Guarnieri, 564 U.S. 379, 389 (2011), but this case does not present one of them.
69

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 70 of 75
However, “a court, before exercising jurisdiction, must balance the constitutional weight of the interest to be served against the dangers of intrusion on the authority and functions of the Executive Branch.” Nixon v. Fitzgerald, 457 U.S. at 754. A four-Justice plurality of the Supreme Court has explained that while “in general ‘this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties,’” Mississippi v. Johnson, 71 U.S. (4 Wall) 475, 499 (1866), “left open the question whether the President might be subject to a judicial injunction requiring the performance of a purely ‘ministerial’ duty.” Franklin, 505 U.S. at 802–03 (plurality opinion) (quoting Mississippi v. Johnson, 71 U.S. (4 Wall) at 499). Franklin’s acknowledgment of the door left open by Mississippi v. Johnson is consistent with the balancing approach articulated by the Court in Nixon v. Fitzgerald: an injunction directing the performance of a ministerial duty represents a minimal “danger[] of intrusion on the authority and functions of the Executive Branch” as compared to imposition posed by the injunction considered in Mississippi v. Johnson.
In this case, the intrusion on executive prerogative presented by an injunction directing the unblocking of the individual plaintiffs would be minimal. Any such injunction would not direct the President to execute the laws in a certain way, nor would it mandate that he pursue any substantive policy ends. Even
70

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 71 of 75
accepting that the President’s blocking decisions in the first instance are discretionary, the duty to unblock -- following a holding that such blocking was unconstitutional -- would not be, as the President must act in compliance with the Constitution and other laws. Cf. Swan, 100 F.3d at 977 (“[The asserted statutory] duty, if it exists, is ministerial and not discretionary, for the President is bound to abide by the requirements of duly enacted and otherwise constitutional statutes.”). That is, the correction of an unconstitutional act far more closely resembles the performance of “a mere ministerial duty,” where “nothing [is] left to discretion,” than the performance of a “purely executive and political” duty requiring the exercise of discretion vested in the President. Mississippi v. Johnson, 71 U.S. (4 Wall) at 499. An injunction directing the unblocking of the individual plaintiffs would therefore impose a duty that far more closely resembles the duties considered in Swan, see 100 F.3d at 977-78, and in National Treasury Employees Union v. Nixon, 492 F.2d 587, 608 (D.C. Cir. 1974) (defining a “ministerial duty” as “a simple, definite duty, arising under conditions admitted or proved to exist, and imposed by law”), than the highly discretionary duty considered in Mississippi v. Johnson. The ways to faithfully execute the Reconstruction Acts passed by Congress following the Civil War are uncountable in number, but “[t]he law require[s] the performance of a single specific act” here. Mississippi v. Johnson, 71 U.S.
71

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 72 of 75
(4 Wall) at 499. No government official, after all, possesses the discretion to act unconstitutionally.
We need not, however, ultimately resolve the question of whether injunctive relief may be awarded against the President, as injunctive relief directed at Scavino and declaratory relief remain available. While we find entirely unpersuasive the Government’s parade of horribles regarding the judicial interference in executive affairs presented by an injunction directing the President to comply with constitutional restrictions, we nonetheless recognize that “[a]s a matter of comity, courts should normally direct legal process to a lower Executive official even though the effect of the process is to restrain or compel the President.” Nixon v. Sirica, 487 F.2d 700, 709 (D.C. Cir. 1973) (en banc) (per curiam). Subordinate officials may, of course, be enjoined by the courts. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 584, 588 (1952) (affirming an injunction directed at the Secretary of Commerce); see also, e.g., Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 605 (4th Cir.) (en banc) (vacating an injunction only to the extent it was directed at the President), vacated and remanded, 138 S. Ct. 353 (2017). Injunctive relief directed against Scavino would certainly implicate fewer separation-of-powers concerns, see Franklin, 505 U.S. at 802-03, but we also recognize that “the strong remedy of injunction,” Rivera-Puig v. Garcia-Rosario, 983
72

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 73 of 75
F.2d 311, 316 (1st Cir. 1992), should be sparingly employed even when those constitutional concerns are not present; see, e.g., Salazar v. Buono, 559 U.S. 700, 714-15 (2010) (plurality opinion).
Accordingly, though we conclude that injunctive relief may be awarded in this case -- at minimum, against Scavino -- we decline to do so at this time because declaratory relief is likely to achieve the same purpose. The Supreme Court has directed that we should “assume it is substantially likely that the President and other executive . . . officials would abide by an authoritative interpretation of [a] . . . constitutional provision,” Franklin, 505 U.S. at 803 (plurality opinion); see Utah v. Evans, 536 U.S. at 464 (citing Franklin, 505 U.S. at 803 (plurality opinion)); see also Allco Fin. Ltd. v. Klee, 861 F.3d 82, 96 (2d Cir. 2017); Made in the USA, 242 F.3d at 1310; Swan, 100 F.3d at 980; L.A. Cty. Bar Ass’n v. Eu, 979 F.2d 697, 701 (9th Cir. 1992) (“Were this court to issue the requested declaration, we must assume that it is substantially likely that [government officials] . . . would abide by our authoritative determination.”), and there is simply no reason to depart from this assumption at this time. Declaratory judgment is appropriate under the factors that the Second Circuit directs us to consider, see Dow Jones & Co. v. Harrods Ltd., 346 F.3d 357, 359-60 (2d Cir. 2003), and a declaration will therefore issue: the blocking of the individual plaintiffs from the
73

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 74 of 75
@realDonaldTrump account because of their expressed political views violates the First Amendment.
“It is emphatically the province and duty of the judicial department to say what the law is,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803), and we have held that the President’s blocking of the individual plaintiffs is unconstitutional under the First Amendment. Because no government official is above the law and because all government officials are presumed to follow the law once the judiciary has said what the law is, we must assume that the President and Scavino will remedy the blocking we have held to be unconstitutional. V. Conclusion
We conclude that we have jurisdiction to entertain this dispute. Plaintiffs have established legal injuries that are traceable to the conduct of the President and Daniel Scavino and, despite defendants’ suggestions to the contrary, their injuries are redressable by a favorable judicial declaration. Plaintiffs lack standing, however, to sue Sarah Huckabee Sanders, who is dismissed as a defendant. Hope Hicks is also dismissed as a defendant, in light of her resignation as White House Communications Director.
Turning to the merits of plaintiffs’ First Amendment claim, we hold that the speech in which they seek to engage is protected by the First Amendment and that the President and Scavino exert
74

Case 1:17-cv-05205-NRB Document 72 Filed 05/23/18 Page 75 of 75

governmental control over certain aspects of the @realDonaldTrump

account, including the interactive space of the tweets sent from

the account. That i~teractive space is susceptible to analysis

under the Supreme Court's forum doctrines, and is properly

characterized as a designated public forum. The viewpoint-based

exclusion of the individual plaintiffs from that designated public

forum 1s proscribed by the First Amendment and cannot be justified

by the President's personal First Amendment interests.

In sum, defendants' motion for summary judgment is granted in

part and denied 1n part, and plaintiffs' cross-motion for summary

judgment is granted in part and denied in part. The Clerk of the

Court is directed to terminate the motions pending at docket

entries 34 and 42.

SO ORDERED.

Dated:

New York, New York May 23, 2018

L<22"~~
NAOMI REICE BUCHWALD UNITED STATES DISTRICT JUDGE

75

 
 CaCsaes1e:1178--c1v6-9015,2D0o5c-NumRBentD1o6c6u-2m,e0n4t/0716/20F2il0e,d20841/20315/280, PPagaeg1e o1fo2f929

18‐1691‐cv Knight First Amendment Institute, et al v. Donald J. Trump, et al

1

In the

1:17-cv-05205-NRB

2

United States Court of Appeals

3

For the Second Circuit

4

5

6

August Term 2018

7

8

No. 18‐1691‐cv

Apr 01 2020

9

10

KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY,

11 REBECCA BUCKWALTER, PHILIP COHEN, HOLLY FIGUEROA, EUGENE

12

GU, BRANDON NEELY, JOSEPH PAPP, and NICHOLAS PAPPAS,

13

14

Plaintiffs‐Appellees,

15

16

v.

17

18

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES and DANIEL

19 SCAVINO, WHITE HOUSE DIRECTOR OF SOCIAL MEDIA AND ASSISTANT

20

TO THE PRESIDENT,

21

22

Defendants‐Appellants,

23

24

SARAH HUCKABEE SANDERS, WHITE HOUSE PRESS SECRETARY,

25

26

Defendant.*

27

28

29

Appeal from the United States District Court

30

for the Southern District of New York

31

No. 17 Civ. 5205 (NRB), Naomi R. Buchwald, District Judge, Presiding.

32

(Argued: March 26, 2019; Decided: July 9, 2019)

33

34

* The Clerk of Court is respectfully directed to amend the official caption as indicated above.
1

CaCsaes1e:1178--c1v6-9015,2D0o5c-NumRBentD1o6c6u-2m,e0n4t/0716/20F2il0e,d20841/20315/280, PPagaeg2e o2fo2f929

18‐1691‐cv Knight First Amendment Institute, et al v. Donald J. Trump, et al

1

Before: PARKER, HALL, and DRONEY, Circuit Judges.

2

3

Plaintiffs Buckwalter, Cohen, Figueroa, Gu, Neely, Papp, and Pappas

4 (“Individual Plaintiffs”) are social media users who were blocked from accessing

5 and interacting with the Twitter account of President Donald J. Trump because

6 they expressed views he disliked. The Knight First Amendment Institute at

7 Columbia University is an organization alleging a right to hear the speech that

8 the Individual Plaintiffs would have expressed had they not been blocked. The

9 Plaintiffs sued President Trump along with certain White House officials,

10 contending that the blocking violated the First Amendment. The United States

11 District Court for the Southern District of New York (Buchwald, J.) found that

12 the “interactive space” in the account is a public forum and that the exclusion

13 from that space was unconstitutional viewpoint discrimination. We agree, and,

14 accordingly, we affirm the judgment of the District Court.

15

16

AFFIRMED.

17

Jameel Jaffer (Katherine Fallow,

18

Caroline DeCell, Alexander Abdo,

19

Knight First Amendment Institute at

20

Columbia University, New York, NY,

21

Jessica Ring Amunson, Tali R.

22

Leinwand, Jenner & Block, Washington,

23

D.C., on the brief), Knight First

24

Amendment Institute at Columbia

25

University, New York, NY, for Plaintiffs‐

26

Appellees.

27

28

Jennifer Utrecht, Attorney, Appellate

29

Staff, Civil Division (Scott McIntosh,

30

Attorney, Appellate Staff, on the brief),

31

for Chad A. Readler, Acting Assistant

32

Attorney General, Hashim M.

33

Mooppan, Deputy Assistant Attorney

34

General, Washington, D.C., for

35

Defendants‐Appellants.

36

2

CaCsaes1e:1178--c1v6-9015,2D0o5c-NumRBentD1o6c6u-2m,e0n4t/0716/20F2il0e,d20841/20315/280, PPagaeg3e o3fo2f929

18‐1691‐cv Knight First Amendment Institute, et al v. Donald J. Trump, et al

1

David Greene, Electronic Frontier

2

Foundation, San Francisco, CA, for

3

amicus curiae, Electronic Frontier

4

Foundation, in support of Plaintiffs‐

5

Appellees.

6

7

Amy L. Marshak, Joshua A. Geltzer,

8

Mary B. McCord, Institute for

9

Constitutional Advocacy and Protection

10

at Georgetown University Law Center,

11

Washington, D.C., for amici curiae,

12

Ashutosh Bhagwat, Erwin

13

Chemerinksy, Genevieve Lakier, Lyrissa

14

Lidsky, Helen Norton, Amanda Shanor,

15

Geoffrey R. Stone, Laurence H. Tribe,

16

and Rebecca Tushnet, in support of

17

Plaintiffs‐Appellees.

18

19

Dan Backer, Political.Law PLLC,

20

Alexandria, VA, for amicus curiae,

21

Coolidge‐Reagan Foundation, in support

22

of Defendants‐Appellants.

23

24

Donald B. Verrilli, Jr., Chad I. Golder,

25

Rachel G. Miller‐Ziegler, Munger, Tolles

26

& Olson LLP, Washington, D.C., for

27

amicus curiae, Internet Association, in

28

support of neither party.

29

30

31 BARRINGTON D. PARKER, Circuit Judge:

32

President Donald J. Trump appeals from a judgment of the United States

33 District Court for the Southern District of New York (Buchwald, J.) concluding

3

CaCsaes1e:1178--c1v6-9015,2D0o5c-NumRBentD1o6c6u-2m,e0n4t/0716/20F2il0e,d20841/20315/280, PPagaeg4e o4fo2f929
18‐1691‐cv Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 that he engaged in unconstitutional viewpoint discrimination by utilizing

2 Twitter’s “blocking” function to limit certain users’ access to his social media

3 account, which is otherwise open to the public at large, because he disagrees

4 with their speech. We hold that he engaged in such discrimination and,

5 consequently, affirm the judgment below.

6

The salient issues in this case arise from the decision of the President to use

7 a relatively new type of social media platform to conduct official business and to

8 interact with the public. We do not consider or decide whether an elected official

9 violates the Constitution by excluding persons from a wholly private social

10 media account. Nor do we consider or decide whether private social media

11 companies are bound by the First Amendment when policing their platforms.

