Disclaimer: This post does not constitute legal advice nor should it be relied on as such.
As you may or may not have heard, the Knight Institute has filed a complaint with the district court of New York, claiming that President Trump’s decision to block some users has violated those users’ First Amendment rights. While I don’t intend to rehash their entire complaint1, the gist of it is:
- President Trump’s Twitter account has, based on his decision to use it as a means of conducting official business, become a public forum;
- Blocking users from viewing or commenting on those forums infringes their first amendment rights;
- Blocking those users infringes the first amendment rights of those wishing to read the tweets of the blocked users, and;
- The available remedies (logging out to view, registering another account) are not sufficient remedies.
Is Trump’s Account a Public Forum?
Probably. He’s been using his personal, public-facing Twitter account for announcements, policy statements, and his own brand of international diplomacy. Prior decisions2 suggest that a social media account, when used as an official channel of communication, becomes a public forum. Though it isn’t a slam dunk, I suspect that any argument that Trump’s account is a private, personal account is going to fail.
“But Twitter is a private company!”
I know, and under normal circumstances, you’d be right. Twitter, acting as a private entity, can do with your account as they will… and they can allow other users to mute and/or block you with impunity. There are two issues with using that argument though:
- Twitter, by hosting President Trump’s account, has implicitly agreed to abide by the rules governing public entities and their public-facing forums. They’re essentially agreeing to act as a public space, and;
- President Trump, not Twitter, is the one making the decision to block people from viewing and participating in the comments on his posts.
“But this is his personal account! There’s a POTUS account too!”
Yes, there is. The issue isn’t just access to material, though, but access to the public debate raging in the comments. That’s a large part of the complaint, and one with some substance. “The Commentz” are where the real debate is, after all.
Does Blocking Users Violate the First Amendment?
Probably not. The complaint leans heavily on the idea that the Twitter users in question are being denied their right to meaningful participation and debate, but conveniently sidesteps the rather obvious (to Twitter users) methods that those users can use to bypass the block. Unlike Facebook, Twitter makes registering new accounts as easy as logging out, filling out a quick form, and logging back in. If the argument is that those means of participation are onerous, well, I’m not buying it.
For passive participation, being able to view the Tweets while logged out is certainly sufficient to mitigate any first amendment concerns raised by the block. While they lose some functionality (liking, for example) they could easily bypass that limitation with a new account. For active participation, there’s a larger burden, but it doesn’t rise to the level of speech curtailment.
What about those who would have otherwise seen their commentary? Well, the same principles apply. A new account would allow them to comment
The real complaint, if one is willing to read between the lines, is that the blocked users in question are high profile account holders. As important3 Twitter personalities, using a secondary account to participate as an unverified user probably cuts into their bottom line as internet personalities. It isn’t that participating is hard… it’s that they can’t rely on the weight of their popularity to amplify their voice.4
What If The Courts Decide He is in Violation?
That’s where things get interesting, right? Assume the court decides that President Trump’s account is public, and that blocking users is a violation of both their First Amendment Rights & their readers’ First Amendment rights. Victory, right? The little guys wins?
Not so fast.
The first and most obvious question is then… what about the thousands of accounts that Twitter itself has banned? As an acting public forum, one could argue… and one would have a pretty strong case… that Twitter’s bans violate the banned individuals’ First Amendment rights. Twitter may then have to rescind most of the bans5 dealing with objectionable speech, as those bans deny the users behind the accounts meaningful access to those newly declared public spaces. So yes, folks, that would mean that Milo Yiannopolous himself would probably have to be reinstated as a user of the service.
And what about those public officials’ block lists? Would they have to be publically accessible? Could we compel Twitter to publish them regularly to ensure that those figures weren’t censoring speech? Would muting a user also be a violation, as it singles out a user as unworthy of attention? Could we FOIA the history of tweets, the DMs of a public figure?
So many issues.
So Where Do YOU Stand?
Easy enough. I don’t think President Trump is violating anyone’s First Amendment rights, but I do think that his account is probably a public forum. As a matter of professional integrity, he ought to remove his blocks, but I don’t believe he’s required to do so. If he wants an account where he can vent and block people, he should create a new one… or, alternatively, he should offload his official business to the POTUS account, restoring his personal account to its status as an individual account.
1 – The complaint can be found here, for those interested in reading through it. As legal documents go, it’s a pretty easy read.
2 – I’m referring to Davison v. Loudoun, a non-precedential decision in Virginia.
3 – Well self-important, anyway.
4 – There’s a little merit in saying that established personalities should be able to rely on the weight of their reputation, but there are simple enough workarounds there too. While it strengthens the case a little bit, I don’t think it is a winning argument.
5 – They could also restrict official accounts from being created, create special categories, etcetera. But the loss of public figures would do a fair amount of damage to their traffic, one suspects.