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Outraged Twitter user: “The President can unblock me, or see me in court”

Outraged Twitter user: “The President can unblock me, or see me in court”

Raising interesting questions about the First Amendment and social media as limited public forum

https://twitter.com/realDonaldTrump and https://twitter.com/POTUS

Anti-Trump factions on the left (and right) have been railing against the president’s use of Twitter since the Republican primaries, so perhaps it’s no surprise that the latest outrage felt by the perpetually outraged is that President Trump has blocked them on Twitter.

As a result, the Knight First Amendment Institute sent a letter requesting the users be unblocked, and one of the blocked Twitter users represented by the Knight Institutue, Holly Figueroa O’Reilly, openly threatened a lawsuit against the president in an article in the Washington Post.

In an article entitled, “President Trump is violating my constitutional rights by blocking me on Twitter: The president can unblock me, or see me in court,” O’Reilly states:

The president of the United States, the leader of the free world, has blocked me and others who are critical of him on Twitter.

Did I make death threats against him? Did I use foul language or threaten his family?

No, of course not.

I told him that the pope looked at him funny.

. . . . When I realized that he’d blocked me, I couldn’t help but laugh at the absurdity of it all. Then I started getting angry. It’s one thing if the president blocks me; I’m just one person, and I can certainly do something else with those five minutes of my day. But when he began systematically blocking dozens of people who simply didn’t agree with him, that’s when I started to worry that this is something more than just one person blocking another one. This is an elected official trying to silence an entire sector of the dissenting populace. This is what dictators and fascists do. This isn’t what we do here in America.

. . . . If the president wants a private Twitter account to communicate with family and friends, he should be able to block anyone he wants. (I block people all the time.) But this is not that: I was blocked from @realDonaldTrump, the president’s most-followed account. This is a 21st-century violation of free speech.

Her overwrought melodramatics aside, the president’s Twitter account—i.e. his long-standing personal account, and his ability to block users now that he is president raises some interesting questions.

At the root of which is the unprecedented way in which the president uses Twitter as a public forum, the White House’s insistence that the President’s @realDonaldTrump Twitter posts (as well as those on the @POTUS account) are official statements made by the president of the United States, and the very fact that there is a separate “official” Twitter account for the president, thus calling into question the objections on grounds of being excluded from a designated public forum.

The Knight Institute writes:

The President’s Twitter account, @realDonaldTrump, is a “designated public forum” subject to the First Amendment, according to the Knight Institute.  The First Amendment bars the government from excluding individuals from a designated public forum because of their views. The Knight Institute asked the President to unblock its clients, or to direct his subordinates to do so.

“This is a context in which the Constitution precludes the President from making up his own rules,” said Jameel Jaffer, the Knight Institute’s executive director. “Though the architects of the Constitution surely didn’t contemplate presidential Twitter accounts, they understood that the President must not be allowed to banish views from public discourse simply because he finds them objectionable. Having opened this forum to all comers, the President can’t exclude people from it merely because he dislikes what they’re saying.”

. . . . “When new communications platforms are developed, core First Amendment principles cannot be left behind,” said Katie Fallow, a senior litigator at the Knight Institute. “The First Amendment disallows the President from blocking critics on Twitter just as it disallows mayors from ejecting critics from town halls.”

Eugene Volokh argues that the @realDonaldTrump Twitter account is likely to be viewed as a privately-controlled personal account.

He writes:

Again, my inclination is to say that @RealDonaldTrump, an account that Trump began to use long before he became president, and one that is understood as expressing his own views — apparently in his own words and with his own typos — rather than some institutional position of the executive branch, would likely be seen as privately controlled, so that his blocking decisions wouldn’t be constrained by the First Amendment. And I think that’s so even if he gets some help from government-employed staff in running it.