12 We do conclude, however, that the First Amendment does not permit a public

13 official who utilizes a social media account for all manner of official purposes to

14 exclude persons from an otherwise‐open online dialogue because they expressed

15 views with which the official disagrees.1

16

Twitter is a social media platform that allows its users to electronically

17 send messages of limited length to the public. After creating an account, a user

1 The facts in this case are not in dispute as the case was resolved below on stipulated facts.
4

CaCsaes1e:1178--c1v6-9015,2D0o5c-NumRBentD1o6c6u-2m,e0n4t/0716/20F2il0e,d20841/20315/280, PPagaeg5e o5fo2f929
18‐1691‐cv Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 can post their own messages on the platform (referred to as tweeting). Users

2 may also respond to the messages of others (replying), republish the messages of

3 others (retweeting), or convey approval or acknowledgment of another’s

4 message by “liking” the message. All of a user’s tweets appear on that user’s

5 continuously‐updated “timeline,” which is a convenient method of viewing and

6 interacting with that user’s tweets.

7

When one user replies to another user’s tweet, a “comment thread” is

8 created. When viewing a tweet, this comment thread appears below the original

9 tweet and includes both the first‐level replies (replies to the original tweet) and

10 second‐level replies (replies to the first‐level replies). The comment threads

11 “reflect multiple overlapping ‘conversations’ among and across groups of users”

12 and are a “large part” of what makes Twitter a “‘social’ media platform.” App’x

13 at 50.

14

The platform also allows users to directly interact with each other. For

15 example, User A can “mention” User B in User A’s tweet, prompting a

16 notification to User B that he or she has been mentioned in a tweet. Twitter users

17 can also “follow” one another. If User A follows User B, then all of User B’s

18 tweets appear in User A’s “feed,” which is a continuously‐updated display of

5

CaCsaes1e:1178--c1v6-9015,2D0o5c-NumRBentD1o6c6u-2m,e0n4t/0716/20F2il0e,d20841/20315/280, PPagaeg6e o6fo2f929
18‐1691‐cv Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 content mostly from accounts that User A has chosen to follow. Conversely,

2 User A can “block” User B. This prevents User B from seeing User A’s timeline

3 or any of User A’s tweets. User B, if blocked by User A, is unable to reply to,

4 retweet, or like any of User A’s tweets. Similarly, User A will not see any of User

5 B’s tweets and will not be notified if User B mentions User A.2 The dispute in

6 this case exclusively concerns the President’s use of this blocking function. The

7 government has conceded that the account in question is not itself “independent

8 of [Trump’s] presidency,” but contends that the act of blocking was private

9 conduct that does not implicate the First Amendment. Oral Arg. R. at 1:00 – 1:15.

10

President Trump established his account, with the handle

11 @realDonaldTrump, (the “Account”) in March 2009. No one disputes that before

12 he became President the Account was a purely private one or that once he leaves

13 office the Account will presumably revert to its private status. This litigation

14 concerns what the Account is now. Since his inauguration in January 2017, he

2 All of these features are part of the platform set up by Twitter, a private company. Use of the platform is governed by terms of service which users agree to when they use the platform. See generally Twitter Terms of Service, Twitter, https://twitter.com/en/tos (last visited June 6, 2019). A Twitter user cannot choose to have an account that has a subset of these features. For example, a user cannot obtain from Twitter an account that prohibits certain other users from blocking them. Nor can a user obtain from Twitter an account with the ability to disable the comment thread.
6

CaCsaes1e:1178--c1v6-9015,2D0o5c-NumRBentD1o6c6u-2m,e0n4t/0716/20F2il0e,d20841/20315/280, PPagaeg7e o7fo2f929
18‐1691‐cv Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 has used the Account, according to the parties, “as a channel for communicating

2 and interacting with the public about his administration.” App’x at 54. The

3 President’s tweets from the Account can be viewed by any member of the public

4 without being signed into a Twitter account. However, if a user has been

5 blocked from the Account, they cannot view the Account’s tweets when logged

6 in to their account. At the time of the parties’ stipulation, the Account had more

7 than 50 million followers. The President’s tweets produce an extraordinarily

8 high level of public engagement, typically generating thousands of replies, some

9 of which, in turn, generate hundreds of thousands of additional replies. The

10 President has not generally sought to limit who can follow the Account, nor has

11 he sought to limit the kind of speech that users can post in reply to his tweets.

12

The public presentation of the Account and the webpage associated with it

13 bear all the trappings of an official, state‐run account. The page is registered to

14 Donald J. Trump “45th President of the United States of America, Washington

15 D.C.” Id. at 54‐55. The header photographs of the Account show the President

16 engaged in the performance of his official duties such as signing executive

17 orders, delivering remarks at the White House, and meeting with the Pope,

18 heads of state, and other foreign dignitaries.

7

CaCsaes1e:1178--c1v6-9015,2D0o5c-NumRBentD1o6c6u-2m,e0n4t/0716/20F2il0e,d20841/20315/280, PPagaeg8e o8fo2f929

18‐1691‐cv Knight First Amendment Institute, et al v. Donald J. Trump, et al

1

The President and multiple members of his administration have described

2 his use of the Account as official. The President has stipulated that he, with the

3 assistance of Defendant Daniel Scavino, uses the Account frequently “to

4 announce, describe, and defend his policies; to promote his Administration’s

5 legislative agenda; to announce official decisions; to engage with foreign political

6 leaders; to publicize state visits; [and] to challenge media organizations whose

7 coverage of his Administration he believes to be unfair.” Id. at 56. In June 2017,

8 then‐White House Press Secretary Sean Spicer stated at a press conference that

9 President Trump’s tweets should be considered “official statements by the

10 President of the United States.” Id. at 55‐56. In June 2017, the White House

11 responded to a request for official White House records from the House

12 Permanent Select Committee on Intelligence by referring the Committee to a

13 statement made by the President on Twitter.

14

Moreover, the Account is one of the White House’s main vehicles for

15 conducting official business. The President operates the Account with the

16 assistance of defendant Daniel Scavino, the White House Director of Social

17 Media and Assistant to the President. The President and his aides have

18 characterized tweets from the Account as official statements of the President. For

8

CaCsaes1e:1178--c1v6-9015,2D0o5c-NumRBentD1o6c6u-2m,e0n4t/0716/20F2il0e,d20841/20315/280, PPagaeg9e o9fo2f929
18‐1691‐cv Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 example, the President used the Account to announce the nomination of

2 Christopher Wray as FBI director and to announce the administration’s ban on

3 transgender individuals serving in the military. The President used the Account

4 to first announce that he had fired Chief of Staff Reince Priebus and replaced him

5 with General John Kelly. President Trump also used the Account to inform the

6 public about his discussions with the South Korean president concerning North

7 Korea’s nuclear program and about his decision to sell sophisticated military

8 hardware to Japan and South Korea.

9

Finally, we note that the National Archives, the agency of government

10 responsible for maintaining the government’s records, has concluded that the

11 President’s tweets are official records. The Presidential Records Act of 1978

12 established public ownership of the President’s official records. 44 U.S.C. § 2202.

13 Under that Act, “Presidential records” include documentary materials created by

14 the President “in the course of conducting activities which relate to or have an

15 effect upon the carrying out of the constitutional, statutory or other official or

16 ceremonial duties of the President.” Id. § 2201. The statute authorizes the

17 Archivist of the United States to “maintain and preserve Presidential records on

18 behalf of the President, including records in digital or electronic form.” Id. §

9

CaCsaes1e:1178--c1v6-9015,2D0o5c-NumRBentD1o6c6u-2m,e0n4t/0716/20F2il0e,d20841/20315/280, PPagaeg1e01o0fo2f929
18‐1691‐cv Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 2203. Accordingly, the National Archives and Records Administration has

2 advised the White House that the President’s tweets are “official records that

3 must be preserved under the Presidential Records Act.” App’x at 57.

4

In May and June of 2017, the President blocked each of the Individual

5 Plaintiffs (but not the Knight First Amendment Institute) from the Account. The

6 government concedes that each of them was blocked after posting replies in

7 which they criticized the President or his policies and that they were blocked as a

8 result of their criticism. The government also concedes that because they were

9 blocked they are unable to view the President’s tweets, to directly reply to these

10 tweets, or to use the @realDonaldTrump webpage to view the comment threads

11 associated with the President’s tweets.

12

The Individual Plaintiffs further contend that their inability to view,

13 retweet, and reply to the President’s tweets limits their ability to participate with

14 other members of the public in the comment threads that appear below the

15 President’s tweets. The parties agree that, without the context of the President’s

16 original tweets (which the Individual Plaintiffs are unable to view when logged

17 in to their accounts), it is more difficult to follow the conversations occurring in

18 the comment threads. In addition, the parties have stipulated that as a

10

CaCsaes1e:1178--c1v6-9015,2D0o5c-NumRBentD1o6c6u-2m,e0n4t/0716/20F2il0e,d20841/20315/280, PPagaeg1e11o1fo2f929
18‐1691‐cv Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 consequence of their having been blocked, the Individual Plaintiffs are burdened

2 in their ability to view or directly reply to the President’s tweets, and to

3 participate in the comment threads associated with the President’s tweets.

4

While various “workarounds” exist that would allow each of the

5 Individual Plaintiffs to engage with the Account, they contend that each is

6 burdensome. For example, blocked users who wish to participate in the

7 comment thread of a blocking user’s tweet could log out of their accounts,

8 identify a first‐level reply to which they would like to respond, log back into

9 their accounts, locate the first‐level reply on the author’s timeline, and then post

10 a message in reply. The blocked users’ messages would appear in the comment

11 thread of the blocking user’s tweet, although the blocking user would be unable

12 to see it. Blocked users could also create a new Twitter account. Alternatively,

13 blocked users could log out of their accounts, navigate to the blocking user’s

14 timeline, take a screenshot of the blocking user’s tweet, then log back into their

15 own accounts and post that screenshot along with their own commentary.

16

In July 2017, the Individual Plaintiffs and the Knight Institute sued Donald

17 Trump, Daniel Scavino, and two other White House staff members alleging that

18 blocking them from the Account violated the First Amendment. The parties

11

CaCsaes1e:1178--c1v6-9015,2D0o5c-NumRBentD1o6c6u-2m,e0n4t/0716/20F2il0e,d20841/20315/280, PPagaeg1e21o2fo2f929
18‐1691‐cv Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 cross‐moved below for summary judgment. The District Court granted 2 summary judgment in favor of the plaintiffs and entered a declaratory judgment 3 that “the blocking of the individual plaintiffs from the [Account] because of their 4 expressed political views violates the First Amendment.” Knight First 5 Amendment Inst. at Columbia Univ. v. Trump, 302 F. Supp. 3d 541, 579 (S.D.N.Y. 6 2018). The District Court held that the “interactive space” associated with each 7 tweet constituted a public forum for First Amendment purposes because it was a 8 forum “in which other users may directly interact with the content of the tweets 9 by . . . replying to, retweeting or liking the tweet.” Id. at 566. The Court reasoned 10 that: (1) “there can be no serious suggestion that the interactive space is 11 incompatible with expressive activity,” and (2) the President and his staff hold 12 the Account open, without restriction, to the public at large on a broadly‐ 13 accessible social media platform. Id. at 574‐75. As to the government control 14 requirement of the public forum analysis, the court found that “the President 15 presents the @realDonaldTrump account as being a presidential account as 16 opposed to a personal account and . . . uses the account to take actions that can 17 be taken only by the President as President.” Id. at 567. The court concluded that 18 “because the President and Scavino use the @realDonaldTrump account for
12

CaCsaes1e:1178--c1v6-9015,2D0o5c-NumRBentD1o6c6u-2m,e0n4t/0716/20F2il0e,d20841/20315/280, PPagaeg1e31o3fo2f929
18‐1691‐cv Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 governmental functions” they exercise government control over the relevant

2 aspects of the Account, including the blocking function. Id. at 569. The court also

3 rejected the idea that speech within the interactive space on the platform is

4 government speech not subject to First Amendment restrictions, concluding that

5 “replies to the President’s tweets remain the private speech of the replying user.”

6 Id. at 572.

7

After concluding that the defendants had created a public forum in the

8 interactive space of the Account, the court concluded that, by blocking the

9 Individual Plaintiffs because of their expressed political views, the government

10 had engaged in viewpoint discrimination. Id. at 577. Finally, the court held that

11 the blocking of the Individual Plaintiffs violated the Knight Institute’s right to

12 read the replies of the Individual Plaintiffs which they cannot post because they

13 are blocked. Id. at 563‐64.3

3 The District Court concluded that all plaintiffs had standing to sue, a conclusion the government does not challenge on this appeal and with which we agree. After the District Court granted declaratory relief, the defendants unblocked the Individual Plaintiffs from the Account. This does not render the case moot. Walling v. Helmerich & Payne, 323 U.S. 37, 43 (1944) (“Voluntary discontinuance of an alleged illegal activity does not operate to remove a case from the ambit of judicial power.”).
13

CaCsaes1e:1178--c1v6-9015,2D0o5c-NumRBentD1o6c6u-2m,e0n4t/0716/20F2il0e,d20841/20315/280, PPagaeg1e41o4fo2f929

18‐1691‐cv Knight First Amendment Institute, et al v. Donald J. Trump, et al

1

This Court reviews a grant of summary judgment de novo, applying the

2 same standards that governed the district court’s resolution of the motion.

