ACCESS DENIED: @REALDONALDTRUMP AND THE FIRST AMENDMENT

By: Emilie Erickson, Volume 105 Staff Member

Although former-President Obama revolutionized using social media for political mobilization,[1] President Trump’s use evolved Twitter into a real political tool “fully integrated . . . into the very fabric of his administration.”[2] From claiming voter fraud[3] to announcing key foreign policy[4], President Trump has done it all on his personal Twitter account (@realDonaldTrump). And many more politicians, following suit, have increasingly used platforms like Twitter and Facebook to connect with their constituents.[5]

But in 2019, the Knight First Amendment Institute sued President Trump for blocking seven individuals from his Twitter—and won.[6] Knight Institute argued that the President’s personal Twitter account was a designated public forum under the First Amendment, so the President was restricted from excluding individuals from the forum based on their viewpoints.[7] This Post begins by explaining the Knight Institute decision, then moves into discussing the likely effects of the case. This Post concludes by arguing that the Supreme Court should take up the case to address Twitter’s role in these situations as a private company moderating accounts on its platform.

I. KNIGHT INSTITUTE’S LAWSUIT

The plaintiffs sought declaratory and injunctive relief, alleging that being blocked from the @realDonaldTrump account imposed a viewpoint-based restriction that limited their participation in the forum, their access to public, official statements, and their ability to petition the government for redress.[8] The President conceded that he blocked the plaintiffs because they criticized him and his policies[9] but argued the tweets on his account are private speech and not subject to the First Amendment.[10]

The Second Circuit Court affirmed the judgment by the United States District Court for the Southern District of New York and rejected the President’s arguments.[11] The Court listed off a remarkable number of times that the Trump Administration has claimed that account to be official,[12] including a statement by former White House Press Secretary Sean Spicer stating that @realDonaldTrump tweets are “official statements by the President of the United States.”[13] Based on this characterization of the account, the court held that the President excluded the plaintiffs from “government-controlled property” when he blocked them.[14]

Following this, the court launched into a First Amendment analysis, determining that the account is a public forum because it is an “instrumentality of communication ‘for indiscriminate use by the general public.’”[15] The President argued that, despite this classification, blocking the plaintiffs did not burden or ban their right to free speech.[16] The court rejected this counterargument, stating that the plaintiffs were restricted from interacting with other users who engaged with the account.[17] Further, the court found that “workarounds” like creating a new account impermissibly burdened the plaintiffs’ First Amendment rights.[18]

Lastly, the President argued that he was engaged in government speech and so was exempt from the Free Speech Clause.[19] The court also rejected this rationale, finding that “while the President’s tweets can accurately be described as government speech, the retweets, replies, and likes of other users in response to his tweets are not government speech under any formulation.”[20] On these grounds, the court held that President Trump had violated the plaintiffs’ constitutional rights when he blocked them from his personal Twitter account.[21]

II. KNIGHT INSTITUTE MAY ENCOURAGE POLITICIANS TO MAINTAIN OPEN SOCIAL MEDIA ACCOUNTS, AVOIDING AN ECHO CHAMBER

It is unlikely that politicians will be deterred from having social media accounts, especially considering social media’s key role in political campaigns.[22] More likely, the threat of a lawsuit could lead politicians and other government officials to keep their social media accounts open without blocked individuals.[23] Similar suits have already been brought against other political officials, like Alexandria Ocasio-Cortez.[24]

Therefore, interaction with an official account may be more evenhanded and encapsulating. Blocking individuals with opposing views creates an “echo chamber” in a tweet or post’s discussion space.[25] By ruling that political officials cannot block people on official social media accounts, courts are requiring that the whole picture—both criticism and support of the official and their policies—be shown in the account’s “interactive space.”[26]

Even more likely, however, defiance will prevail. Although President Trump unblocked the plaintiffs after the Second Circuit Court issued its opinion, he continued to block other individuals.[27] The Knight Institute has sued President Trump once more on behalf of these blocked individuals.[28]

III. THE SUPREME COURT MUST GRANT CERTIORARI TO RESOLVE QUESTIONS ABOUT TWITTER’S FIRST AMENDMENT RIGHTS

The Supreme Court should grant President Trump’s petition for a writ of certiorari[29] to address several remaining questions: How can a court distinguish personal and official conduct on social media? Can public officials block “trolls” or people engaging in harassment?[30] Are impermissibly blocked individuals to be determined on a case-by-case basis or should there be a blanket “no blocking” rule?

Professor Noah Feldman suggests another question: How can a politician’s Twitter feed be government-controlled if it is also Twitter-controlled?[31] Twitter owns any account created on its platform, and all accounts must follow Twitter’s rules[32]—including any government-run accounts. If Twitter decides that President Trump or someone interacting with President Trump’s account has violated the Twitter rules, the prohibited content can be removed.[33] Feldman opines that, because the President’s account is ultimately subject to Twitter’s will, @realDonaldTrump is not a public forum.[34]

But Feldman’s suggestion appears misplaced. Compare the @realDonaldTrump account to a government-rented space in a privately owned building.[35] The government could not exclude people based on viewpoint from “town hall meetings at a private community center.”[36] The same reasoning should apply to Twitter and other social media.

