18-1691-cv Knight First Amendment Institute, et al. v. Donald J. Trump, et al. 18‐1691‐cv Knight First Amendment Institute, et al. v. Donald J. Trump, et al. United States Court of Appeals FOR THE SECOND CIRCUIT At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 23rd day of March, two thousand twenty. PRESENT: ROBERT A. KATZMANN, Chief Judge, JOSÉ A. CABRANES, ROSEMARY S. POOLER, PETER W. HALL, DENNY CHIN, RAYMOND J. LOHIER, JR., RICHARD J. SULLIVAN, JOSEPH F. BIANCO, MICHAEL H. PARK, Circuit Judges. 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. No. 18‐1691‐cv DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES and DANIEL SCAVINO, WHITE HOUSE DIRECTOR OF SOCIAL MEDIA 1 AND ASSISTANT TO THE PRESIDENT, Defendants‐Appellants, SARAH HUCKABEE SANDERS, WHITE HOUSE PRESS SECRETARY, Defendant. For Plaintiffs‐Appellees: Jameel Jaffer (Katherine Fallow, Caroline DeCell, Alexander Abdo, Meenakshi Krishnan, on the brief), Knight First Amendment Institute at Columbia University, New York, NY, Jessica Ring Amunson (Tassity Johnson, Tali R. Leinwand, on the brief), Jenner & Block, Washington, D.C. For Defendants‐Appellants: Jennifer Utrecht (Scott McIntosh, on the brief), Attorneys, Appellate Staff, Civil Division, for Joseph H. Hunt, Assistant Attorney General, Hashim M. Mooppan, Deputy Assistant Attorney General, Washington, D.C. Following disposition of this appeal on July 9, 2019, an active judge of the Court requested a poll 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. 2 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. FOR THE COURT: CATHERINE O’HAGAN WOLFE, CLERK 3 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 ...
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