The DOJ is defending Trump's right to block people, even as they agree that he uses Twitter to make official government proclamations.
Donald Trump can dish it out, but he can't take it. Which is why he blocks people on Twitter.
And he's so sensitive about his right to do so that he's got the Department of Justice representing him at the Second Circuit Court of Appeals. Trump's desperately hoping that the court will overturn a lower court decision that has prevented him from blocking critics since May 2018.
Given the questions from the three-judge panel at the Second Circuit on Tuesday, things don't look good for Trump's gaining his right to remain thin-skinned.
Back in 2017, seven people that Trump blocked on Twitter, along with the Knight First Amendment Institute, sued to force him to unblock them, arguing that Trump's Twitter feed was an official government channel.
In 2018 a judge sided with them, ruling that Trump's Twitter feed was a public forum. You can't block members of the public from learning about the workings of their government, period. Since Trump uses Twitter to make official proclamations, blocking people from seeing them, or from tweeting at him about them, is unconstitutional.
In a normal administration, that would have been the end of it. Instead, Trump has doubled down and appealed the case, fighting mightily for the right to block people that he doesn't like.
The Justice Department lawyer, Jennifer Utrecht, had to make some incredibly convoluted arguments to try to defend Trump. She started by explaining that Trump's Twitter account, because it existed prior to Trump taking office, couldn't be a public forum. Instead, she said, it is more like Mar-a-Lago or George W. Bush's ranch in Texas.
When that strange argument didn't quite land, she tried saying that Trump's Twitter account isn't a forum of any sort, but is instead "an account that has been opened up as a platform for his own speech."
The judges didn't buy that at all. One pointed out that Trump uses his account for official actions like revoking sanctions against North Korea and announcing the recognition of Golan Heights as Israeli territory.
Another judge noted that if Trump tweets in his capacity as a private citizen, not the president, the DOJ shouldn't be representing him for that. "If you are arguing that, it's curious to me that the Department of Justice is here representing essentially a private entity," said U.S. Circuit Judge Peter Hall.
That judicial skepticism forced Utrecht to change her approach yet again, and she hit on the outlandish idea of arguing that Trump tweets in an official capacity, but "when he blocks individuals from his personal Twitter account ... is doing so in his personal capacity." She even confirmed that Trump personally does that blocking.
These are great lengths to go to just to insulate Trump from the occasional mean word or joke at his expense. Apparently, he's just that delicate.
Published with permission of The American Independent Foundation.