3 Summa v. Hofstra Univ., 708 F.3d 115, 123 (2d Cir. 2013). All questions presented

4 on this appeal, including questions of constitutional interpretation, are ones of

5 law which we review de novo. All. for Open Socʹy Intʹl, Inc. v. United States Agency

6 for Intʹl Dev., 911 F.3d 104, 109 (2d Cir. 2018). Because we agree that in blocking

7 the Individual Plaintiffs the President engaged in prohibited viewpoint

8 discrimination, we affirm.

9

DISCUSSION

10

The President’s primary argument in his brief is that when he blocked the

11 Individual Plaintiffs, he was exercising control over a private, personal account.

12 At oral argument, however, the government conceded that the Account is not

13 “independent of [Trump’s] presidency,” choosing instead to argue only that the

14 act of blocking was not state action. Oral Arg. R. at 1:00 – 1:15. The President

15 contends that the Account is exclusively a vehicle for his own speech to which

16 the Individual Plaintiffs have no right of access and to which the First

17 Amendment does not apply. Secondarily, he argues that, in any event, the

18 Account is not a public forum and that even if the Account were a public forum,

14

CaCsaes1e:1178--c1v6-9015,2D0o5c-NumRBentD1o6c6u-2m,e0n4t/0716/20F2il0e,d20841/20315/280, PPagaeg1e51o5fo2f929
18‐1691‐cv Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 blocking the Individual Plaintiffs did not prevent them from accessing the forum.

2 The President further argues that, to the extent the Account is government‐

3 controlled, posts on it are government speech to which the First Amendment

4 does not apply. We are not persuaded. We conclude that the evidence of the

5 official nature of the Account is overwhelming. We also conclude that once the

6 President has chosen a platform and opened up its interactive space to millions

7 of users and participants, he may not selectively exclude those whose views he

8 disagrees with.

9

I.

10

The President concedes that he blocked the Individual Plaintiffs because

11 they posted tweets that criticized him or his policies. He also concedes that such

12 criticism is protected speech. The issue then for this Court to resolve is whether,

13 in blocking the Individual Plaintiffs from the interactive features of the Account,

14 the President acted in a governmental capacity or as a private citizen.

15

The President maintains that Twitter is a privately owned and operated

16 social media platform that he has used since 2009 to share his opinions on

17 popular culture, world affairs, and politics. Since he became President, he

18 contends, the private nature of the Account has not changed. In his view, the

15

CaCsaes1e:1178--c1v6-9015,2D0o5c-NumRBentD1o6c6u-2m,e0n4t/0716/20F2il0e,d20841/20315/280, PPagaeg1e61o6fo2f929
18‐1691‐cv Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 Account is not a space owned or controlled by the government. Rather, it is a

2 platform for his own private speech and not one for the private expression of

3 others. Because the Account is private, he argues, First Amendment issues and

4 forum analysis are not implicated. Although Twitter facilitates robust public

5 debate on the Account, the President contends that it is simply the means

6 through which he participates in a forum and not a public forum in and of itself.

7

No one disputes that the First Amendment restricts government regulation

8 of private speech but does not regulate purely private speech.4 If, in blocking,

9 the President were acting in a governmental capacity, then he may not

10 discriminate based on viewpoint among the private speech occurring in the

11 Account’s interactive space. As noted, the government argues first that the

12 Account is the President’s private property because he opened it in 2009 as a

13 personal account and he will retain personal control over the Account after his

14 presidency. However, the fact that government control over property is

15 temporary, or that the government does not “own” the property in the sense that

4 See, e.g., Harris v. Quinn, 573 U.S. 616, 629 n.4 (2014); Loce v. Time Warner Entmʹt Advance/Newhouse Pʹship, 191 F.3d 256, 266 (2d Cir. 1999); see also Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 467 (2009); Hartman v. Moore, 547 U.S. 250, 256 (2006) (stating that “as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions . . . for speaking out”).
16

CaCsaes1e:1178--c1v6-9015,2D0o5c-NumRBentD1o6c6u-2m,e0n4t/0716/20F2il0e,d20841/20315/280, PPagaeg1e71o7fo2f929
18‐1691‐cv Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 it holds title to the property, is not determinative of whether the property is, in

2 fact, sufficiently controlled by the government to make it a forum for First

3 Amendment purposes. See Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 547‐52

4 (1975) (holding privately‐owned theater leased to and operated by city was

5 public forum).5 Temporary control by the government can still be control for

6 First Amendment purposes.

7

The government’s contention that the President’s use of the Account

8 during his presidency is private founders in the face of the uncontested evidence

9 in the record of substantial and pervasive government involvement with, and

10 control over, the Account. First, the Account is presented by the President and

11 the White House staff as belonging to, and operated by, the President. The

12 Account is registered to “Donald J. Trump, ‘45th President of the United States of

13 America, Washington, D.C.’” App’x at 54. The President has described his use

14 of the Account as “MODERN DAY PRESIDENTIAL.” Id. at 55. The White

5 See also Denver Area Educ. Telecommunications Consortium, Inc. v. F.C.C., 518 U.S. 727, 749 (1996) (plurality opinion) (stating that “public forums are places that the government has opened for use by the public as a place for expressive activity” (internal quotation marks omitted)); U.S. Postal Serv. v. Council of Greenburgh Civic Associations, 453 U.S. 114, 132 (considering “question of whether a particular piece of personal or real property owned or controlled by the government” is a public forum (emphasis added)).
17

CaCsaes1e:1178--c1v6-9015,2D0o5c-NumRBentD1o6c6u-2m,e0n4t/0716/20F2il0e,d20841/20315/280, PPagaeg1e81o8fo2f929
18‐1691‐cv Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 House social media director has described the Account as a channel through

2 which “President Donald J. Trump . . . [c]ommunicat[es] directly with you, the

3 American people!” Id. The @WhiteHouse account, an undoubtedly official

4 Twitter account run by the government, “directs Twitter users to ‘Follow for the

5 latest from @POTUS @realDonaldTrump and his Administration.” Id. Further,

6 the @POTUS account frequently republishes tweets from the Account.6 As

7 discussed earlier, according to the National Archives and Records

8 Administration, the President’s tweets from the Account “are official records that

9 must be preserved under the Presidential Records Act.” Id. at 57.

10

Second, since becoming President he has used the Account on almost a

11 daily basis “as a channel for communicating and interacting with the public

12 about his administration.” Id. at 54. The President utilizes White House staff to

13 post tweets and to maintain the Account. He uses the Account to announce

14 “matters related to official government business,” including high‐level White

6 The President and the White House operate two other Twitter accounts: @POTUS and @WhiteHouse. Both accounts are official government accounts. Those accounts belong strictly to the government, in the sense that the President and members of the White House administration will not retain control over those accounts upon leaving office. The @POTUS account is the official account of the U.S. President. The @WhiteHouse account is the official account for the White House administration.
18

CaCsaes1e:1178--c1v6-9015,2D0o5c-NumRBentD1o6c6u-2m,e0n4t/0716/20F2il0e,d20841/20315/280, PPagaeg1e91o9fo2f929
18‐1691‐cv Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 House and cabinet‐level staff changes as well as changes to major national

2 policies. Id. at 56. He uses the Account to engage with foreign leaders and to

3 announce foreign policy decisions and initiatives. Finally, he uses the “like,”

4 “retweet,” “reply,” and other functions of the Account to understand and to

5 evaluate the public’s reaction to what he says and does. In sum, since he took

6 office, the President has consistently used the Account as an important tool of

7 governance and executive outreach. For these reasons, we conclude that the

8 factors pointing to the public, non‐private nature of the Account and its

9 interactive features are overwhelming.

10

The government’s response is that the President is not acting in his official

11 capacity when he blocks users because that function is available to all users, not

12 only to government officials. However, the fact that any Twitter user can block

13 another account does not mean that the President somehow becomes a private

14 person when he does so. Because the President, as we have seen, acts in an

15 official capacity when he tweets, we conclude that he acts in the same capacity

16 when he blocks those who disagree with him. Here, a public official and his

17 subordinates hold out and use a social media account open to the public as an

18 official account for conducting official business. That account has interactive

19

CaCsaes1e:1178--c1v6-9015,2D0o5c-NumRBentD1o6c6u-2m,e0n4t/0716/20F2il0e,d20841/20315/280, PPagaeg2e02o0fo2f929
18‐1691‐cv Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 features open to the public, making public interaction a prominent feature of the

2 account. These factors mean that the account is not private. See generally

3 Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819, 830 (1995)

4 (applying the same principles to “metaphysical” forums as to those that exist in

5 “a spatial or geographic sense”); see also Davison v. Randall, 912 F.3d 666, 680 (4th

6 Cir. 2019) (holding that a public official who used a Facebook Page as a tool of

7 her office exercised state action when banning a constituent); Robinson v. Hunt

8 Cty., Texas, 921 F.3d 440, 447 (5th Cir. 2019) (finding that a government official’s

9 act of banning a constituent from an official government social media page was

10 unconstitutional viewpoint discrimination). Accordingly, the President excluded

11 the Individual Plaintiffs from government‐controlled property when he used the

12 blocking function of the Account to exclude disfavored voices.

13

Of course, not every social media account operated by a public official is a

14 government account. Whether First Amendment concerns are triggered when a

15 public official uses his account in ways that differ from those presented on this

16 appeal will in most instances be a fact‐specific inquiry. The outcome of that

17 inquiry will be informed by how the official describes and uses the account; to

18 whom features of the account are made available; and how others, including

20

CaCsaes1e:1178--c1v6-9015,2D0o5c-NumRBentD1o6c6u-2m,e0n4t/0716/20F2il0e,d20841/20315/280, PPagaeg2e12o1fo2f929
18‐1691‐cv Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 government officials and agencies, regard and treat the account. But these are

2 concerns for other cases and other days and are ones we are not required to

3 consider or resolve on this appeal.

4

II.

5

Once it is established that the President is a government actor with respect

6 to his use of the Account, viewpoint discrimination violates the First

7 Amendment. Manhattan Community Access Corp. et al. v. Halleck et al., 587 U.S. __

8 (2019) (“When the government provides a forum for speech (known as a public

9 forum), the government may be constrained by the First Amendment, meaning

10 that the government ordinarily may not exclude speech or speakers from the

11 forum on the basis of viewpoint . . . .”); see also Pleasant Grove, 555 U.S. at 469‐70

12 (viewpoint discrimination prohibited in traditional, designated, and limited

13 public forums); Cornelius, 473 U.S. at 806 (viewpoint discrimination prohibited in

14 nonpublic forums).

15

The government makes two responses. First, it argues that the Account is

16 not a public forum and that, even if it were a public forum, the Individual

17 Plaintiffs were not excluded from it. Second, the government argues that the

21

CaCsaes1e:1178--c1v6-9015,2D0o5c-NumRBentD1o6c6u-2m,e0n4t/0716/20F2il0e,d20841/20315/280, PPagaeg2e22o2fo2f929
18‐1691‐cv Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 Account, if controlled by the government, is government speech not subject to

2 First Amendment restrictions.

3

A.

4

As a general matter, social media is entitled to the same First Amendment

5 protections as other forms of media. Packingham v. North Carolina, 137 S. Ct. 1730,

6 1735‐36 (2017) (holding a state statute preventing registered sex offenders from

7 accessing social media sites invalid and describing social media use as “protected

8 First Amendment activity”). “[W]hatever the challenges of applying the

9 Constitution to ever‐advancing technology, ‘the basic principles of freedom of

10 speech and the press, like the First Amendment’s command, do not vary’ when a

11 new and different medium for communication appears.” Brown v. Entm’t

12 Merchants Ass’n, 564 U.S. 786, 790 (2011) (quoting Joseph Burstyn, Inc. v. Wilson,

13 343 U.S. 495, 503 (1952)). A public forum, as the Supreme Court has also made

14 clear, need not be “spatial or geographic” and “the same principles are

15 applicable” to a metaphysical forum. Rosenberger, 515 U.S. at 830.

16

To determine whether a public forum has been created, courts look “to the

17 policy and practice of the government” as well as “the nature of the property and

18 its compatibility with expressive activity to discern the government’s intent.”

22

CaCsaes1e:1178--c1v6-9015,2D0o5c-NumRBentD1o6c6u-2m,e0n4t/0716/20F2il0e,d20841/20315/280, PPagaeg2e32o3fo2f929
18‐1691‐cv Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 Cornelius, 473 U.S. at 802. Opening an instrumentality of communication “for

2 indiscriminate use by the general public” creates a public forum. Perry Educ.

3 Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 47 (1983). The Account was

4 intentionally opened for public discussion when the President, upon assuming

5 office, repeatedly used the Account as an official vehicle for governance and

6 made its interactive features accessible to the public without limitation. We hold

7 that this conduct created a public forum.