On the other hand, Twitter’s own free speech rights clash with this characterization of President Trump’s account as a public forum. Twitter, as a private company, can entirely remove individuals from using the platform.[37] Individuals who have been “deplatformed” by Twitter cannot read or interact with the President’s tweets, just like the blocked individuals.[38] The difference is that they have been restricted by Twitter, not the President or a government actor. So, under the public forum classification of @realDonaldTrump, Twitter may be prevented from blocking users from its platform—likely resulting in a violation of Twitter’s First Amendment rights.[39]

As political discourse shifts online,[40] the Supreme Court must address how to encourage “more speech, not enforced silence”[41] and protect the First Amendment rights of American citizens in an unprecedented format.

[1] See David Carr, How Obama Tapped into Social Networks’ Power, N.Y. Times (Nov. 9, 2008), https://www.nytimes.com/2008/11/10/business/media/10carr.html [https://perma.cc/XAH7-7GM6].

[2] Michael D. Shear, Maggie Haberman, Nicholas Confessore, Karen Yourish, Larry Buchanan, & Keith Collins, How Trump Reshaped the Presidency in Over 11,000 Tweets, N.Y. Times (Nov. 2, 2019), https://www.nytimes.com/interactive/2019/11/02/us/politics/trump-twitter-presidency.html [https://perma.cc/X8R5-N2CS]; see also Katie Van Syckle, The Journalists Who Read All of President Trump’s Tweets. Twice., N.Y. Times (Nov. 2, 2019), https://www.nytimes.com/2019/11/02/insider/trump-twitter-data.html [https://perma.cc/Z8EY-D243] (explaining how Times journalists created a data set from Trump’s tweets).

[3] See Donald J. Trump, (@realDonaldTrump), Twitter (Nov. 3, 2020, 11:49 PM), https://twitter.com/realDonaldTrump/status/1323864823680126977 (“We are up BIG, but they are trying to STEAL the Election. We will never let them do it. Votes cannot be cast after the Polls are closed!”).

[4] See @realDonaldTrump, Twitter (Jan. 5, 2020, 2:25 PM), https://twitter.com/realDonaldTrump/status/1213919480574812160 (“These Media Posts will serve as notification to the United States Congress that should Iran strike any U.S. person or target, the United States will quickly & fully strike back, & perhaps in a disproportionate manner.”).

[5] See Pew Research Center, Congress Soars to New Heights on Social Media (2020), https://www.pewresearch.org/internet/2020/07/16/congress-soars-to-new-heights-on-social-media/ [https://perma.cc/PF3Z-VK85] (“Individually, members of Congress now post more content to Facebook and Twitter than was true four years ago.”); see also Transcript of Oral Argument at 28, Packingham v. North Carolina, 137 S. Ct. 1730 (2017) (No. 15-1194) (“All 50 governors, all 100 senators, every member of the House has a Twitter account. So this has become a crucial—crucially important channel of political communication.”).

[6] Knight First Amendment Inst. at Columbia Univ. v. Trump, 928 F.3d 226 (2d Cir. 2019).

[7] Complaint for Declaratory and Injunctive Relief at 3, Knight First Amendment Inst. at Columbia Univ. v. Trump, 302 F. Supp. 3d 541 (S.D.N.Y. 2018) (No. 1:17-cv-05205-NRB).

[8] Id. at 24.

[9] Knight Inst., 928 F.3d at 234.

[10] Id. at 234–35.

[11] Id. at 233–34, aff’g 302 F. Supp. 3d 541 (S.D.N.Y. 2018).

[12] Id. at 231–32, 235–36.

[13] Id. at 231.

[14] Id. at 236.

[15] Id. at 237 (citing Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 47 (1983)).

[16] Id. at 238.

[17] Id.

[18] Id. at 238–39.

[19] Id. at 239–40.

[20] Id. at 239.

[21] Id.

[22] See supra note 5 (describing the increased use of social media in politics); see also Vann R. Newkirk II, The American Idea in 140 Characters, The Atlantic (Mar. 24, 2016), https://www.theatlantic.com/politics/archive/2016/03/twitter-politics-last-decade/475131/ [https://perma.cc/7EBX-8J8Y] (“A [political] candidate without Twitter is a losing candidate.”).

[23] Joe Kukura, Pols Unblocking Twitter Users After Trump Ruling, S.F. Weekly (June 1, 2018), https://www.sfweekly.com/news/pols-unblocking-twitter-users-after-trump-ruling/ [https://perma.cc/49Q8-KWFV].

