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 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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