8

If the Account is a forum—public or otherwise—viewpoint discrimination

9 is not permitted. Int’l Soc. For Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 679

10 (1992); see also Pleasant Grove, 555 U.S. at 469‐70 (viewpoint discrimination

11 prohibited in traditional, designated, and limited public forums); Cornelius, 473

12 U.S. at 806 (viewpoint discrimination prohibited in nonpublic forums). A

13 blocked account is prevented from viewing any of the President’s tweets,

14 replying to those tweets, retweeting them, or liking them. Replying, retweeting,

15 and liking are all expressive conduct that blocking inhibits. Replying and

16 retweeting are messages that a user broadcasts, and, as such, undeniably are

17 speech. Liking a tweet conveys approval or acknowledgment of a tweet and is

18 therefore a symbolic message with expressive content. See, e.g., W. Virginia State

23

CaCsaes1e:1178--c1v6-9015,2D0o5c-NumRBentD1o6c6u-2m,e0n4t/0716/20F2il0e,d20841/20315/280, PPagaeg2e42o4fo2f929
18‐1691‐cv Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 Bd. of Educ. v. Barnette, 319 U.S. 624, 632‐33 (1943) (discussing symbols as speech).

2 Significantly, the parties agree that all of this expressive conduct is

3 communicated to the thousands of users who interact with the Account. By

4 blocking the Individual Plaintiffs and preventing them from viewing, retweeting,

5 replying to, and liking his tweets, the President excluded the Individual Plaintiffs

6 from a public forum, something the First Amendment prohibits.

7

The government does not challenge the District Court’s conclusion that the

8 speech in which Individual Plaintiffs seek to engage is protected speech; instead,

9 it argues that blocking did not ban or burden anyone’s speech. See Knight First

10 Amendment, 302 F. Supp. 3d at 565. Specifically, the government contends that

11 the Individual Plaintiffs were not prevented from speaking because “the only

12 material impact that blocking has on the individual plaintiffs’ ability to express

13 themselves on Twitter is that it prevents them from speaking directly to Donald

14 Trump by replying to his tweets on the @realDonaldTrump web page.”

15 Appellants Br. at 35.

16

That assertion is not well‐grounded in the facts presented to us. The

17 government is correct that the Individual Plaintiffs have no right to require the

18 President to listen to their speech. See Minnesota State Bd. for Cmty. Colleges v.

24

CaCsaes1e:1178--c1v6-9015,2D0o5c-NumRBentD1o6c6u-2m,e0n4t/0716/20F2il0e,d20841/20315/280, PPagaeg2e52o5fo2f929
18‐1691‐cv Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 Knight, 465 U.S. 271, 283 (1984) (a plaintiff has “no constitutional right to force

2 the government to listen to their views”). However, the speech restrictions at

3 issue burden the Individual Plaintiffs’ ability to converse on Twitter with others

4 who may be speaking to or about the President.7 President Trump is only one of

5 thousands of recipients of the messages the Individual Plaintiffs seek to

6 communicate. While he is certainly not required to listen, once he opens up the

7 interactive features of his account to the public at large he is not entitled to

8 censor selected users because they express views with which he disagrees.8

9

The government’s reply is that the Individual Plaintiffs are not censored

10 because they can engage in various “workarounds” such as creating new

7 If, for example, the President had merely prevented the Individual Plaintiffs from sending him direct messages, his argument would have more force.
8 The government extends this argument to suggest that the Individual Plaintiffs are claiming a right to “amplify” their speech by being able to reply directly to the President’s tweets. The government can choose to “amplify” the speech of certain individuals without violating the rights of others by choosing to listen or not listen. See Minnesota State Bd., 465 U.S. at 288 (stating that “[a]mplification of the sort claimed is inherent in government’s freedom to choose its advisers. A person’s right to speak is not infringed when government simply ignores that person while listening to others.”). That is not what occurred here; the Individual Plaintiffs were not simply ignored by the President, their ability to speak to the rest of the public users of the Account was burdened. In any event, the government is not permitted to “amplify” favored speech by banning or burdening viewpoints with which it disagrees.
25

CaCsaes1e:1178--c1v6-9015,2D0o5c-NumRBentD1o6c6u-2m,e0n4t/0716/20F2il0e,d20841/20315/280, PPagaeg2e62o6fo2f929
18‐1691‐cv Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 accounts, logging out to view the President’s tweets, and using Twitter’s search

2 functions to find tweets about the President posted by other users with which

3 they can engage.

4

Tellingly, the government concedes that these “workarounds” burden the

5 Individual Plaintiffs’ speech. See App’x 35‐36, 66. And burdens to speech as well

6 as outright bans run afoul of the First Amendment. See Sorrell v. IMS Health Inc.,

7 564 U.S. 552, 566 (2011) (stating that government “may no more silence

8 unwanted speech by burdening its utterance than by censoring its content”);

9 United States v. Playboy Entmʹt Grp., Inc., 529 U.S. 803, 812 (2000) (“The distinction

10 between laws burdening and laws banning speech is but a matter of degree. The

11 Government’s content‐based burdens must satisfy the same rigorous scrutiny as

12 its content‐based bans.”). When the government has discriminated against a

13 speaker based on the speaker’s viewpoint, the ability to engage in other speech

14 does not cure that constitutional shortcoming. Christian Legal Soc. Chapter of the

15 Univ. of California, Hastings Coll. of the Law v. Martinez, 561 U.S. 661, 690 (2010).

16 Similarly, the fact that the Individual Plaintiffs retain some ability to “work

17 around” the blocking does not cure the constitutional violation. Neither does the

18 fact that the Individual Plaintiffs can post messages elsewhere on Twitter.

26

CaCsaes1e:1178--c1v6-9015,2D0o5c-NumRBentD1o6c6u-2m,e0n4t/0716/20F2il0e,d20841/20315/280, PPagaeg2e72o7fo2f929
18‐1691‐cv Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 Accordingly, we hold that the President violated the First Amendment when he

2 used the blocking function to exclude the Individual Plaintiffs because of their

3 disfavored speech.

4

B.

5

Finally, the government argues that to the extent the Account is controlled

6 by the government, it is government speech. Under the government speech

7 doctrine, “[t]he Free Speech Clause does not require government to maintain

8 viewpoint neutrality when its officers and employees speak” about

9 governmental endeavors. Matal v. Tam, 137 S. Ct. 1744, 1757 (2017). For

10 example, when the government wishes to promote a war effort, it is not required

11 by the First Amendment to also distribute messages discouraging that effort. Id.

12 at 1758; see also Pleasant Grove, 555 U.S. at 467 (“The Free Speech Clause restricts

13 government regulation of private speech; it does not regulate government

14 speech.”).

15

It is clear that if President Trump were engaging in government speech

16 when he blocked the Individual Plaintiffs, he would not have been violating the

17 First Amendment. Everyone concedes that the President’s initial tweets

18 (meaning those that he produces himself) are government speech. But this case

27

CaCsaes1e:1178--c1v6-9015,2D0o5c-NumRBentD1o6c6u-2m,e0n4t/0716/20F2il0e,d20841/20315/280, PPagaeg2e82o8fo2f929
18‐1691‐cv Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 does not turn on the President’s initial tweets; it turns on his supervision of the

2 interactive features of the Account. The government has conceded that the

3 Account “is generally accessible to the public at large without regard to political

4 affiliation or any other limiting criteria,” and the President has not attempted to

5 limit the Account’s interactive feature to his own speech. App’x at 55.

6

Considering the interactive features, the speech in question is that of

7 multiple individuals, not just the President or that of the government. When a

8 Twitter user posts a reply to one of the President’s tweets, the message is

9 identified as coming from that user, not from the President. There is no record

10 evidence, and the government does not argue, that the President has attempted

11 to exercise any control over the messages of others, except to the extent he has

12 blocked some persons expressing viewpoints he finds distasteful. The contents of

13 retweets, replies, likes, and mentions are controlled by the user who generates

14 them and not by the President, except to the extent he attempts to do so by

15 blocking. Accordingly, while the President’s tweets can accurately be described

16 as government speech, the retweets, replies, and likes of other users in response

17 to his tweets are not government speech under any formulation. The Supreme

18 Court has described the government speech doctrine as “susceptible to

28

CaCsaes1e:1178--c1v6-9015,2D0o5c-NumRBentD1o6c6u-2m,e0n4t/0716/20F2il0e,d20841/20315/280, PPagaeg2e92o9fo2f929
18‐1691‐cv Knight First Amendment Institute, et al v. Donald J. Trump, et al
1 dangerous misuse.” Matal, 137 S. Ct. at 1758. It has urged “great caution” to

2 prevent the government from “silenc[ing] or muffl[ing] the expression of

3 disfavored viewpoints” under the guise of the government speech doctrine. Id.

4 Extension of the doctrine in the way urged by President Trump would produce

5 precisely this result.

6

The irony in all of this is that we write at a time in the history of this nation

7 when the conduct of our government and its officials is subject to wide‐open,

8 robust debate. This debate encompasses an extraordinarily broad range of ideas

9 and viewpoints and generates a level of passion and intensity the likes of which

10 have rarely been seen. This debate, as uncomfortable and as unpleasant as it

11 frequently may be, is nonetheless a good thing. In resolving this appeal, we

12 remind the litigants and the public that if the First Amendment means anything,

13 it means that the best response to disfavored speech on matters of public concern

14 is more speech, not less.

15

CONCLUSION

16

The judgment of the District Court is AFFIRMED.

29

 
 Case 1:17-cv-05205-NRB Document 789 Filed 04/0190/20 Page 1 of 2

April 9, 2020

Via ECF and by Fax
The Honorable Naomi Reice Buchwald United States District Court for the Southern
District of New York Daniel Patrick Moynihan United States
Courthouse 500 Pearl Street, Room 2270 New York, NY 10007-1312

Application granted. Dated: April 10, 2020

Re: Knight First Amendment Institute, et al. v. Trump, et al., Case No. 1:17-cv-05205 (NRB)
Dear Judge Buchwald,
Plaintiffs write pursuant to Federal Rule of Civil Procedure 6(b), Local Rule 7.1(d), and Section 1(E) of this Court’s individual practices, to request that the Court set the deadline for Plaintiffs to file any motion for attorneys’ fees and costs in this case to thirty days after all appeals have been exhausted. Defendants consent to this request.
On May 23, 2018, the Court issued a Memorandum and Order holding that Defendants violated the First Amendment by blocking the Individual Plaintiffs from the @realDonaldTrump Twitter account based on the views they expressed. ECF No. 72. On July 9, 2019, the Second Circuit affirmed this Court’s judgment. 928 F.3d 226 (2d Cir. 2019). On March 23, 2020, the Second Circuit denied Defendants’ petition for rehearing en banc. No. 18-1691-CV, 2020 WL 1328845 (2d Cir. Mar. 23, 2020) (mandate issued Apr. 1, 2020).
Plaintiffs’ Complaint, ECF No. 1, requests an award of attorneys’ fees pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, which authorizes an award of “costs” and “reasonable fees and expenses of attorneys” to the “prevailing party in any civil action brought by or against the United States or any agency or any official of the United States acting in his or her official capacity in any court having jurisdiction of such action.” Plaintiffs are also entitled to recover their taxable costs in this action if they prevail. 28 U.S.C. § 1920; Local Rule 54.1. The EAJA provides that a prevailing

475 Riverside Drive, Suite 302, New York, NY 10115 | (646) 745-8500 | stephanie.krent@knightcolumbia.org

Case 1:17-cv-05205-NRB Document 789 Filed 04/0190/20 Page 2 of 2

party has thirty days after all appeals have been exhausted to file a motion for fees and expenses. See §§ 2412(d)(1)(B), (d)(2)(G).
The parties agree that the EAJA’s thirty-day statutory deadline for seeking fees supersedes the fourteen-day deadline in Federal Rule of Civil Procedure 54(d)(2). See Fed. R. Civ. P. 54(d)(2) (fourteen-day deadline for filing motion for fees “unless a statute or court order provides otherwise”). Plaintiffs are filing this letter to notify the Court of that understanding, and respectfully request that the Court set the deadline for Plaintiffs to file any motion for attorneys’ fees and costs in this case to thirty days after all appeals have been exhausted.

