By Daniel O’Leary

In May 2009, Donald Trump created an account on the social media website Twitter with the handle @realDonaldTrump. He used the account to share his opinions in 140 characters or less on politics, celebrities, golf, and his business interests, among other topics. In January 2017, now President Trump chose to continue using his personal Twitter handle, along with @Potus and @whitehouse, to communicate with the public.

After his inauguration, tweets from @realDonaldTrump have announced, described, and defended administration policies, announced official decisions, engaged with foreign political leaders, publicized state visits, and challenged the president’s political opponents. Twitter’s ingenious “Reply” feature allows users to respond to other users tweets and aggregate the responses in “comment threads.” Twitter users can reply to other users’ replies, which are nested below the replies to which they respond. These features enable Twitter to host overlapping conversations among enormous groups of users. For example, it is not uncommon for a single tweet from @realDonaldTrump to elicit tens of thousands of user replies, both to the tweet and to others users’ replies. Moreover, a user may “block” another user, which prevents the blocked user from interacting with the first user’s account on the Twitter platform.

If President Trump blocks any number of the 47.2 million users who follow @realDonaldTrump, is he violating these blocked users’ First Amendment rights? This is the central issue in an ongoing lawsuit, Knight First Amendment Institute v. Trump. Seven people were blocked from the President’s personal Twitter handle for posting comments critical of the administration’s policies. In their lawsuit against the President, Plaintiffs invoke well-established First Amendment doctrine by arguing that the President blocking them from his private Twitter handle imposes a viewpoint-based restriction on the individual plaintiffs’ participation in a public forum. This post examines the opposing sides arguments and explores Knight’s novel legal argument.

Is Twitter “the modern public square?”

In 2016, the Knight First Amendment Institute was established at Columbia University. Its purpose is “to defend and strengthen the freedoms of speech and the press in the digital age through strategic litigation, research, and public education.” Knight’s suit is premised on a fascinating theory: the @realDonaldTrump account’s tweets and “comment threads” create digital spaces in which information and ideas can be exchanged. Under this theory, when these spaces are opened by the government or by a public official on a social media website, they should be recognized as “public forums” under the First Amendment. A corollary to this theory is that once the government creates a public forum, then it may not exclude members of the public from participating even if those members are critical of government policies.

Courts are beginning to weigh in on these types of novel legal issues. Last June, in Packingham v. North Carolina, the Supreme Court unanimously held that the First Amendment applied to strike down a North Carolina law prohibiting registered sex offenders from accessing various social media websites, where minors are known to be active and have accounts, even if the sex offender did not directly interact with a minor. In limiting access to social media, Justice Anthony Kennedy wrote that such a law restricted an individual’s ability to speak and listen in the “modern public square.” In terms of forum analysis, Kennedy wrote that the First Amendment protects the right to speak in a “spatial context.” Further: “While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the “vast democratic forums of the Internet” in general, and social media in particular.” Packingham v. North Carolina, 137 S. Ct. 1730, 1735 (2017). Packingham demonstrates a clear willingness on the part of the Supreme Court to project the First Amendment into the digital sphere. But while it’s clear that the government may not exclude a citizen from the “modern public square,” the question remains as to how the First Amendment should be applied to public officials’ use of social media.

One month after Packingham, the Eastern District Court of Virginia decided Davison v. Loudoun Cty. Bd. of Supervisors, which may have provided a critical link for Knight’s case. Relying on Packingham, the Court held that the First Amendment barred a county official who used her Facebook page in an official capacity from prohibiting Plaintiff’s access to the page for a period of twelve hours. Relevant to Knight’s argument are the following facts which align with President Trump’s use of @realDonaldTrump: the official started the page on her own; the official listed herself as a “government official” in the “About” section on the page; the official routinely used the page to announce official proclamations; and the official testified that she banned Plaintiff because she was offended by the comment posted to social media.

The Court held the official was acting under color of law in maintaining the Facebook page because the official’s use of the social media website has all the indicia of state action. In essence, the Court held there was a “sufficiently close nexus” between apparently private actions of the public official and the state such that the private actions are treated as the state action under the First Amendment. A “sufficiently close nexus” is a matter of normative judgment. While Davison should engender optimism for Knight, it is still an open question whether the same logic that applies to a county official’s social media webpage also applies with equal force to the President’s tweets.

Or is Twitter a Private Social Media Platform?

As the visible leader of the federal government, the President is in a unique position that could be misread to suggest that federal power permeates his every action. But, like other public officials, not all of the President’s actions are attributable to the government. Thus, the Court in Knight’s case could treat the President’s tweets as government speech in a privately run forum and not the government managing the participation of others in a public one.

For the President, the relevant legal question is still whether the President exercised authority based in federal law when he blocked the Plaintiffs on Twitter. Public officials make statements and announce new policy initiatives in a variety of settings. If the President’s tweets are state action, the Government warns, then any announcement made in an unofficial setting could in theory retroactively convert into state action. Therefore, a public official could be guilty of imposing a viewpoint-based restriction in an unofficial setting, like a campaign rally or a fundraising dinner, if they refused to communicate with an attendee. Therefore, according to the President’s attorneys, the tweets from @realDonaldTrump account are not state action because it would lead to an absurd result.

To buttress this argument, the Government contends that @realDonaldTrump is a mere channel for the President’s speech. Under this line of argument, the President’s use of his Twitter account is like his participation in any other conversation and can, therefore, be categorized under a narrow exception in First Amendment doctrine: government speech. Government speech does not implicate the First Amendment; if the government speaks, it is generally free to draw distinctions based on viewpoints, unlike in other areas of First Amendment law. Moreover, features to the Twitter platform, such as “block,” are elements created and maintained by Twitter, not the Government. Therefore, the President is characterizing Knight as urging the court to recognize the imposition of a viewpoint-based restriction by the government in a private forum responsible for the features that allow users to be excluded from an alleged forum.

At this point, it is unclear where the Court will fall on these issues. Should the President’s tweets constitute state action, which would subject the tweets and comment threads to a First Amendment forum analysis? Or are the President’s tweets government speech, which do not implicate the First Amendment? Oral arguments on pending cross-motions for summary judgment are scheduled to be held on March 8, 2018.

Student Bio: Dan is a Staff Member on the Journal of High Technology Law. He is a second-year day student at Suffolk University Law School and possesses a B.A. in History from the University of Massachusetts Amherst with a minor in Political Science.

Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.

 

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