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