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Knight First Amendment Inst. at Columbia Univ. v. Trump

United States Court of Appeals for the Second Circuit

March 23, 2020, Decided

No. 18-1691-cv

Opinion

 [*217]  Following disposition of this appeal on July 9, 2019, an active judge of the Court requested a poll [**2]  on whether to rehear the case en banc. A poll having been conducted and there being no majority favoring en banc review, rehearing en banc is hereby DENIED.

Barrington D. Parker, Circuit Judge, filed a statement with respect to the denial of rehearing en banc.

Michael H. Park, Circuit Judge, joined by Richard J. Sullivan, Circuit Judge, dissents by opinion from the denial of rehearing en banc.

Debra Ann Livingston and Susan L. Carney, Circuit Judges, took no part in the consideration or decision of this petition.

Concur by: Barrington D. Parker;

Concur

Barrington D. Parker, Circuit Judge, statement with respect to the denial of rehearing en banc.

This case arises from the President's use of the @realDonaldTrump Twitter account (the "Account") as a primary vehicle for his official communications. He uses this account to make official statements on a wide variety of subjects, many of great national importance. The public, in turn, is able to respond to and engage with the President and other users on Twitter. In Knight First Amendment Inst. at Columbia Univ. v. Trump, we concluded that this dialogue creates a public forum. 928 F.3d 226 (2d Cir. 2019). We also concluded that when the President creates such a public forum, he violates [**3]  the First Amendment when he excludes persons from the dialogue because they express views with which he disagrees.

The decision is unusual only in that it involves Twitter, a relatively new form of public, interactive communication, and the President. However, the opinion is consistent with every precedent of this Court, and the dissent does not demonstrate otherwise. It is, I respectfully suggest, a straightforward application of state action and public forum doctrines, congruent with Supreme Court precedent. The dissent misconstrues the applicable law and overstates the scope of the panel's holding.

The dissent's main concern—and its primary argument—is that the Account is the President's personal account and therefore is not a public forum and its use does not constitute state action. This argument is refuted by even a cursory perusal of examples of the tweets in question. Consider these recent ones:

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953 F.3d 216 *; 2020 U.S. App. LEXIS 9025 **

KNIGHT FIRST AMENDMENT INSTITUTE AT COLUMBIA UNIVERSITY, REBECCA BUCKWALTER, PHILIP COHEN, HOLLY FIGUEROA, EUGENE GU, BRANDON NEELY, JOSEPH PAPP, and NICHOLAS PAPPAS, Plaintiffs-Appellees, v. DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES and DANIEL SCAVINO, WHITE HOUSE DIRECTOR OF SOCIAL MEDIA AND ASSISTANT TO THE PRESIDENT, Defendants-Appellants, SARAH HUCKABEE SANDERS, WHITE HOUSE PRESS SECRETARY, Defendant.

CORE TERMS

Twitter, tweets, interactive, public forum, blocking, users, public official, spaces, state action, en banc, features, media, views, public-forum, social-media, reply, personal account, viewpoint, platform, state-action, government official, panel decision, realDonaldTrump, discourse, channel, doctrine of forum, respectfully, disfavored, mechanical, television