State” it is difficult to imagine what might be. By the same token, when he receives
responses from the public to the Account, and when he blocks responders whose views
he disfavors, he remains the President. The critical question in this case is not the nature
of the Account when it was set up a decade ago. The critical question for First
Amendment purposes is how the President uses the Account in his capacity as
President.
The Supreme Court in Lugar v. Edmondson Oil Co. identified the test for state
action as whether the conduct allegedly causing the deprivation of a federal right is
“fairly attributable to the State.” 457 U.S. 922, 937 (1982). Edmondson Oil instructs us
that, where the claim of a constitutional deprivation is directed against a party whose
official character is such as “to lend the weight of the State to his decisions,” the conduct
is state action because it is “fairly attributable to the State.” Id. The President
quintessentially qualifies as a party whose “official character . . . lends the weight of the
State to his decisions.” Id. That, of course, holds true of his current use of Twitter.1
The dissent misconstrues this statement of views as making the “extraordinary claim that
everything the President does is state action or that the test for state action is different for the
President.” Dissent at 3 n.1. That is an inexplicable misreading of the analysis. What the dissent
fails to ever seriously address is that when the President blocks users, he blocks them from
access to an official account and from engaging in an otherwise open, public dialogue that is
created by his use of Twitter to make official statements. Far from saying that everything the
President does is state action, the panel narrowly concluded that the President runs afoul of the
First Amendment when he prohibits individuals from speaking in an otherwise public, open
forum in which he makes official statements.
1
4