How, the judges asked, could the president’s social media messages not amount to official government business, including when he closes off his social media to critics?

The announcement of a new member of the Federal Reserve Board, views on North Korea sanctions, and a congratulatory welcome to the White House of the Stanley-Cup winning Washington Capitals ice hockey team.

NEW YORK — Judges taking up a case over President Trump’s Twitter habits ran through a quick list Tuesday of some recent tweets:

“Are you seriously urging us to believe the president isn’t acting in his official capacity when he’s tweeting?” asked Judge Barrington Parker Jr. of the US Court of Appeals for the 2nd Circuit.


The appeals court is considering the novel question of whether the First Amendment prevents Trump — and other elected officials — from shutting off critics on a platform the president regularly uses to communicate with the public.

The Trump administration is appealing a District Court judge’s ruling from May siding with seven individuals blocked on the @realDonaldTrump account after they posted disapproving comments of the president and his policies.

Trump’s decision to block individual followers from replying and retweeting his messages, Parker said Tuesday in court, ‘‘subtracts from that discussion points of view the president doesn’t like. Why isn’t that a quintessential First Amendment violation,” the judge asked.

Justice Department lawyer Jennifer Utrecht in her reply acknowledged the president’s tweets are official government statements, but said Trump is acting in his private, unofficial capacity when he decides to block followers from his personal account.

“You are here because he’s not a private individual,” Judge Peter Hall responded noting the president was being represented by the Justice Department and not a private attorney.

The Supreme Court has not directly addressed how the law applies to expanding digital spaces for public debate, and the case involving the president’s account is a high-profile legal test that already has affected how elected officials around the country interact online with constituents.


The First Amendment prevents the government from blocking or excluding views it disagrees with in what is known as “viewpoint discrimination.” Elected officials throughout the country are learning to navigate how those principles apply after the earlier decision over the Trump account and one dealing with a Virginia politician.

Justice Department lawyers have said in filings that the @realDonaldTrump account is Trump’s personal platform to share his views, not an extension of the federal government. The president, they say, can choose to silence followers ‘‘he does not wish to hear’’ without violating the First Amendment.

In the decision under appeal by the administration, Judge Naomi Buchwald of the US District Court for the Southern District of New York said the comment threads attached to Trump’s tweets are an unrestricted public forum and that it is unconstitutional to block individuals from those interactive spaces because of their views.