Knight First Amendment Institute at Columbia University et al v. Trump et al

Filing 72

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 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)

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,

MEMORANDUM AND ORDER
17 Civ. 5205 (NRB)

Plaintiffs,
- 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.
background

facts

regarding

Twitter

We first set forth the
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.
1

We conclude that

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

Amendment claims.

to

the

substance

of

plaintiffs’

First

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
Amendment.

viewpoint

discrimination

that

violates

the

First

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.”
4

Stip. ¶ 18.

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

retweeted.”

with

a

notation

indicating

that

the

post

was

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.”
5

Stip. ¶ 24.

Fourth, “[a]

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.
replies-to-replies
thread.’”

is

Stip. ¶ 23.

sometimes

The collection of replies and
referred

to

as

a

‘comment

“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.”
While

Stip. ¶ 29.
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.”
¶ 30.

Stip.

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
to Mute].3

[hereinafter

How

“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.”
B.

Id.

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

interacting with the public about his administration.

and

He also has

continued to use the account, on occasion, to communicate about
other

issues

business.”

not

directly

Stip. ¶ 32.

related

to

official

government

“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.”
Since

the

President’s

inauguration,

Stip. ¶ 36.

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.”
¶ 12.

Stip.

“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

Tillerson4

Rex

Veterans Affairs David Shulkin.5

and

then-Secretary

of

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

@realDonaldTrump account.”

threads
Stip. ¶ 39.

associated

with

the

“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

tweets,”

for

President

Trump’s

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.

threads

that

Replies-to-replies

originate

with

appear

@realDonaldTrump

in

the

tweets

comment
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.”
D.

Stip. ¶ 60.

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.
14

Staff at

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

@realDonaldTrump.”

@knightcolumbia,
Stip. ¶ 1.

and

this

account

follows

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.”
E.

Stip. ¶ 62.

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.
II.

We heard oral argument on March 8, 2018.

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,

is

the

“judicial

Power

of

the

United

States”

constitutionally limited to “Cases” and “Controversies.”
Const. art. III, § 2.

U.S.

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.”
party

invoking

federal

Id.

jurisdiction,

establishing these elements.”

Id.

“The plaintiff, as the
bears

the

burden

of

“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.”
U.S. at 561.

Defs. of Wildlife, 504

“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

. . .

continuing, present adverse effects.”
Lyons,

461

U.S.

95,

102

(1983)

if

unaccompanied

by

any

City of Los Angeles v.

(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
Id.7

future.”

“Although imminence is concededly a somewhat elastic concept,
it cannot be stretched beyond its purpose, which is to ensure that
the

alleged

purposes.”

injury

is

not

too

speculative

for

Article

III

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.

7

Clapper, 568

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

(SCRAP), 412 U.S. 669, 687 (1973)).

Regulatory

Agency

Procedures

“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).
21

Further, as long

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.
¶¶ 28-31, 54.

Stip.

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

concrete.

“intangible

injuries”

previously

See Spokeo, 136 S. Ct. at 1549.

determined

to

be

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.”
Welfare Rights Org., 426 U.S. 26, 41–42 (1976).

Simon v. E. Ky.

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
conduct.”

injury

be

fairly

traceable

to

the

defendant’s

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-in-

fact are not attributable to Sanders, and they accordingly lack
Article III standing to sue her.
41-42.

See, e.g., Simon, 426 U.S. at

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.”
¶ 12.

Stip.

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

continuing violation.

to,

or

responsibility

for,

the

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
officials.9

to

the

present

context

of

suits

against

federal

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

officials.”

respect

to

violations

of

federal

law

by

federal

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.
official’s

connection

to

the

ongoing

The defendant

violation,

see,

e.g.,

Parkell, 833 F.3d at 332; Pouncil, 704 F.3d at 576; Gonzalez, 663
F.3d

at

315;

Pugh,

571

traceability requirement.

F.

Supp.

2d

at

517,

satisfies

the

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
continuing,

injunctive
present

relief
adverse

. . .

if

effects.”

(quoting O’Shea, 414 U.S. at 495-96)).

unaccompanied
(omission

in

by

any

original)

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

standing

that

the

traceability

requirement

of

is

satisfied as to Scavino.
3.

The President

The record definitively establishes that the plaintiffs’
injuries-in-fact

are

actions.

