President Donald Trump cannot block Twitter critics from his @realDonaldTrump account, a federal appeals panel ruled Tuesday.

The New York-based 2nd U.S. Circuit Court of Appeals said the president’s Twitter account creates a public forum, and blocking users based on viewpoint violates the First Amendment. The decision tees up a possible appeal to the Supreme Court.

“We do conclude, however, that the First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise‐open online dialogue because they expressed views with which the official disagrees,” Judge Barrington Parker wrote for the court.

“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,” Parker wrote elsewhere.

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The Knight First Amendment Institute at Columbia University organized the lawsuit, recruiting several individuals whom the president blocked to serve as plaintiffs. U.S. District Judge Naomi Reice Buchwald found for the plaintiffs in May 2018, finding the account created a “public forum,” a legal term meaning a space in which First Amendment protections are at their highest.

Buchwald did not find that the @realDonaldTrump account is itself a public forum — rather, she said each individual tweet, and the thousands of replies that follow, are a public forum subject to the First Amendment. The 2nd Circuit affirmed that conclusion.

“The account was intentionally opened for public discussion when the president, upon assuming office, repeatedly used the account as an official vehicle for governance and made its interactive features accessible to the public without limitation,” the decision reads. “We hold that this conduct created a public forum.”

The Department of Justice argued that the handle is a private, personal account that is not subject to First Amendment constraints. Even if the account establishes a public form, the government continued, blocking users is not problematic because they can still access the president’s tweets by other means. Alternatively, the account is actually government speech where viewpoint neutrality is not required, the Department concluded.

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The 2nd Circuit rejected those arguments, noting that senior White House officials have described the @realDonaldTrump handle as an official account, answered congressional records requests with references to the account, and a medium through which to communicate major policy decisions like the ban on transgender military personnel. The National Archives has determined that tweets from the handle are subject to the Presidential Records Act, Parker notes.

“The public presentation of the account and the webpage associated with it 13 bear all the trappings of an official, state‐run account,” the decision reads.

“Public officials’ social media accounts are now among the most significant forums for discussion of government policy,” said Jameel Jaffer, executive director of the Knight Institute. “This decision will ensure that people aren’t excluded from these forums simply because of their viewpoints, and that public officials aren’t insulated from their constituents’ criticism.”

The Justice Department has not yet responded to requests for comment. The government can ask the full 2nd Circuit to review the decision, or appeal to the Supreme Court.

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