Should I Sue Donald Trump for Blocking Me on Twitter?

Trump
President Donald Trump attends a lunch meeting with members of Congress at the Cabinet Room on June 13. Carlos Barria/Reuters

Should I sue President Donald Trump for blocking me on Twitter?

I never expected to ask myself those words. But life is strange. And so is Twitter, especially when the president is involved.

Trump blocked me on June 15. I can't say exactly why, though it probably had something to do with my tweet mocking his use of the term "WITCH HUNT." (I told the president he should stop comparing himself to witches because it's an insult to them.) Soon I was blocked, and I later wrote an article about it.

The following day, I heard from a legal intern at the Knight First Amendment Institute. He wanted to know if I was interested in serving as a plaintiff in a potential lawsuit against Trump. The Knight Institute was founded at Columbia University in 2016 to defend free speech in the digital age. In recent weeks, the organization has turned its attention to Trump's Twitter fingers, arguing that because his account—@RealDonaldTrump—is "a designated public forum," citizens have a First Amendment right to respond to his tweets regardless of their political views.

On June 6, the Knight Institute sent a letter to Trump asking him to unblock two widely followed users—among others he's blocked for disagreeing with or ridiculing him. The organization threatened to file a lawsuit if the president didn't comply. 

Related: Why Trump blocked me on Twitter

I considered the invitation to join. Suing the president over a Twitter beef seemed like the kind of decision you shouldn't make lightly, like buying a house or sending nudes to an ex. I had some doubts. Even if I agree with the suit in principle, what if I like being blocked by Trump? It's kind of nice not having access to his account. For months on end, Trump's latest tweets were often the first thing I read in the morning. That didn't seem healthy. The mental energy I expended trying to think of a witty reply could be better spent on, well, anything else.

But this isn't about me. By blocking people who piss him off, Trump (or one of his staffers) is silencing his most vocal critics. (Speaking of silence, Trump's press office didn't respond to my request for comment.) Meanwhile, Trump seems to have ramped up his blocking spree in recent weeks. You might even call it a "WITCH HUNT!"

As I pondered what to do, I spoke with Katie Fallow, a senior fellow at the Knight Institute and one of the co-authors of the June 6 letter to Trump.

"No one's ever done this before," says Fallow, referring to Trump's Twitter blocking. "My understanding is that under Obama, no one was blocked from the @POTUS account. But the idea that a public official could block citizens from hearing their official speech just because they don't agree with what that person thinks is contrary to basic ideas of the First Amendment."

According to Fallow, Trump's blocking habit tramples on constitutional rights for two reasons: (1) it prevents blocked users from accessing official communication, and (2) it prevents certain people from being able to respond to Trump on the basis of their views. The relevant question is whether Trump's Twitter account—which is distinct from the @POTUS account—is an official forum. White House Press Secretary Sean Spicer has said the president's tweets are "official statements," which could have constitutional implications.

"We believe that the president operates his account for official business," Fallow tells me. "He uses it primarily to communicate with the public and in doing so creates a designated public forum. There's a long line of cases saying that the government can't exclude people from public forums based on their viewpoints." Fallow points to a Virginia case involving a man who was blocked from commenting on the Facebook page of a county supervisor. He filed suit, and the court agreed to let the case move forward.

So far, two Twitter users said they are willing to let the Knight Institute represent them: Holly O'Reilly (@AynRandPaulRyan) and Joe Papp (@joepabike). Both are verified anti-Trump tweeters with sizable followings, and both were blocked by the president in late May or early June. 

If you asked the framers of the Constitution if it's a First Amendment violation when the president blocks people on Twitter, they'd probably be, like, "Durrrr, what's Twitter? I've been dead for 200 years."

So I posed the question to a First Amendment lawyer instead. Wayne Giampietro is an attorney and a member of the First Amendment Lawyers Association. He seemed sympathetic to the case against Trump.

"Trump is the epitome of the government," Giampietro says in an email. "The First Amendment prohibits the government from stifling speech based on its content. If indeed Trump has made his Twitter account a limited public forum, as the Knight Institute argues, then there may well be a suit there."

He adds, "It could also be argued that cutting off those who would speak to the president are engaged in petitioning the government, as protected by the First Amendment, and prohibiting access to those who would petition the president because of the content of their speech violates the petition clause of the First Amendment."

Yet Saikrishna Prakash, a constitutional law expert who teaches at the University of Virginia law school, doubts the Knight Institute will be able to win over the courts. "To my knowledge, there's no Supreme Court precedent on when a Twitter account is a public forum," Prakash says. "Even if they're able to find a sympathetic judge, I think the plaintiffs will lose. It's not so much that they don't have a case. It's not like it's laughable. But ultimately, it won't succeed."

Even if the case could succeed, why bother joining the suit?

I posed that question to O'Reilly, a prolific Twitter user better known as @AynRandPaulRyan. She was blocked after tweeting a mocking GIF at Trump. Her tweets are frequently about politics and highly critical of the president. Now she has the hashtag #BlockedByTrump in her Twitter bio. O'Reilly made a bet with a few friends that Trump would double down on blocking people after receiving that June 6 letter. So far, she seems to be right.

I probably won't join the suit against Trump. I'm a journalist, and joining in active (or soon to be active) litigation seems like a conflict of interest. (Plus, I don't stand to gain all that much from being unblocked.) 

But O'Reilly plans to be involved. "If there is a suit, I will be one of the plaintiffs," she tells me via Twitter. "There is vast, uncharted legal territory for First Amendment rights as it pertains to social media. If it helps bring some structure and framework to the laws that future First Amendment challenges will bring, I'm happy to help."

Another reason?

"I fucking hate Trump," O'Reilly adds. "It doesn't hurt that he's such an asshole."