President

“The

directly

traceable

blocked

[each

to
of

plaintiffs] from the @realDonaldTrump account.”

the
the

President’s
individual

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.

defendants

suggest,

Nor is this redressability undercut, as
by

the

President’s

ability

to

block

complete relief, as redressability would be lacking as an initial matter.
504 U.S. at 598 n.4 (Blackmun, J., dissenting).

31

See

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

subsequently.

President

could,

theoretically,

reblock

them

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.

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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.
that

the

Knight

Institute

has

We therefore conclude

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.
A.

Id.

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

punishment

of

to

which

criminal
have

Constitutional problem.”

conduct,

never

been

“the
thought

prevention
to

raise

and
any

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

workplace

drive

generally,

specifically,
constituted

rather

the

than

would-be

the

federal

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.
37, 46-47 (1983).

460 U.S.

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.
Supreme

Court

has

frequently

referred

to

While the

“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
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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

. . . .”).

@realDonaldTrump

account

That
as

is,

the

President

presents

being

a

presidential

account

the
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

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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

of

extent

forum

analysis

applies,

“[t]he

past

history

characterization of a forum may well be relevant; but that does
not

mean

a

disregarded.”

present

characterization

about

a

forum

may

be

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.
48

Indeed, the

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.
ISKCON,

505

U.S.

at

681

(“The

practices

of

privately

Cf.
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.
President

and

Scavino

use

the

Rather, because 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

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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
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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.”
205 (plurality opinion).19

Am. Library Ass’n, 539 U.S. at

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).

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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
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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

statements unrelated to official government business.”
¶ 38.

occasion
Stip.

Indeed, the content of the tweets sent by @realDonaldTrump

are solely the speech of the President or of other government

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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

@realDonaldTrump account.

created

by

each

tweet

sent

by

the

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.”
¶ 26.

Stip.

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.

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governmental one.
at 2248.

Matal, 137 S. Ct. at 1760; Walker, 135 S. Ct.

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.

together,

Ct.

at

2249.

Taken

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.

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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.
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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.”
U.S. at 801.

Cornelius, 473

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.

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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
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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

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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
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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,

President’s

tweets

accommodates a substantial body of expressive activity.

Stip.

¶¶ 41-43.

the

interactive

space

of

the

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 678-

79; see also Cornelius, 473 U.S. at 800.
62

Regardless of the

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

otherwise within the forum’s limitations.”

against

speech

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

criticized the President or his policies.”
continued

exclusion

of

the

individual

posted

tweets

that

Stip. at 1.

The

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

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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

government.
of

law,

no

right

to

have

their

views

amplified

by

the

While those propositions are accurate as statements

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.
547 U.S. 410, 417 (2006).

Cf. Garcetti v. Ceballos,

“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].”
385 U.S. 116, 136 (1966).

Bond v. Floyd,

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.
Cir. 1999).

X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 70 (2d

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.

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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,

(1984).

285

government’s

No

First

“challenged

Amendment

conduct

is

harm

simply

arises
to

when

ignore

a
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.
State Bd., 465 U.S. at 288.

Minn.

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
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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]

entirely.

or

reply[ing]

Stip. ¶ 28.

to

the

blocking

user’s

tweets”

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.

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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
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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.”
v. Fitzgerald, 457 U.S. 731, 753-54 (1982).

Nixon

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

‘ministerial’ duty.”

requiring

the

performance

of

a

purely

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
presented

this
by

case,
an

the

intrusion

injunction

on

directing

individual plaintiffs would be minimal.

executive
the

prerogative

unblocking

of

the

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.
70

Even

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

closely

an

unconstitutional

act

far

more

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

Mississippi v. Johnson.

discretionary

duty

considered

in

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
remain

relief

directed

available.

Government’s

parade

interference
directing

While

in
the

of

executive
President

at

Scavino

we

find

to

declaratory

entirely

horribles
affairs

and

unpersuasive

regarding

presented

comply

relief

by

with

the
an

the

judicial
injunction

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.
Sheet

&

Tube

Co.

v.

Sawyer,

343

U.S.

See, e.g., Youngstown
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

73

plaintiffs

from

the

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,

her

in

light

of

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.
under

the

That i~teractive space is susceptible to analysis

Supreme

Court's

forum

doctrines,

characterized as a designated public forum.

and

is

properly

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.
Court

is

directed

to

terminate

the

motions

The Clerk of the
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