Jessica Ring Amunson Tassity S. Johnson Tali R. Leinwand Jenner & Block LLP 1099 New York Avenue, NW
Suite 900 Washington, DC 20001 (202) 639-6000 jamunson@jenner.com

Respectfully,
/s/ Jameel Jaffer Jameel Jaffer (JJ-4653) Katie Fallow (KF-2535) Carrie DeCell (CD-0731) Alex Abdo (AA-0527) Knight First Amendment Institute at
Columbia University 475 Riverside Drive, Suite 302 New York, NY 10115 (646) 745-8500 jameel.jaffer@knightcolumbia.org

2

 
 953 F.3d 216 (2020)
KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY, Rebecca Buckwalter, Philip Cohen, Holly Figueroa, Eugene Gu, Brandon
Neely, Joseph Papp, and Nicholas Pappas, Plaintiffs-Appellees, v.
Donald J. TRUMP, President of the United States and Daniel Scavino, White House Director of Social Media and Assistant To the President,
Defendants-Appellants, Sarah Huckabee Sanders, White House Press Secretary, Defendant.
No. 18-1691-cv.
United States Court of Appeals, Second Circuit.
March 23, 2020.
Following disposition of this appeal on July 9, 2019, an active judge of the Court requested a poll on whether to rehear the case en banc. A poll having been conducted and there being no majority favoring en banc review, rehearing en banc is hereby DENIED.
For Plaintiffs-Appellees: Jameel Jaffer (Katherine Fallow, Caroline DeCell, Alexander Abdo, Meenakshi Krishnan, on the brief), Knight First Amendment Institute at Columbia University, New York, NY, Jessica Ring Amunson (Tassity Johnson, Tali R. Leinwand, on the brief), Jenner & Block, Washington, D.C.
For Defendants-Appellants: Jennifer Utrecht (Scott McIntosh, on the brief), 217*217 Attorneys, Appellate Staff, Civil Division, for Joseph H. Hunt, Assistant Attorney General, Hashim M. Mooppan, Deputy Assistant Attorney General, Washington, D.C.
Present: ROBERT A. KATZMANN, Chief Judge, JOSÉ A. CABRANES, ROSEMARY S. POOLER, PETER W. HALL, DENNY CHIN, RAYMOND J. LOHIER, JR., RICHARD J. SULLIVAN, JOSEPH F. BIANCO, MICHAEL H. PARK, Circuit Judges.
Debra Ann Livingston and Susan L. Carney, Circuit Judges, took no part in the consideration or decision of this petition.
Barrington D. Parker, Circuit Judge, statement with respect to the denial of rehearing en banc.
This case arises from the President's use of the @realDonaldTrump Twitter account (the "Account") as a primary vehicle for his official communications. He uses this account to make official statements on a wide variety of subjects, many of great national importance. The public, in turn, is able to respond to and engage with the President and other users on Twitter. In Knight First Amendment Inst. at Columbia Univ. v. Trump, we concluded that this dialogue creates a public forum. 928 F.3d 226 (2d Cir. 2019). We also concluded that when

the President creates such a public forum, he violates the First Amendment when he excludes persons from the dialogue because they express views with which he disagrees.
The decision is unusual only in that it involves Twitter, a relatively new form of public, interactive communication, and the President. However, the opinion is consistent with every precedent of this Court, and the dissent does not demonstrate otherwise. It is, I respectfully suggest, a straightforward application of state action and public forum doctrines, congruent with Supreme Court precedent. The dissent misconstrues the applicable law and overstates the scope of the panel's holding.
The dissent's main concern—and its primary argument—is that the Account is the President's personal account and therefore is not a public forum and its use does not constitute state action. This argument is refuted by even a cursory perusal of examples of the tweets in question. Consider these recent ones:
218*218
These tweets are published by a public official clothed with the authority of the state using social media as a tool of governance and as an official channel of communication on an interactive public platform. The panel decision discussed the President's use of the Account in an official capacity in detail. See Knight, 928 F.3d at 232. Excluding people from an otherwise public forum such as this by blocking those 219*219 who express views critical of a public official is, we concluded, unconstitutional viewpoint discrimination. Id. at 234.
I.
The dissent contends that the President's use of the Account to conduct official business does not amount to state action. While the dissent does not dispute that the Account is regularly used as an official channel of communication, it argues that no state action is involved because the President does not exercise "some right or privilege created by the State" when he blocks accounts on Twitter. Knight First Amendment Inst. at Columbia Univ. v. Trump, 928 F.3d 226 (2d Cir. 2019) (Park, J., dissenting from the denial of rehearing en banc, at 226) [hereinafter Dissent]. Satisfaction of this condition is said to be required by our decision in Flagg v. Yonkers Sav. & Loan Ass'n, FA, 396 F.3d 178, 186 (2d Cir. 2005).
I do not agree. The state action analysis of the panel was correct. When the President tweeted about Iran he was speaking in his capacity as the nation's chief executive and Commander-in-Chief. If that is not a "right or privilege created by the State" it is difficult to imagine what might be. By the same token, when he receives responses from the public to the Account, and when he blocks responders whose views he disfavors, he remains the President. The critical question in this case is not the nature of the Account when it was set up a decade ago. The critical question for First Amendment purposes is how the President uses the Account in his capacity as President.
The Supreme Court in Lugar v. Edmondson Oil Co. identified the test for state action as whether the conduct allegedly causing the deprivation of a federal right is "fairly attributable to the State." 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982). Edmondson Oil instructs us that, where the claim of a constitutional deprivation is directed against a

party whose official character is such as "to lend the weight of the State to his decisions," the conduct is state action because it is "fairly attributable to the State." Id. The President quintessentially qualifies as a party whose "official character... lends the weight of the State to his decisions." Id. That, of course, holds true of his current use of Twitter.[1]
The dissent further contends that "the panel decision blurred the line between actions by public officials in the performance of their official duties and actions `in the ambit of their personal pursuits.'" Dissent at 228. This ignores the detailed discussion the panel provided concerning the "substantial and pervasive government involvement with, and control over," the Account. Knight, 928 F.3d at 235. That discussion noted that the President and his staff use the Account as an official channel of communication with the public on matters of public concern. Press Secretary Sean Spicer confirmed that the President's tweets are official statements of the President. 220*220 White House staff members are involved in the drafting and posting of tweets to the Account, and the National Archives and Records Administration requires the preservation of the President's tweets as official records under the Presidential Records Act. Id. None of this is in dispute.
The dissent states that because "blocking" is a feature available to all users, it cannot be state action. Dissent at 226-27. The panel addressed this argument when the Appellants made it, and the dissent's reiteration breaks no new ground. See Knight, 928 F.3d at 23536. What the dissent never seriously engages with is that when the President blocks users, he blocks them from access to, and interaction with, an official account.
The decision was careful to address the areas that generate the dissent's anxiety. We did not consider or decide whether a public official violates the Constitution by excluding persons from a personal, private social media account. Nor did we decide how the First Amendment impacts private social media accounts used by public officials. Knight, 928 F.3d at 236. We held only that the First Amendment does not permit a government official who utilizes a social media platform for official purposes to exclude persons from an otherwise open dialogue merely because they expressed views disfavored by the official.
II.
In Packingham v. North Carolina Justice Kennedy discussed the relationship between Twitter and the First Amendment. He said that "[w]hile in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the vast democratic forums of the Internet in general, and social media in particular.... [O]n Twitter, users can petition their elected representatives and otherwise engage with them in a direct manner.... In short, social media users employ these websites to engage in a wide array of protected First Amendment activity on topics as diverse as human thought." ___ U.S. ___, 137 S. Ct. 1730, 1735-36, 198 L.Ed.2d 273 (2017). If Justice Kennedy is right, as I believe he is, then the dissent is wrong.
Keeping the Supreme Court's words in mind, the panel concluded that the "interactive space" of the Account was a public forum for the purposes of the First Amendment. Knight, 928 F.3d at 237. The dissent articulates two concerns with our public forum analysis. Its first objection is to the "disaggregation" of the President's tweets from the

interactive features of the Account. Dissent at 229. The second objection is that the President did not change the way he uses Twitter after he took office, and therefore he could not have intended to create a public forum. Dissent at 228-29, 230. Again, I respectfully disagree.
A.
First, the dissent worries that the panel "strayed from" this Court's precedent (which is never specifically identified) when it distinguished between the President's tweets, which it categorizes as government speech, and the `interactive space' accessible to the public, which the panel concluded constituted a public forum. Dissent at 226. The point of departure of our analysis was that "whatever the challenges of applying the Constitution to ever-advancing technology, `the basic principles of freedom of speech and the press, like the First Amendment's command, do not vary' when a new and different medium for communication appears." Knight, 928 F.3d at 237 (quoting Brown v. Entm't Merchants 221*221 Ass'n, 564 U.S. 786, 790, 131 S.Ct. 2729, 180 L.Ed.2d 708 (2011)).
A simple analogy to physical public fora makes it clear that the distinction between a tweet and its interactive space is appropriate: at a town hall meeting held by public officials, statements made by the officials are protected government speech. If, however, public comment is allowed at the gathering—as it is on any tweet posted to the Account—the officials may not preclude persons from participating in the debate based on their viewpoints. Significantly, that discrimination is impermissible even when the public forum is limited and is "of [the State's] own creation." Rosenberger v. Rector and Visitors of University of Virginia, 515 U.S. 819, 829, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995); see also Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983) ("The Constitution forbids a state to enforce certain exclusions from a forum generally open to the public even if it was not required to create the forum in the first place"). Of course, a public forum need not be "spatial or geographic" and even if the forum is metaphysical, "the same principles are applicable." Knight, 928 F.3d at 237 (quoting Rosenberger, 515 U.S. at 830, 115 S.Ct. 2510).
Without citing any authority, the dissent writes that "[i]f an official gives remarks and allows for participation by supporters of the government's policies, that would not require opening the floor to opponents." Dissent at 229. That example has nothing to do with the facts before us. Here, the President makes official statements on a platform that allows anyone— not just his supporters—to comment and engage with his statements and with each other. In any event, the line of argument pursued by the dissent is directly contradicted by the Supreme Court: "As soon as municipal officials are permitted to pick and choose ... the path is cleared for a regime of censorship under which full voice can be given only to those views which meet with the approval of the powers that be." Se. Promotions, Ltd. v. Conrad., 420 U.S. 546, 563, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975); see also Rosenberger, 515 U.S. at 829, 115 S.Ct. 2510 (stating that viewpoint discrimination is "an egregious form of content discrimination"). The dissent's contention that a public official could selectively exclude questioners with viewpoints that are disfavored by the official is inconsistent with the First Amendment. "It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys... Discrimination against speech because of

its message is presumed to be unconstitutional." Rosenberger, 515 U.S. at 828, 115 S.Ct. 2510.
B.
The dissent, citing Arkansas Educ. Television Comm'n v. Forbes, contends that we apply public forum precedent to the President's use of the Account in a `mechanical way.' 523 U.S. 666, 672-73, 118 S.Ct. 1633, 140 L.Ed.2d 875 (1998). I disagree. In Forbes the Supreme Court observed that the public forum doctrine first arose in the context of streets and parks, and warned against a "mechanical" extension of the doctrine to television broadcasting. Id. Forbes identified two features of parks and streets that television broadcasting does not share: "open access" and "viewpoint neutrality." The Court found that, because television channels create and publish their own content, they "are not only permitted, but indeed required, to exercise substantial editorial discretion in the selection and presentation of their programming." Id. at 673, 118 S.Ct. 1633.
Twitter possesses both critical attributes identified by the Court in Forbes that public 222*222 broadcasting lacked. First, Twitter is open to the general public. The only limitation Twitter places on creating an account is age-based: those under 13 years of age may not use its services. See Twitter Terms of Service at twitter.com/tos (last visited March 6, 2020). Second, Twitter is neutral with respect to viewpoint; it is a platform on which the users publish their views.[2]
C.
Finally, the dissent argues that because the Account was created as a personal one in 2009 it cannot now be a public forum. Dissent at 230. As I mentioned, the dispositive consideration is not what the Account may have been in the past, but what it is now. Consider another recent tweet:
As with the tweet concerning Iran, I believe that under no rational view can tweets such as these be considered "personal."
In determining whether the government has "intentionally opened a nontraditional forum for public discourse" the Court looks to the "policy and practice of the government" as well as "the nature of the property and its compatibility with expressive activity." Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985); see also Knight, 928 F.3d at 237-39. The Account 223*223 constitutes a public forum under both considerations the Supreme Court prescribed for forum analysis in Cornelius. As the panel noted, "[o]pening an instrumentality of communication `for indiscriminate use by the general public' creates a public forum." Knight, 928 F.3d at 237 (quoting Perry Edu. Ass'n, 460 U.S. at 47, 103 S.Ct. 948). The President, upon assuming office, has "repeatedly used the Account as an official vehicle for governance and made its interactive features accessible to the public without limitation." Id. I continue to believe that this assessment is correct.[3] Importantly, even if the Account were a non-public forum, excluding individuals who express disfavored views is not permitted. Cornelius, 473 U.S. at 806, 105 S.Ct.

3439; see also Minn. Voters Alliance v. Mansky, ___ U.S. ___, 138 S. Ct. 1876, 1885, 201 L.Ed.2d 201 (2018).
Twitter is undoubtedly a forum compatible with expressive activity. Navigating to Twitter's "About" page (about.twitter.com) reveals a list of statements concerning its purpose: "Spark a global conversation." "See what people are talking about." In Hague v. C.I.O., the Court noted that public fora are "used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." 307 U.S. 496, 515, 59 S.Ct. 954, 83 L.Ed. 1423 (1939). As the Court noted in Packingham v. North Carolina, that is precisely what social media platforms do. 137 S. Ct. at 1735-36. Twitter is no exception.
III.
The dissent asserts that, while the President's tweets are official speech, other uses of the Account, such as blocking, somehow cause the Account to revert to a personal account. The dissent goes on to insist the panel's disaggregation of the Account's tweets and interactive space is "artificial" and that Twitter itself makes no such distinction. Dissent at 229. This argument misunderstands how the platform operates. Twitter accounts include a bundle of features. They come with every account and are available to every Twitter user. Neither government officials nor anyone else is able to individually tailor the features of their accounts. If one navigates to the "Twitter Rules" webpage, a hyperlink at the top of the page labeled "Using Twitter"[4] leads to the following:
224*224
Each phrase is a hyperlink to a new page with a detailed explanation of the feature listed. Because every Twitter account comes with every feature listed, the ability to tweet always includes the ability to reply or block. The interactive functions are what you get when you open a Twitter account. The dissent never explains how an account used for official government speech turns into a personal account simply because its user limits who is allowed to see and respond to that speech.
In addition, new features recently announced by Twitter highlight the distinction that the panel correctly made but that the dissent characterizes as "artificial." Dissent at 229. One of those features will soon allow Twitter users to limit who can reply to their tweets. These features will allow users to set reply functions to "Global, Group, Panel, and Statement." Global is the current default (and only) setting for public Twitter accounts.[5] The Group setting will allow those who follow the account and those @-mentioned[6] in a tweet to reply, while the Panel setting allows only users @-mentioned in a tweet to reply. The Statement setting does not allow anyone to reply, functionally severing the "interactive space" of the replies from the speech of the tweet itself. The dissent is thus incorrect to contend that Twitter itself does not distinguish between "initial tweets" and "interactive spaces." On the contrary, it is continuing to make the bounds of those interactive spaces more sophisticated and an even more integral part of Twitter.
IV.