[24] Rep. Alexandria Ocasio-Cortez Faces Two Federal Lawsuits for Blocking Followers on Twitter, First Amend. Watch (Sept. 3, 2019), https://firstamendmentwatch.org/rep-alexandria-ocasio-cortez-faces-two-federal-lawsuits-for-blocking-twitter-users/ [https://perma.cc/Z7HQ-FQ3D]; see also Davison v. Randall, 912 F.3d 666, 673, 688 (4th Cir. 2019) (holding that a state official’s Facebook page, created with the help of her staff, was a public forum under the First Amendment); Lisa Kaczke, State Sen. Stace Nelson Sued over Facebook Spat with Vermillion Resident, Argus Leader (Dec. 4, 2019), https://www.argusleader.com/story/news/politics/2019/12/04/state-sen-stace-nelson-sued-over-facebook-blocked-page-vermillion-resident-jeff-church/2612120001/ [https://perma.cc/V875-29LF].

[25] Alex Abdo, @realDonaldTrump and the First Amendment, Knight First Amend. Inst. at Colum. Univ. (June 19, 2017), https://knightcolumbia.org/content/realdonaldtrump-and-first-amendment [https://perma.cc/8G5W-WK5V]; Brief of Amici Curiae First Amendment Legal Scholars in Support Plaintiffs-Appellees at 23, Knight First Amendment Inst. at Columbia Univ. v. Trump, 928 F.3d 226 (No. 18-1691) (“It is crucial that courts do not allow politicians to censor comments they do not like and thereby skew their constituents’ perceptions of the debates unfolding in the public eye.”).

[26] Knight First Amendment Inst. at Columbia Univ. v. Trump., 928 F.3d 226, 233 (2d Cir. 2019). This space includes the “interactive features open to the public,” such as commenting, replying, retweeting, and liking. Id. at 236.

[27] Knight Institute v. Trump, Knight First Amend. Inst. at Colum. Univ., https://knightcolumbia.org/cases/knight-institute-v-trump-2 [https://perma.cc/2EYS-GW8M] (last visited Nov. 6, 2020).

[28] Complaint for Declaratory and Injunctive Relief, Knight First Amendment Inst. at Columbia Univ. v. Trump, No. 1:20-cv-05958 (S.D.N.Y. July 31, 2020).

[29] Petition for Writ of Certiorari, Knight Inst., 928 F.3d 226 (No. 18-1691).

[30] In response to a letter from Knight First Amendment Institute calling her to unblock the individuals that she had blocked, Ocasio-Cortez tweeted, “Harassment is not a viewpoint. Some accounts, like the Daily Caller, posted fake nude photos of me & abused my comments to spread it. No one is entitled to abuse.” Alexandria Ocasio-Cortez, (@AOC), Twitter (Aug. 29, 2019, 5:43 PM), https://twitter.com/aoc/status/1167206144793817088?lang=en.

[31] Noah Feldman, The Courts Still Don’t Understand Trump’s Twitter Feed, Bloomberg (July 9, 2019), https://www.bloomberg.com/opinion/articles/2019-07-09/appeals-court-asks-wrong-question-in-trump-twitter-blocking-case [https://perma.cc/LKF3-XMA4].

[32] The Twitter Rules, Twitter, https://help.twitter.com/en/rules-and-policies/twitter-rules [https://perma.cc/G55T-9T54] (last visited Nov. 4, 2020).

[33] Id.

[34] Feldman, supra note 31 (“The government that supposedly controls the forum is in fact subordinated to Twitter’s content rules.”).

[35] Abdo, supra note 25 (citing Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975) which held that a privately owned theater rented by the government is a public forum under the First Amendment); see also Eugene Volokh, More on the First Amendment and @RealDonaldTrump, Wash. Post: Volokh Conspiracy (June 14, 2017, 7:44 PM), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/06/14/more-on-the-first-amendment-and-realdonaldtrump/ [https://perma.cc/K2HH-3QJ9]; Amanda Shanor, The President’s Twitter Account and the First Amendment, Take Care Blog (June 12, 2017), https://takecareblog.com/blog/the-president-s-twitter-account-and-the-first-amendment [https://perma.cc/8Z4N-RSFU] (citing Southeastern Promotions).

[36] Abdo, supra note 25.

[37] See U.S. Const. amend. I; 47 U.S.C. § 230 (providing liability protections to social media companies engaging in “Good Samaritan” blocking of offensive material). But see Exec. Order No. 13,925, 85 Fed. Reg. 34079, 34079 (May 28, 2020) (“Online platforms are engaging in selective censorship that is harming our national discourse.”).

[38] Our Range of Enforcement Options, Twitter, https://help.twitter.com/en/rules-and-policies/enforcement-options [https://perma.cc/VWU4-GB9Z] (last visited Nov. 7, 2020).

[39] See supra note 37.

[40] See supra note 5.

[41] Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring).