Don’t tread on Trump’s Twitter

FIRST & FOREMOST

Seven people blocked by Donald Trump from his @realDonaldTrump Twitter account recently sued the president. Knight First Amendment Institute at Columbia University v. Trump, CV-17-05205 (S.D.N.Y. July 11, 2017). They allege that they were blocked for criticizing and mocking Trump, and that such blocking is viewpoint-based discrimination violating their constitutional rights. The plaintiffs are not mere wing-and-a-prayer pro se litigants. They are represented by the Knight First Amendment Institute at Columbia University, and their attorneys include the former deputy legal director of the ACLU and the former deputy director of the Bureau of Consumer Protection at the Federal Trade Commission. The lawsuit raises a number of interesting legal questions involving the First Amendment, Trump-as-president versus Trump-as-private-citizen, and what constitutes a public forum in the internet age.

Plaintiffs contend that Trump’s Twitter account should be considered a “designated public forum” for the purposes of the First Amendment. The Constitution prohibits the government from discriminating against speakers on the basis of content or viewpoint in such public forums. If, for example, Trump wanted to create a Speaker’s Corner on federal property across from the White House, he could not selectively prohibit left-wing speakers from speaking there. Plaintiffs argue that Trump’s Twitter account, although it exists on the private Twitter platform, nonetheless constitutes a designated public forum because Trump uses the account to communicate with the public at large regarding his administration’s policies and positions.

Trump and other White House officials recently made public pronouncements providing potential ammunition to plaintiffs’ argument. In response to criticism of his Twitter habits, Trump tweeted “My use of social media is not Presidential - it’s MODERN DAY PRESIDENTIAL. Make America Great Again!” And former White House Press Secretary Sean Spicer said of Trump’s tweets: “The president is president of the United States so they are considered official statements by the president of the United States.”

Some First Amendment experts have opined that the plaintiffs’ suit may have legal merit. First Amendment litigator Floyd Abrams opined that while the vast majority of politicians’ private Twitter accounts would not constitute public forums, Trump’s rather unique use of his account may be different because Trump and his administration have used the account as a mouthpiece for the White House and its policies. Erwin Chemerinsky, dean of UC Berkeley School of Law, analogized Trump’s blocking of critics to an administration’s decision to deny press credentials to disfavored media entities, which would be illegal under existing First Amendment law.

However, others have expressed skepticism regarding plaintiffs’ claims. For example, UCLA School of Law Professor Eugene Volokh noted that Trump’s Twitter account predates his presidency and will likely be viewed as reflective of Trump’s personal views rather than as a governmental communications channel constituting a public forum. Other commenters have questioned whether the court will find that the harms suffered by the blocked users rise to the level of a constitutional violation. The blocked users can still find and view Trump’s tweets online, and they remain able to post their comments about Trump and the substance of his tweets on their own Twitter feeds. However, as a result of being blocked, they cannot participate directly in the comments thread to Trump’s account.

Harvard Law School Professor Noah Feldman has focused on another potential flaw in plaintiffs’ lawsuit: Twitter is a private company, not a state actor, and Twitter alone has the right to decide which content appears on its platform and which rules should govern blocking decisions on the platform. Indeed, Twitter would be within its First Amendment rights to simply delete Trump’s account along with any user comments in Trump’s Twitter feed. Section 230 of the Communications Decency Act further entitles Twitter to decide whether to publish or remove speech that users post on Twitter. Plaintiffs may have a hard time convincing the court that a public forum can be said to exist in an online account on a private platform over which Twitter, not the government, has ultimate control, although the plaintiffs may try to analogize the situation to the government’s inability to rent private property and then exclude certain speakers from that property based on viewpoint.

Some recent decisions offer potential support to the plaintiffs’ lawsuit against Trump. The U.S. Supreme Court recently struck down on First Amendment grounds a North Carolina law banning registered sex offenders from using social media sites. While that decision is not directly on point, the court’s opinion emphasized the important relationship in modern society between the internet and the First Amendment. A pair of recent decisions from the Eastern District of Virginia are more on point. Those decisions held that a Facebook page operated by a government agency and allowing comments was a limited public forum, and also that a public officeholder’s Facebook account could, under the right circumstances, be considered a public forum.

The first step in this litigation is in the Southern District of New York, although the case may eventually reach the 2nd U.S. Circuit Court of Appeals and perhaps even the Supreme Court. It is a must-follow for political junkies and First Amendment enthusiasts alike.