@realDonaldTrump: You can’t block people

It's unclear if President Donald Trump will heed a declaration issued in federal district court on May 23 that by blocking his critics on Twitter, he violates the Constitution, but the ruling itself [attached below] is a clear First Amendment victory in a legal sphere just beginning to take shape.

The decision reinforces the important principle that the president does not have special privileges that override others' First Amendment rights. It also establishes ground rules for government officials operating interactive social media accounts.

The ruling comes about 10 months after seven individual plaintiffs -- all "blocked" by @realDonaldTrump for their views -- and the Knight First Amendment Institute sued Trump and his aides for injunctive and declaratory relief.

Although Judge Naomi R. Buchwald stopped short of ordering Trump to unblock his critics, her careful analysis makes it clear that not even the president is above the law.

The crux of Buchwald's decision focused on Twitter's "inherently interactive" nature: The platform allows users to "reply" to tweets issued by other user's accounts, which in turn can lead to discussions among hundreds or thousands of users. The court rejected Trump's lawyers' argument that the entire @realDonaldTrump account constitutes "government speech" such that it is immune from First Amendment scrutiny. Instead, Buchwald found that the "interactive space" associated with each of the president's tweets constitutes a designated public forum -- a key holding because "viewpoint discrimination" is unconstitutional in such a setting. In other words, when the government establishes a forum for the exchange of views, it cannot pick and choose the views it will tolerate and banish the rest.

On this point, the court's analysis is exactly right. While Trump's tweets themselves are clearly "government speech" akin to a press release or other proclamation, the "interactive space" is not since "the government maintains no control over the content of the repl[ies]." Indeed, the reply function that permits thousands of members of the public to engage with Trump's tweets and other users' replies bears all the hallmarks of an online town hall. For decades, courts have routinely held that if a city council, for example, allows open-ended public comment during its meetings, it cannot forbid otherwise lawful speech based on the views expressed.

This ruling also underpins the principle that "the First Amendment recognizes, and protects against, even de minimis harms." Even though blocked users could find work-arounds that would allow them to see Trump's tweets and even tweet replies to some earlier replies to his tweets, the critics were blocked from the full functionality afforded favored discussants. As such, Trump and his social media aide Daniel Scavino restricted "a real, albeit narrow, slice of speech."

Whether or not Trump and Scavino comply with the court's declaration, it should resonate with all public entities as similar legal challenges surface across the country. In Davison v. Randall, for example, the 4th U.S. Circuit Court of Appeals is considering a lower court's ruling that a county board of supervisors chair violated an individual's First Amendment rights by blocking him from a personal Facebook page that she was using in an official capacity.

Such cases are significant in an increasingly digital world. While it is understandable that government officials might prefer to shield themselves from critical comments on their social media sites, to the extent those sites allow for members of the public to comment, long-standing public forum analysis should control: the officials may not prevent disfavored viewpoints from being heard. Indeed, speech critical of the government or its officials should be afforded the highest First Amendment protections.

To be sure, the president also enjoys First Amendment rights, but the court held those rights do not supersede or even conflict with those of the plaintiffs. In so holding, the court rejected Trump's lawyers' argument that requiring Trump to allow critics full access to the interactive part of his account violated Trump's personal First Amendment right of association. However, Trump's interest is clearly not implicated here, for Trump remains free to ignore any tweet with which he disagrees and is free to highlight or "retweet" perspectives he likes. Putting it another way, when Trump's First Amendment rights are not affected by the forum created by Twitter, he cannot ban Twitter users from participating in those discussions.

Out of considerations of comity for the Office of the President, the district court did not issue an injunction ordering compliance with its ruling. Rather, the court stated its belief that Trump, being obliged to follow constitutional dictates, would voluntarily comply with the decision of the court. If either Trump or Scavino refuses, the court no doubt will entertain a further motion for injunctive relief.

While the decision in Knight First Amendment Institute v. Trump is addressed solely to the interactive part of the @realDonaldTrump account, it creates an important precedent that other courts considering public access to public official's social media accounts will likely follow. As conflicts and controversies move online, restricting the power of government officials to censor opinions they dislike becomes evermore crucial in a constitutional democracy.