The dissent repeatedly misconstrues the scope of the holding in Knight. It worries 225*225 that the opinion "will reach far beyond the Oval Office, creating uncertainty about the use of social media by public officials at every level of government." Dissent at 230. These alarms ring hollow. None of these fears have come to fruition since the publication of the opinion. While the dissent worries that "this decision will have the unintended consequence of creating less speech," it points to no marked change to how public officials use social media since the opinion was published.[7]
In fact, just the opposite has occurred. In the past few months, the President has been posting on Twitter at more than three times the rate he was tweeting in 2017. These tweets cover subjects as diverse as military actions, immigration policies, and senior staffing changes, among other major official announcements. Twitter is not just an official channel of communication for the President; it is his most important channel of communication.[8]
V.
Federal Rule of Appellate Procedure 35 provides that an en banc rehearing "will not be ordered unless (1) en banc consideration is necessary to secure or maintain uniformity of the court's decisions; or (2) the proceeding involves a question of exceptional importance." The dissent fails to offer anything beyond conclusory claims that either standard is met in this case.
A distinctive feature of the Second Circuit is its infrequency of rehearing cases en banc. Judge Jon O. Newman has explained that this approach is grounded in the view, "strongly held by all members of the court, that in bancs are normally not a wise use of judicial resources." Jon O. Newman, In Banc Practice in the Second Circuit, 1984-1988, 55 BROOK. L. REV. 355, 369 (1989). I, for one, agree with these views. Judge Newman went on to stress that the collegiality of this Court, and its relative lack of the "vitriolic language unfortunately found in the writings of some other appellate courts," is promoted by the infrequency of en bancs. Id. He perceptively notes the benefits that flow to each of us from allowing panels to decide their own cases, and being reluctant to oversee the work of one's colleagues through en banc review. Judge Newman concluded his report on en banc practice in the Second Circuit with the following reflection:
As the membership of the court changes, there is always the possibility that the pattern of rare in bancs might change.... [T]hose coming onto the court ... will find a rather firmly established tradition. I hope that they—and all who observe the work of this Court— will appreciate the benefits that our 226*226 practice of infrequent in bancs has conferred upon our institution. Newman, supra, at 503.
I respectfully submit this statement to accompany the denial of rehearing en banc.
Michael H. Park, Circuit Judge, joined by Richard J. Sullivan, Circuit Judge, dissenting from the denial of rehearing en banc:

When public officials use personal social-media accounts to express their views, they do not engage in "state action." And the First Amendment's guarantee of free speech does not include a right to post on other people's personal social-media accounts, even if those other people happen to be public officials.
We have declined to rehear en banc a decision that extends the First Amendment to restrict the personal social-media activity of public officials. Because the panel opinion contravenes both our state-action and public-forum precedents, I respectfully dissent from the denial of rehearing en banc.
This case concerns the President's personal Twitter account, @realDonaldTrump, which he created in 2009, more than six years before taking office. The President "blocked" Plaintiffs from interacting with his account, and they sued, claiming a violation of the First Amendment. The panel held that (1) the President engaged in "state action" when he blocked Plaintiffs from @realDonaldTrump, and (2) the "interactive spaces" of the account—specifically, the thread of replies to each of the President's tweets, but not the tweets themselves—are a public forum. Therefore, the panel concluded that "the President violated the First Amendment when he used the blocking function [of his personal Twitter account] to exclude" individuals based on their viewpoints. Knight First Amendment Inst. at Columbia Univ. v. Trump, 928 F.3d 226, 239 (2d Cir. 2019).
This decision strays from our precedents, extends the scope of the First Amendment to encompass the personal social-media activity of government officials, and therefore merits review by the whole court.
I.
Although the panel opinion is correct, as the government concedes, that the President used his personal Twitter account to conduct official business, that does not end the state-action analysis. The panel opinion ignored an important part of the state-action test by failing to consider whether the President exercised "some right or privilege created by the State" when he blocked Plaintiffs from his personal Twitter account. Flagg v. Yonkers Sav. & Loan Ass'n, FA, 396 F.3d 178, 186 (2d Cir. 2005) (citation omitted). "[S]tate action requires both ... the exercise of some right or privilege created by the State ... and" the involvement of "a person who may fairly be said to be a state actor." Id. (emphases in original) (internal quotation marks omitted) (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999)). The "right or privilege" requirement is a well-established feature of state-action doctrine. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982); United States v. Int'l Bhd. of Teamsters, AFL-CIO, 941 F.2d 1292, 1296 (2d Cir. 1991).[1]
227*227 The President did not exercise a "right or privilege created by the State" when he blocked Plaintiffs, and the panel erred in ignoring this requirement. Because Twitter is privately owned and controlled, a public official's use of its features involves no exercise of state authority. Twitter, Inc.—not President Trump or the United States—controls the platform and regulates its use for everyone. In "blocking" Plaintiffs, the President used a Twitter feature available equally to every other user, so his actions were not "fairly attributable to the State." Flagg, 396 F.3d at 186 (citation omitted). Therefore, the President

was not a state actor when he blocked users from his personal account. He could block users from that account before assuming office and can continue to do so after he leaves the White House. He "exercised no special powers possessed by virtue of ... law" when blocking users, "nor were his actions made possible only because he was clothed with the authority" of law. Colombo v. O'Connell, 310 F.3d 115, 118 (2d Cir. 2002) (per curiam) (cleaned up).[2] By ignoring this requirement, the panel decision deviated from this Court's state-action precedents. See Fed. R. App. P. 35(a)(1).
None of the evidence emphasized by the panel undermines this point. The panel pointed to numerous instances when the President tweeted about his work in office, but that is not enough to make his personal account a "right or privilege created by the State." Such a rule would preclude government officials from discussing public matters on their personal accounts without converting all activity on those accounts into state action.[3]
In addition, the panel's reasoning—that because the President tweets in an official capacity, his use of Twitter's blocking function is state action—operates at the wrong level of analysis. The panel focuses on the status of the entire account—i.e., whether the President's use of Twitter transformed his personal account into an official account —rather than examining the specific 228*228 action at issue—i.e., whether blocking Plaintiffs from accessing the interactive features of his personal Twitter account amounts to state action. But this Court has explained that we should "look to the nature of the officer's act, not simply his duty status." Pitchell v. Callan, 13 F.3d 545, 548 (2d Cir. 1994). By departing from the law of state action, the panel decision blurred the line between actions by public officials in the performance of their official duties and actions "in the ambit of their personal pursuits." Id. at 548 (quoting Screws v. United States, 325 U.S. 91, 111, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945)). And by fixating on the President's recent tweets, the panel opinion and the concurrence fall into a logical fallacy—i.e., that some official use of a Twitter account turns all use, or even all tweets, into state action. Our precedent calls for a more nuanced analysis that focuses on the specific feature at issue, which is the President's ability to block users.
Finally, the panel's reliance on evidence from the factual record unmoored from state-action doctrine introduces confusion about when a public official's personal social-media activity becomes state action. For example, it is not clear from the panel's decision when President Trump's Twitter activity crossed into state action. Did it happen on Inauguration Day? Upon a particular "official announcement" from @realDonaldTrump? And how many "official" tweets does it take to convert "personal" tweets into state action? The panel decision raises difficult questions but provides little guidance for officials today or to litigants, lawyers, and judges tomorrow.
II.
Even assuming state action, the panel's application of First Amendment public-forum doctrine to @realDonaldTrump is a poor fit, as is the characterization of the account's "interactive spaces" as a public forum. The panel opinion's public-forum analysis strayed from precedent in two ways. First, it is well established that when the government engages in its own speech, it is permitted to "speak for itself" and to "select the views that it wants to express." Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 467-68, 129 S.Ct. 1125,

172 L.Ed.2d 853 (2009) (citations omitted). Thus, where government speech is at issue, forum analysis does not apply. Id. To avoid this result, the panel disaggregated the President's Twitter feed into his initial tweets, which it recognized as government speech, and "his supervision of the interactive features of the Account," which it excluded from that speech. Knight, 928 F.3d at 239. With this move, the panel concluded that the "interactive spaces" are a public forum. Id. at 234. But the panel cannot have it both ways, and the Supreme Court has warned against extending the public-forum framework in just this sort of "mechanical way." Ark. Educ. Television Comm'n v. Forbes, 523 U.S. 666, 672-73, 118 S.Ct. 1633, 140 L.Ed.2d 875 (1998).
Second, the panel opinion erred in finding that the President created a public forum by continuing to use Twitter's features the same way he did before taking office, even though "[t]he government `does not create a public forum by inaction or by permitting limited discourse.'" Perry v. McDonald, 280 F.3d 159, 167 (2d Cir. 2001) (emphases removed) (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985)).
A.
The Supreme Court has warned that we should be "wary of the notion that a partial analogy in one context," i.e. public-forum doctrine, "can compel a full range of decisions 229*229 in such a new and changing area." Denver Area Educ. Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727, 749, 116 S.Ct. 2374, 135 L.Ed.2d 888 (1996) (plurality opinion) (Breyer, J.). "Having first arisen in the context of streets and parks, the public forum doctrine should not be extended in a mechanical way" to new areas if it is not "compatible with [their] intended purpose." Forbes, 523 U.S. at 672-73, 118 S.Ct. 1633 (citation omitted). For example, the Supreme Court has noted the limited applicability of the publicforum framework to public television because "public broadcasting as a general matter does not lend itself to scrutiny under the forum doctrine." Id. at 675, 118 S.Ct. 1633.
The panel here engaged in just the sort of mechanical extension of the public-forum framework that the Supreme Court has warned against. To shoehorn Twitter into publicforum doctrine, the panel carved out "interactive spaces" from the tweets to which they are connected. It acknowledged that the tweets are government speech, but then applied public-forum doctrine to the "interactive spaces." This disaggregation of Twitter's features was wholly artificial—Twitter's own rules make no such distinction between "initial tweets" and "interactive spaces."[4] The panel then stretched the concept of a public forum, which was originally meant to ensure that "members of the public retain strong free speech rights when they venture into public streets and parks," to hold that the President may not use his personal account on a private company's website in a certain way. Pleasant Grove City, 555 U.S. at 469, 129 S.Ct. 1125. The panel engaged in this forced analysis because the personal social-media pages of government officials do "not lend [themselves] to scrutiny under the forum doctrine" the way a sidewalk or park might. Forbes, 523 U.S. at 675, 118 S.Ct. 1633.
A few examples illustrate the illogic of applying public-forum doctrine in connection with government speech. If an official gives remarks and allows for participation by supporters of the government's policies, that would not require opening the floor to opponents. Or if an

official distributes pamphlets and solicits letters from the public, that would not deprive the official of editorial discretion to select which responses to publish. Likewise, if tweeting an official message on a personal Twitter account were government speech, then it should not deprive a public official from blocking certain users. See, e.g., Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 576 U.S. 200, 135 S. Ct. 2239, 2251, 192 L.Ed.2d 274 (2015) ("The fact that private parties take part in the design and propagation of a message does not extinguish the governmental nature of the message or transform the government's role into that of a mere forum-provider."); see also Manhattan Cmty. Access Corp. v. Halleck, ___ U.S. ___, 139 S. Ct. 1921, 1937, 204 L.Ed.2d 405 (2019) (Sotomayor, J., dissenting) (noting that in the context of "government speech," "picking favored viewpoints is appropriately commonplace").
It would be illogical and impractical to apply forum doctrine to such scenarios by bifurcating government speech and "interactive spaces" to require the airing of competing views. That is because the purpose of such speech, including the "interactive spaces" that may accompany it, is to convey 230*230 the government's views, not to create a public forum.
B.
Second, the panel opinion erred in concluding that the President "intentionally" turned his Twitter account into a public forum. Knight, 928 F.3d at 237. It is well established that the government can create a public forum "only by intentionally opening a nontraditional forum for public discourse." Cornelius, 473 U.S. at 802, 105 S.Ct. 3439 (emphasis added). We have explained that "[t]he government `does not create a public forum by inaction or by permitting limited discourse.'" Perry, 280 F.3d at 167 (emphases omitted) (quoting Cornelius, 473 U.S. at 802, 105 S.Ct. 3439).
None of the factors considered by the panel indicates that the President intentionally opened his Twitter account to public discourse. The panel based its conclusion on factors such as the general public's access to the "interactive spaces," the ability of Twitter users to reply and retweet, the holding out of the account as a means the President employs to communicate, and the expressive activity in the interactive spaces. Knight, 928 F.3d at 23536. But none of these factors speaks to the President's intention, and the record is clear that Donald Trump set up @realDonaldTrump in 2009 to convey his own views, not to open a forum for public discourse. Nor are the "interactive spaces" of Twitter intended to provide open access for all. For one thing, only those with a Twitter account can retweet, reply, or like a tweet. Moreover, Twitter provides features like "blocking" precisely to enable users to limit access to and to curate activity on their accounts. Indeed, Twitter describes itself as "a place to share ideas and information, connect with your communities, and see the world around you," and it explains that "[i]n order to protect the very best parts of that experience, we provide tools designed to help you control what you see and what others can see about you, so that you can express yourself on Twitter with confidence."[5]
Under the panel's reasoning, if a public official speaks on a platform that automatically permits others to comment, then the official is responsible for creating a public forum. This is inconsistent with our holding that the government cannot create a public forum by "inaction" alone, and it illustrates how a strict application of public-forum doctrine is ill-suited for social media. See Perry, 280 F.3d at 167 (citation omitted).