. . . . (The matter might be different, by the way, as to @POTUS: Its title is more focused on the president’s governmental role; the handle was inherited from President Barack Obama; and it does not have a pre-election history as Trump’s campaign account. The Knight First Amendment Institute says that its arguments “apply with equal force to your other account, @POTUS, to the extent that you or your aides have blocked users from that account because of their views,” but I don’t know to what extent there have been such blocks on that account.)

Volokh notes that all of this is uncharted territory and that “this falls near a borderline that has not been mapped in detail.”

He goes to on to explore some important questions about the ways that free speech may be perceived as or actually obstructed.

So if @RealDonaldTrump is viewed as Trump’s own account, then there’s just no First Amendment problem in his blocking users. (There may be a political problem, if it’s seen as petty, thin-skinned, or closed-minded, but that’s a separate matter.) But what if I’m mistaken, and it’s viewed as run by Trump in his capacity as a government actor, and thus subject to the First Amendment?

A. One effect of blocking users is that any @RealDonaldTrump references by the user won’t show up in Trump’s “notifications” tab. But even if he reads a few of his notifications, there’s no First Amendment problem with his refusing to read those that come from particular people. Speakers “have no constitutional right to force the government to listen to their views.”

B. Another effect is that the blocked users can’t follow @RealDonaldTrump, and can’t view or search his messages while logged on. But all they need to do is log off and go to http://twitter.com/RealDonaldTrump, and they’ll see them all. I do think that the First Amendment bans viewpoint-based interference with people’s ability to acquire information and not just with their ability to convey it; but here the interference seems extremely minor (though I could imagine a court saying that even such minor interferences are unconstitutional, if they come from the government in a limited public forum).

C. The most constitutionally significant effect would be that blocked users apparently can’t post to Twitter comment threads, at least without some complicated workarounds (see footnote 5 of the Knight letter). If @RealDonaldTrump is seen as a governmental project and thus a limited public forum, then viewpoint-based exclusion from posting to such threads likely would be unconstitutional, just as viewpoint-based exclusion from commenting on a government-run Facebook page would be.

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Comments

Legal Question to Someone: Can the Twitter Users be forced to prove they are actual human beings (not bots) before they have standing in Court?

    notamemberofanyorganizedpolicital in reply to MattMusson. | June 8, 2017 at 3:16 pm

    That Twit-Wit Complainer is insane.

    Trump’s Twitter account is his own personal tool.
    They can follow his Tweets on DonaldJTrump.com.

    Just because someone calls the White House, doesn’t mean they have any “right” for them to personally speak on the phone to the President.

    buckeyeminuteman in reply to MattMusson. | June 9, 2017 at 9:42 am

    They would need a photo ID to prove they are not robots. And we all know it’s unconstitutional to ask for anyone to prove who they are…

So, exactly how is Twitter classified ?
A public utility, a private service ?

    rdmdawg in reply to Neo. | June 8, 2017 at 3:30 pm

    I’m no lawyer, but I think the legal issue is when the president of the US, in his official capacity (communicates with the public), he is bound by the first amendment. I don’t think anyone is arguing that the private citizen Trump can or can’t block whoever he wants.

Absurd… they just want to overwhelm his account. Ridiculous.

And kick the press out of the WH, it’s time…

Second question:

IF @RealDonaldTrump is determined to be a “public forum,” does it count as a “taking” for the purposes of 5th amendment due process compensation? And if so, whom is the injured party (Donald Trump? Twitter? Someone else?) and how do you value it for the purposes of just compensation?

Here is the thing: @POTUS is the official account. They can tweet all they want to the President. @realDonaldTrump is the private account, which many follow but few are followed.

Unlike Clinton, Trump seems to have no problem handling public and private accounts.

This has no standing. These degenerates can tweet all day to @POTUS without being blocked.

And then there is this account…. https://twitter.com/POTUS

Pence also has a personal and a VP account.

The question will be when elections come around, can Trump use his realdonaldtrump account or does he need to have a Trump election account.

