These tweets are published by a public official clothed with the authority of the state
using social media as a tool of governance and as an official channel of communication
on an interactive public platform. The panel decision discussed the President’s use of
the Account in an official capacity in detail. See Knight, 928 F.3d at 232. Excluding
people from an otherwise public forum such as this by blocking those who express
views critical of a public official is, we concluded, unconstitutional viewpoint
discrimination. Id. at 234.
I.
The dissent contends that the President’s use of the Account to conduct official
business does not amount to state action. While the dissent does not dispute that the
Account is regularly used as an official channel of communication, it argues that no
state action is involved because the President does not exercise “some right or privilege
created by the State” when he blocks accounts on Twitter. Knight First Amendment Inst.
at Columbia Univ. v. Trump, 928 F.3d 226 (2d Cir. 2019) (Park, J., dissenting from the
denial of rehearing en banc, at 2) [hereinafter Dissent]. Satisfaction of this condition is
said to be required by our decision in Flagg v. Yonkers Sav. & Loan Ass’n, FA, 396 F.2d
178, 186 (2d Cir. 2005).
I do not agree. The state action analysis of the panel was correct. When the
President tweeted about Iran he was speaking in his capacity as the nation’s chief
executive and Commander‐in‐Chief. If that is not a “right or privilege created by the
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