III.
Courts should be circumspect in extending legal doctrines to new and evolving technologies outside the realm of judicial expertise. This is particularly true when the result may have significant implications for interactions between government officials and the public.
The panel opinion will reach far beyond the Oval Office, creating uncertainty about the use of social media by public officials at every level of government. Public officials today routinely maintain social-media accounts for official, personal, and campaign use, and they address issues of public concern on all of them. To be sure, the President's use of Twitter is unprecedented in some respects. But it is now commonplace for politicians to use personal accounts to promote their official activities. The key facts in this case—that the President had a personal Twitter account, that he used it to tweet on matters relating to 231*231 his office, and that the public was able to comment on his tweets—are not unique. Indeed, this case is just one of several similar lawsuits challenging the right of public officials to use personal social-media accounts in a private capacity. See, e.g., Hikind v. OcasioCortez, No. 1:19-cv-03956, 2019 WL 2994693 (E.D.N.Y. filed July 9, 2019) (suit against congresswoman for blocking user on personal Twitter account, since dismissed with the consent of the parties); Campbell v. Reisch, No. 2:18-CV-4129-BCW, 2019 WL 3856591 (W.D. Mo. Aug. 16, 2019) (suit against state legislator for blocking user on Twitter campaign page), appeal filed No. 19-2994 (8th Cir. Sept. 16, 2019); Leuthy v. LePage, No. 1:17-cv00296-JAW, 2018 WL 4134628 (D. Me. Aug. 29, 2018) (suit against governor for blocking user on Facebook); Garnier v. Poway Unified Sch. Dist., No. 17-cv-2215-W (JLB), 2019 WL 4736208 (S.D. Cal. Sept. 26, 2019) (suit against school officials for blocking residents on Facebook and Twitter).
Our decision in this case will affect how public officials may use social media, making them less able to defend themselves from hate and harassment. It will limit how public officials may act in a personal capacity in all aspects of their life, online or otherwise, by writing the "right or privilege" requirement out of state-action doctrine. And it will bind us to apply public-forum doctrine when analyzing social-media activity, even though the framework is a poor fit for how social media actually functions. These are issues of "exceptional importance" and merit review by the whole court. Fed. R. App. P. 35(a)(2).
The panel decision concludes with the statement that "the best response to disfavored speech on matters of public concern is more speech, not less." Knight, 928 F.3d at 240. Despite the concurrence's premature reassurances to the contrary, it seems likely to me that this decision will have the unintended consequence of creating less speech if the social-media pages of public officials are overrun with harassment, trolling, and hate speech, which officials will be powerless to filter. The panel's effort to extend public-forum doctrine to social media is a mismatch and highlights why courts "should be cautious in applying our free speech precedents to the internet" and thus "should proceed circumspectly, taking one step at a time." Packingham v. North Carolina, ___ U.S. ___, 137 S. Ct. 1730, 1744, 198 L.Ed.2d 273 (2017) (Alito, J., concurring in the judgment).
For these reasons, I respectfully dissent from the denial of rehearing en banc.

[1] The dissent misconstrues this statement of views as making the "extraordinary claim that everything the President does is state action or that the test for state action is different for the President." Dissent at 227 n.1. That is an inexplicable misreading of the analysis. What the dissent fails to ever seriously address is that when the President blocks users, he blocks them from access to an official account and from engaging in an otherwise open, public dialogue that is created by his use of Twitter to make official statements. Far from saying that everything the President does is state action, the panel narrowly concluded that the President runs afoul of the First Amendment when he prohibits individuals from speaking in an otherwise public, open forum in which he makes official statements.
[2] Section 230 of the Communications Decency Act explicitly allows social media websites (among others) to filter and censor content posted on their platforms without thereby becoming a `publisher.' 47 U.S.C. § 230(c)(1) ("No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider"). Understood correctly, Forbes thus underscores the accuracy of the panel's analysis.
[3] The panel's analysis is congruent with the Supreme Court's conclusion in Se. Promotions, Ltd. v. Conrad that a privately-owned theater under a long-term lease to the city was nonetheless "a public forum designed for and dedicated to expressive activities." 420 U.S. at 555, 95 S.Ct. 1239.
[4] This page can be found at help.twitter.com/en/using-twitter (last visited March 6, 2020).
[5] This allows any Twitter user except those blocked by the original tweeter's account to view and reply to the tweet. "Locked" or "Private" Twitter Accounts are viewable only by followers of the account, and their tweets cannot be "retweeted" by anyone, even followers.
[6] An @-mention creates a hyperlink in the tweet to the account named.
[7] The dissent cites four cases purportedly to illustrate and document the concerns that the panel decision is just one in a flood of similar lawsuits. Leuthy v. LePage was made moot before the panel even heard oral arguments in Knight. No. 1:17-cv-0029-JAW, 2018 WL 4134628 (D. Me. Aug. 29, 2018). Campbell v. Reisch was filed and argued before the decision of this panel was released. No. 2:18-cv-4129-BCW, 2019 WL 3856591 (W.D. Mo. Aug. 16, 2019). Hikind v. Ocasio-Cortez was recently settled. No. 1:19-cv-03956, 2019 WL 2994693 (E.D.N.Y. filed July 9, 2019). Garnier v. Poway Unified Sch. Dist., No. 17-cv-2215-W (JLB), 2019 WL 4736208 (S.D. Ca. Sept. 26, 2019) was filed in 2017, and cites to Knight repeatedly, agreeing at every step with the panel's analysis. In fact, Garnier underscores that the analysis of the panel in Knight can be applied in a straightforward manner to cases as they arise, even outside of our Circuit.
[8] The President's press secretaries have repeatedly responded to criticisms about the lack of press briefings by pointing out that the press has unprecedented access to him and that he "communicates directly with the American people," which is, of course, a reference to Twitter.
[1] Judge Parker's statement of views with respect to the denial of rehearing en banc (the "concurrence") misreads Edmondson Oil when it asserts that the President's actions were "fairly attributable to the State" because "[t]he President quintessentially qualifies as a party whose `official character ... lends the weight of the State to his decisions.'" Concurrence at 219 (citation omitted). Edmondson Oil does not support the extraordinary claim that everything the President does is state action or that the test for state action is different for the President. This language simply means that when the actor is a state official, the second prong of the state-action test is satisfied, so the only question is whether that official has "exercised some right or privilege created by the State." 457 U.S. at 937, 102 S.Ct. 2744. That is the same question here, which the panel opinion completely overlooks.
[2] The panel's reliance on Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975), is misplaced. There, it was undisputed that the government used facilities that were "under their control." Id. at 555, 95 S.Ct. 1239. So the Court had no reason to consider whether state action was at issue.
[3] For example, when incumbent officials run for reelection, we ordinarily understand them to be expressing a mix of personal and official views. But the panel's reasoning would seem to foreclose incumbents from selecting who can participate in campaign rallies, online groups, or personal events. Similarly, when officials make public statements about their faith or offer prayers, we do not understand them to be violating the Establishment Clause. See Van Orden v. Perry, 545 U.S. 677, 723, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005) (Stevens, J. dissenting) ("Our leaders, when delivering public addresses, often express their blessings simultaneously in the service of God and their

constituents. Thus, when public officials deliver public speeches, we recognize that their words are not exclusively a transmission from the government because those oratories have embedded within them the inherently personal views of the speaker as an individual member of the polity." (emphasis in original)). So too here. The mere fact that Donald Trump uses Twitter for both personal and official communication does not transform all of his Twitter activities into state action.
[4] The concurrence points to future updates to Twitter's platform that it believes will "highlight the distinction that the panel correctly made" between tweets and "interactive spaces." Concurrence at 224. But the possibility that relevant features may change even before this litigation has concluded should not comfort us, but make us wary of imposing rigid and potentially constricting legal frameworks on fast-evolving technologies.
[5] How to Control your Twitter Experience, Twitter, https://help.twitter.com/en/safety-andsecurity/control-your-twitterexperience (last visited Mar. 13, 2020).

 
 141 S.Ct. 1220 (2021)
Joseph R. BIDEN, Jr., President of the United States, et al. v.
KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY, et al.
No. 20-197.
Supreme Court of United States.
Decided April 5, 2021.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT.
The petition for a writ of certiorari is granted. The judgment is vacated, and the 1221*1221 case is remanded to the United States Court of Appeals for the Second Circuit with instructions to dismiss the case as moot. See United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950).
Justice THOMAS, concurring.
When a person publishes a message on the social media platform Twitter, the platform by default enables others to republish (retweet) the message or respond (reply) to it or other replies in a designated comment thread. The user who generates the original message can manually "block" others from republishing or responding.
Donald Trump, then President of the United States, blocked several users from interacting with his Twitter account. They sued. The Second Circuit held that the comment threads were a "public forum" and that then-President Trump violated the First Amendment by using his control of the Twitter account to block the plaintiffs from accessing the comment threads. Knight First Amdt. Inst. at Columbia Univ. v. Trump, 928 F.3d 226 (2019). But Mr. Trump, it turned out, had only limited control of the account; Twitter has permanently removed the account from the platform.
Because of the change in Presidential administration, the Court correctly vacates the Second Circuit's decision. See United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950). I write separately to note that this petition highlights the principal legal difficulty that surrounds digital platforms—namely, that applying old doctrines to new digital platforms is rarely straightforward. Respondents have a point, for example, that some aspects of Mr. Trump's account resemble a constitutionally protected public forum. But it seems rather odd to say that something is a government forum when a private company has unrestricted authority to do away with it.
The disparity between Twitter's control and Mr. Trump's control is stark, to say the least. Mr. Trump blocked several people from interacting with his messages. Twitter barred Mr. Trump

not only from interacting with a few users, but removed him from the entire platform, thus barring all Twitter users from interacting with his messages.[1] Under its terms of service, Twitter can remove any person from the platform—including the President of the United States—"at any time for any or no reason." Twitter Inc., User Agreement (effective June 18, 2020).
This is not the first or only case to raise issues about digital platforms. While this case involves a suit against a public official, the Court properly rejects today a separate petition alleging that digital platforms, not individuals on those platforms, violated public accommodations laws, the First Amendment, and antitrust laws. Pet. for Cert., O. T. 2020, No. 20-969. The petitions highlight two important facts. Today's digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors. Also unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties. We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms.
I
On the surface, some aspects of Mr. Trump's Twitter account resembled a public forum. A designated public forum is "property that the State has opened for 1222*1222 expressive activity by part or all of the public." International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678, 112 S.Ct. 2701, 120 L.Ed.2d 541 (1992). Mr. Trump often used the account to speak in his official capacity. And, as a governmental official, he chose to make the comment threads on his account publicly accessible, allowing any Twitter user—other than those whom he blocked— to respond to his posts.
Yet, the Second Circuit's conclusion that Mr. Trump's Twitter account was a public forum is in tension with, among other things, our frequent description of public forums as "government-controlled spaces." Minnesota Voters Alliance v. Mansky, 585 U.S. ___, ___, 138 S.Ct. 1876, 1885, 201 L.Ed.2d 201 (2018); accord, Pleasant Grove City v. Summum, 555 U.S. 460, 469, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009) ("government property and ... government programs"); Arkansas Ed. Television Comm'n v. Forbes, 523 U.S. 666, 677, 118 S.Ct. 1633, 140 L.Ed.2d 875 (1998) ("government properties"). Any control Mr. Trump exercised over the account greatly paled in comparison to Twitter's authority, dictated in its terms of service, to remove the account "at any time for any or no reason." Twitter exercised its authority to do exactly that.
Because unbridled control of the account resided in the hands of a private party, First Amendment doctrine may not have applied to respondents' complaint of stifled speech. See Manhattan Community Access Corp. v. Halleck, 587 U.S. ___, ___, 139 S.Ct. 1921, 1944, 204 L.Ed.2d 405 (2019) (a "private entity is not ordinarily constrained by the First Amendment"). Whether governmental use of private space implicates the First Amendment often depends on the government's control over that space. For example, a government agency that leases a conference room in a hotel to hold a public hearing about a proposed regulation cannot kick participants out of the hotel simply because they express concerns about the new regulation. See Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 547, 555, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975). But government officials who informally gather