Trump has not posted since before 5:17 am June 7th.

    Liz in reply to Liz. | June 8, 2017 at 3:30 pm

    Another point on the POTUS account – many entries are retweets from his realDT account, so anyone can comment on that account.

    It appears that the POTUS account is archived.

I’m sure President Trump will be very impressed by all this pettifoggery.

I think a much more important issue is why the professor keeps posting bubblegum oldies musical videos of the day. Seriously. Vanity Fair? Edison Light? Where are Tommy Roe, 1910 Fruit Gum Factory, Banana Splits, Partridge Family, the Archies, Ohio Express, and the rest? Only pre-teens listened to that tripe. See you in court professor! We have rights!

So the right to free speech surely only gives one the right TO free speech?? Not the right to force others to listen to what you have to say?

Or put it this way, if this person wasn’t such an arse they wouldn’t have been blocked. This clearly falls under the “you brought this upon yourself” law.

    notamemberofanyorganizedpolicital in reply to mailman. | June 8, 2017 at 8:38 pm

    That Twit-Wit Complainer sounds just like a “stalker” would talk, no?

Damn, I’m jealous! The only thing I can think of to whine about is the lack of something to whine about. It’s a good think I’m not one of those media big boys.

Close The Fed | June 8, 2017 at 4:30 pm

She can read about his tweets in the blogs, or on the networks, or whereever. They’re plastered everywhere.

And it’s his account, he can do whatever the hell he wants with it, including shutting it down, if he chooses.

I’m sure he didn’t tweet today because he decided to let Comey stew in his own juices today. What a day!!

    notamemberofanyorganizedpolicital in reply to Close The Fed. | June 8, 2017 at 8:41 pm

    Well put.

    So this is in the same category as if she were complaining that she couldn’t run into Trump’s private offices and stick up his bathroom every day – whenever she wanted.

    What a……she must be……

Is the next step that I am to be forced to be on Twitter?

    And after that am I not allowed to block ANY opposing viewpoints?

      notamemberofanyorganizedpolicital in reply to Archer. | June 8, 2017 at 8:43 pm

      Oh the U.S. Congress Critters in DC would just love that.

      Thinking of all the Tea Party Patriots who would have given them a few earfuls………

I’m not sure they understand what “blocked on Twitter” and “silenced by a government official” mean, or the substantial difference between them.

The rest of this comment is addressed to Ms. Holly Figueroa O’Reilly:

So @realDonaldTrump blocked you. Big deal. You can still Tweet to your heart’s content, as is your First Amendment right. He has chosen to not listen to you, as is his right.

You are not “silenced” on Twitter unless and until a government official can have your Twitter account suspended and/or deleted (as has happened to some conservatives), along with any future account you try to create. @realDonaldTrump cannot do that.

It’s really not any different from claiming that your rights are being violated if you show up on the sidewalk next to the White House with a megaphone and start screaming into it, and they choose to close the windows so they don’t have to hear you.

You have not been silenced; you’re just being ignored. Deal with it like a grown-up, or be derided like a spoiled child.

(And no, I’m not violating your rights by saying that.)

unless there is a law tied to the blocking no first issue.
its no different than politician ignoring reporter at press conference/etc.

Yah, and before the election, there were people who thought they had a 1st amendment right to attend and to disrupt Trump rallies. How well did that work out for them?

smalltownoklahoman | June 8, 2017 at 6:48 pm

The right to freedom of speech does not include a right to FORCE others to listen to what you have to say. The President does not lose the right to ignore whomever he chooses just because he is a public figure.

Everybody has the right to speak their mind. (however small)

That does not mean you have the right to make me listen.

I like that their letter lists a number of people I never want to listen to. Think I’ll add a couple of blocks too.

The real problem with Twitter is that people with Blue check marks get their replies at the top, and only liberals keep their blue check marks.

Twitter needs to give users like Trump the ability to stop abusive replies from always appearing at the top of replies to tweets.

