This ruling on the Administration's blocking of Twitter followers it's interesting:
https://knightcolumbia.org/sites/default...pinion.pdf
A few thoughts:
- I like this opinion a lot. In particular I think it does a good job addressing the threshold question that is the key to the whole case: whether blocking of Twitter followers constitutes a
restriction on speech, and a
governmental restriction at that. As the court noted, "Whether First Amendment concerns are triggered when a public official uses his account . . . will in most instances be a fact‐specific inquiry." Opinion at 20. It was undoubtedly helpful in this case that "The facts in this case are not in dispute as the case was resolved below on stipulated facts." Id. a 4 n.1. That makes for a really clean opinion.
When I first heard about the decision, I was curious as to how the court had addressed the threshold inquiry. Having read the opinion, I think they did it well -- succinctly but persuasively.
- Once the threshold question was answered, the end result was, as the opinion notes, fairly straightforward: "Once it is established that the President is a government actor with respect to his use of the Account, viewpoint discrimination violates the First Amendment." Id. at 21.
- Since the decision was announced, I've seen a number of folks lauding it because it limits something Trump did. Of course, it will equally limit a future president (e.g. a Democrat) from blocking followers based on viewpoints that the president finds objectionable, and it's easy to imagine how distasteful and "block worthy" such viewpoints might seen. Sadly but perhaps predictably, this seemingly obvious observation was unwelcome (to put it mildly) in some quarters. But as the court concluded, "In resolving this appeal, we remind the litigants
and the public that if the First Amendment means anything, it means that the best response to disfavored speech on matters of public concern is more speech, not less." Id. at 29 (emphasis added).
- In case anyone's curious, the judge who wrote the opinion was appointed to the Second Circuit by GW Bush, as was one of the other judges on the panel. The third was an Obama appointee. It turns out that every Circuit Judge has a Wikipedia article, and according to those, each of these three judges breezed through confirmation to the Second Circuit: one 88-0, one 100-0, and one by uncounted voice vote, Those were the days!