with constituents in a hotel bar can ask the hotel to remove a pesky patron who elbows into the gathering to loudly voice his views. The difference is that the government controls the space in the first scenario, the hotel, in the latter. Where, as here, private parties control the avenues for speech, our law has typically addressed concerns about stifled speech through other legal doctrines, which may have a secondary effect on the application of the First Amendment.
A
If part of the problem is private, concentrated control over online content and platforms available to the public, then part of the solution may be found in doctrines that limit the right of a private company to exclude. Historically, at least two legal doctrines limited a company's right to exclude.
First, our legal system and its British predecessor have long subjected certain businesses, known as common carriers, to special regulations, including a general requirement to serve all comers. Candeub, Bargaining for Free Speech: Common Carriage, Network Neutrality, and Section 230, 22 Yale J. L. & Tech. 391, 398-403 (2020) (Candeub); see also Burdick, The Origin of the Peculiar Duties of Public Service Companies, Pt. 1, 11 Colum. L. Rev. 514 (1911). Justifications for these regulations have varied. Some scholars have argued that common-carrier regulations are justified only when a carrier possesses substantial market power. Candeub 1223*1223 404. Others have said that no substantial market power is needed so long as the company holds itself out as open to the public. Ibid.; see also Ingate v. Christie, 3 Car. & K. 61, 63, 175 Eng. Rep. 463, 464 (N. P. 1850) ("[A] person [who] holds himself out to carry goods for everyone as a business ... is a common carrier"). And this Court long ago suggested that regulations like those placed on common carriers may be justified, even for industries not historically recognized as common carriers, when "a business, by circumstances and its nature, ... rise[s] from private to be of public concern." See German Alliance Ins. Co. v. Lewis, 233 U.S. 389, 411, 34 S.Ct. 612, 58 L.Ed. 1011 (1914) (affirming state regulation of fire insurance rates). At that point, a company's "property is but its instrument, the means of rendering the service which has become of public interest." Id., at 408, 34 S.Ct. 612.
This latter definition of course is hardly helpful, for most things can be described as "of public interest." But whatever may be said of other industries, there is clear historical precedent for regulating transportation and communications networks in a similar manner as traditional common carriers. Candeub 398-405. Telegraphs, for example, because they "resemble[d] railroad companies and other common carriers," were "bound to serve all customers alike, without discrimination." Primrose v. Western Union Telegraph Co., 154 U.S. 1, 14, 14 S.Ct. 1098, 38 L.Ed. 883 (1894).[2]
In exchange for regulating transportation and communication industries, governments — both State and Federal—have sometimes given common carriers special government favors. Candeub 402-407. For example, governments have tied restrictions on a carrier's ability to reject clients to "immunity from certain types of suits"[3] or to regulations that make it more difficult for other companies to compete with the carrier (such as franchise licenses). Ibid. By giving these companies special privileges, governments place them into a

category distinct from other companies and closer to some functions, like the postal service, that the State has traditionally undertaken.
Second, governments have limited a company's right to exclude when that company is a public accommodation. This concept —related to common-carrier law—applies to companies that hold themselves out to the public but do not "carry" freight, passengers, or communications. See, e.g., Civil Rights Cases, 109 U.S. 3, 41-43, 3 S.Ct. 18, 27 L.Ed. 835 (1883) (HARLAN, J., dissenting) (discussing places of public amusement). It also applies regardless of the company's market power. See, e.g., 78 Stat. 243, 42 U.S. C. § 2000a(a).
B
Internet platforms of course have their own First Amendment interests, but regulations that might affect speech are valid if they would have been permissible at the 1224*1224 time of the founding. See United States v. Stevens, 559 U.S. 460, 468, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010). The long history in this country and in England of restricting the exclusion right of common carriers and places of public accommodation may save similar regulations today from triggering heightened scrutiny—especially where a restriction would not prohibit the company from speaking or force the company to endorse the speech. See Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 684, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) (O'CONNOR, J., concurring in part and dissenting in part); PruneYard Shopping Center v. Robins, 447 U.S. 74, 88, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980). There is a fair argument that some digital platforms are sufficiently akin to common carriers or places of accommodation to be regulated in this manner.
1
In many ways, digital platforms that hold themselves out to the public resemble traditional common carriers. Though digital instead of physical, they are at bottom communications networks, and they "carry" information from one user to another. A traditional telephone company laid physical wires to create a network connecting people. Digital platforms lay information infrastructure that can be controlled in much the same way. And unlike newspapers, digital platforms hold themselves out as organizations that focus on distributing the speech of the broader public. Federal law dictates that companies cannot "be treated as the publisher or speaker" of information that they merely distribute. 110 Stat. 137, 47 U.S. C. § 230(c).
The analogy to common carriers is even clearer for digital platforms that have dominant market share. Similar to utilities, today's dominant digital platforms derive much of their value from network size. The Internet, of course, is a network. But these digital platforms are networks within that network. The Facebook suite of apps is valuable largely because 3 billion people use it. Google search—at 90% of the market share—is valuable relative to other search engines because more people use it, creating data that Google's algorithm uses to refine and improve search results. These network effects entrench these companies. Ordinarily, the astronomical profit margins of these platforms—last year, Google brought in $182.5 billion total, $40.3 billion in net income—would induce new entrants into

the market. That these companies have no comparable competitors highlights that the industries may have substantial barriers to entry.
To be sure, much activity on the Internet derives value from network effects. But dominant digital platforms are different. Unlike decentralized digital spheres, such as the e-mail protocol, control of these networks is highly concentrated. Although both companies are public, one person controls Facebook (Mark Zuckerberg), and just two control Google (Larry Page and Sergey Brin). No small group of people controls e-mail.
Much like with a communications utility, this concentration gives some digital platforms enormous control over speech. When a user does not already know exactly where to find something on the Internet —and users rarely do—Google is the gatekeeper between that user and the speech of others 90% of the time. It can suppress content by deindexing or downlisting a search result or by steering users away from certain content by manually altering autocomplete results. Grind, Schechner, McMillan, & West, How Google Interferes With Its Search Algorithms and Changes Your Results, Wall Street Journal, Nov. 15, 2019. Facebook and Twitter can greatly narrow a person's information 1225*1225 flow through similar means. And, as the distributor of the clear majority of e-books and about half of all physical books,[4] Amazon can impose cataclysmic consequences on authors by, among other things, blocking a listing.
It changes nothing that these platforms are not the sole means for distributing speech or information. A person always could choose to avoid the toll bridge or train and instead swim the Charles River or hike the Oregon Trail. But in assessing whether a company exercises substantial market power, what matters is whether the alternatives are comparable. For many of today's digital platforms, nothing is.
If the analogy between common carriers and digital platforms is correct, then an answer may arise for dissatisfied platform users who would appreciate not being blocked: laws that restrict the platform's right to exclude. When a platform's unilateral control is reduced, a government official's account begins to better resemble a "government-controlled spac[e]." Mansky, 585 U.S., at ___, 138 S.Ct., at 1885; see also Southeastern Promotions, 420 U.S., at 547, 555, 95 S.Ct. 1239 (recognizing that a private space can become a public forum when leased to the government). Common-carrier regulations, although they directly restrain private companies, thus may have an indirect effect of subjecting government officials to suits that would not otherwise be cognizable under our public-forum jurisprudence.
This analysis may help explain the Second Circuit's intuition that part of Mr. Trump's Twitter account was a public forum. But that intuition has problems. First, if market power is a predicate for common carriers (as some scholars suggest), nothing in the record evaluates Twitter's market power. Second, and more problematic, neither the Second Circuit nor respondents have identified any regulation that restricts Twitter from removing an account that would otherwise be a "government-controlled space."
2

Even if digital platforms are not close enough to common carriers, legislatures might still be able to treat digital platforms like places of public accommodation. Although definitions between jurisdictions vary, a company ordinarily is a place of public accommodation if it provides "lodging, food, entertainment, or other services to the public ... in general." Black's Law Dictionary 20 (11th ed. 2019) (defining "public accommodation"); accord, 42 U.S. C. § 2000a(b)(3) (covering places of "entertainment"). Twitter and other digital platforms bear resemblance to that definition. This, too, may explain the Second Circuit's intuition. Courts are split, however, about whether federal accommodations laws apply to anything other than "physical" locations. Compare, e.g., Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 559 (C.A.7 1999) (Title III of the Americans with Disabilities Act (ADA) covers websites), with Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006, 1010-1011 (C.A.6 1997) (en banc) (Title III of the ADA covers only physical places); see also 42 U.S. C. §§ 2000a(b)-(c) (discussing "physica[l] locat[ions]").
Once again, a doctrine, such as public accommodation, that reduces the power of a platform to unilaterally remove a government account might strengthen the argument that an account is truly government controlled and creates a public forum. See 1226*1226 Southeastern Promotions, 420 U.S. at 547, 555, 95 S.Ct. 1239. But no party has identified any public accommodation restriction that applies here.
II
The similarities between some digital platforms and common carriers or places of public accommodation may give legislators strong arguments for similarly regulating digital platforms. "[I]t stands to reason that if Congress may demand that telephone companies operate as common carriers, it can ask the same of" digital platforms. Turner, 512 U.S. at 684, 114 S.Ct. 2445 (opinion of O'CONNOR, J.). That is especially true because the space constraints on digital platforms are practically nonexistent (unlike on cable companies), so a regulation restricting a digital platform's right to exclude might not appreciably impede the platform from speaking. See id., at 675, 684, 114 S.Ct. 2445 (noting restrictions on one-third of a cable company's channels but recognizing that regulation may still be justified); PruneYard, 447 U.S., at 88, 100 S.Ct. 2035. Yet Congress does not appear to have passed these kinds of regulations. To the contrary, it has given digital platforms "immunity from certain types of suits," Candeub 403, with respect to content they distribute, 47 U.S. C. § 230, but it has not imposed corresponding responsibilities, like nondiscrimination, that would matter here.
None of this analysis means, however, that the First Amendment is irrelevant until a legislature imposes common carrier or public accommodation restrictions— only that the principal means for regulating digital platforms is through those methods. Some speech doctrines might still apply in limited circumstances, as this Court has recognized in the past.
For example, although a "private entity is not ordinarily constrained by the First Amendment," Halleck, 587 U.S., at ___, ___, 139 S.Ct., at 1930, 1944, it is if the government coerces or induces it to take action the government itself would not be permitted to do, such as censor expression of a lawful viewpoint. Ibid. Consider government threats. "People do not lightly disregard public officers' thinly veiled threats to institute criminal proceedings against them if they do not come around." Bantam Books, Inc. v.

Sullivan, 372 U.S. 58, 68, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963). The government cannot accomplish through threats of adverse government action what the Constitution prohibits it from doing directly. See ibid.; Blum v. Yaretsky, 457 U.S. 991, 1004-1005, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982). Under this doctrine, plaintiffs might have colorable claims against a digital platform if it took adverse action against them in response to government threats.
But no threat is alleged here. What threats would cause a private choice by a digital platform to "be deemed ... that of the State" remains unclear. Id., at 1004, 102 S.Ct. 2777.[5] And no party has sued 1227*1227 Twitter. The question facing the courts below involved only whether a government actor violated the First Amendment by blocking another Twitter user. That issue turns, at least to some degree, on ownership and the right to exclude.
* * *
The Second Circuit feared that then-President Trump cut off speech by using the features that Twitter made available to him. But if the aim is to ensure that speech is not smothered, then the more glaring concern must perforce be the dominant digital platforms themselves. As Twitter made clear, the right to cut off speech lies most powerfully in the hands of private digital platforms. The extent to which that power matters for purposes of the First Amendment and the extent to which that power could lawfully be modified raise interesting and important questions. This petition, unfortunately, affords us no opportunity to confront them.
[1] At the time, Mr. Trump's Twitter account had 89 million followers.
[2] This Court has been inconsistent about whether telegraphs were common carriers. Compare Primrose, 154 U.S. at 14, 14 S.Ct. 1098, with Moore v. New York Cotton Exchange, 270 U.S. 593, 605, 46 S.Ct. 367, 70 L.Ed. 750 (1926). But the Court has consistently recognized that telegraphs were at least analogous enough to common carriers to be regulated similarly. Primrose, 154 U.S. at 14, 14 S.Ct. 1098.
[3] Telegraphs, for example, historically received some protection from defamation suits. Unlike other entities that might retransmit defamatory content, they were liable only if they knew or had reason to know that a message they distributed was defamatory. Restatement (Second) of Torts § 581 (1976); see also O'Brien v. Western Union Tel. Co., 113 F.2d 539, 542 (C.A.1 1940).
[4] As of 2018, Amazon had 42% of the physical book market and 89% of the e-book market. Day & Gu, The Enormous Numbers Behind Amazon's Market Reach, Bloomberg, Mar. 27, 2019.
[5] Threats directed at digital platforms can be especially problematic in the light of 47 U.S. C. § 230, which some courts have misconstrued to give digital platforms immunity for bad-faith removal of third-party content. Malwarebytes, Inc. v. Enigma Software Group USA, LLC, 592 U.S. ___, ___ - ___ 141 S.Ct. 13, 16-17, 208 L.Ed.2d 197 (2020) (THOMAS, J., statement respecting denial of certiorari). This immunity eliminates the biggest deterrent—a private lawsuit—against caving to an unconstitutional government threat.
For similar reasons, some commentators have suggested that immunity provisions like § 230 could potentially violate the First Amendment to the extent those provisions pre-empt state laws that protect speech from private censorship. See Volokh, Might Federal Preemption of Speech-Protective State Laws Violate the First Amendment? The Volokh Conspiracy, Reason, Jan. 23, 2021. According to that argument, when a State creates a private right and a federal statute pre-empts that state law, "the federal statute is the source of the power and authority by which any private rights are lost or sacrificed." Railway Employees v. Hanson, 351 U.S. 225, 232, 76 S.Ct. 714, 100 L.Ed. 1112 (1956); accord, Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 614-615, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989).