Or he should just get on Gab. Why depend on an anti-Trump liberal controlled platform to get your message out. Even just a few tweets on Gab ought to get Twitter to clean up its act.

Knight’s characterization of Trump’s Twitter account being a designated forum seems to be without merit. The Supreme Court breaks down forums into three types: traditional public forums, designated forums, and nonpublic forums. Some public property is not a forum at all. First Amendment protections of speakers’ rights to speech and assembly vary based on the speakers’ chosen forum. Following is a brief summary of these forum types.

Traditional public forums include public parks, sidewalks and areas that have been traditionally open to political speech and debate. Speakers in these areas enjoy the strongest First Amendment protections. In traditional public forums, the government may not engage in “viewpoint discrimination.”

A designated forum is public property which is not a traditional forum but opened by government for public expression. City council chambers opened to the public during open council meetings for public input is a designated forum. Speech in a designated forum receives the same First Amendment protections as speech in a traditional public forum. Although the government may not exercise viewpoint discrimination in a designated forum, speech may be still be restricted to certain classes or types of speech. A city council may restrict participation to only residents of the city. It may also bar speech that is not related to an agenda item.

Nonpublic forums are forums for public speech that are neither traditional public forums nor designated public forums. Government restrictions on speech in nonpublic forums must be reasonable, and may not discriminate based on speakers’ viewpoints. Examples of nonpublic forums include airport terminals and a public school’s internal mail system.

Finally, some public property is not a forum at all, and thus is not subject to any forum analysis. For example, public television broadcasters are not subject to forum analysis when they decide what shows to air.

All types of forums involve public property. In all forums the restriction of free speech must occur by government action. The threshold inquiry is to determine what type of forum Twitter is.

Clearly, Twitter is not a traditional public forum. Twitter is a privately owned commercial enterprise. Twitter operates in interstate commerce. According to cases decided under the Commerce Clause, Const. Art. 1, Sec. 8. Twitter cannot discriminate against, i.e.,block users from using its service. Nothing under the commerce clause cases prevents individual users from discrimination against any other user by blocking such user.

Just as clear, Twitter is not a designated forum. A designated forum requires government itself to open a forum for public expression. Even if the Internet were to be wholly owned by the government, it is not itself a forum opened by the government for public expression. A forum consist of user content stored in privately owned servers and that content located at specific addresses. For example the pages for this website are most likely stored in leased server space on servers operated by a commercial enterprise.. The Internet is only a means of delivering this content from one address to another address. As such it is a digital network of roads upon which the content travels.

With everything that is going on in the world, this rises to the level of some liberal’s crisis to the point of bringing a lawsuit? Clearly someone is out of touch in many more than one way.

I’m not the brightest bulb on the tree, but does the first amendment have a listening requirement? How can not listening to someone deprive him/her/it of free speech? Isn’t blocking someone on twitter just a form of not listening to that person?

Clayton W. Barnett | June 9, 2017 at 12:41 pm

The letter is not a formal declaration of legal action . . . because there is no legal action to take. The Constitution limits the power and actions ––– of the government. Twitter is a private business and is therefore not regulated by the Constitution or the Bill of Rights (but it is regulated by Acts of Congress).

Trump is a customer of Twitter, and as a customer, he must follow Twitter’s Terms of Service Agreement. As part of that agreement and his right to privacy, Trump may block any customer on Twitter that he feels is a troll.

These liberal Snowflake users the have been blocked by Trump are also customers of Twitter, and as they agreed to when they created their Twitter accounts, they too must follow Twitter’s Terms of Service Agreement –– including agreeing that they may be blocked by other Twitter customers.

Therefore, it is both ignorant and rediculous to argue that just because Trump, as a government employee, uses Twitter as a customer, then Twitter is miraculously transformed from a private business platform, to a “designated public forum” regulated by the Constitution and Bill of Rights.

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