By Stowell Simonton

“@realDonaldTrump blocked you. You are blocked from following @realDonaldTrump and viewing @realDonaldTrump’s tweets.” This is the message seven users on Twitter received in response to making a ‘tweet’ that was critical of President Trump or his policies. The individual Twitter users brought suit against President Trump and other White House staff with access to the President’s Twitter account, alleging their account being blocked was a violation of their rights protected by the First Amendment. Eugene Gu, a physician-scientist and one of the individuals blocked, stated:

[When] President Trump blocked me. It felt like I was being silenced and suppressed. Now I have extremely limited access to the public forum where I once could be heard. I feel cut off and as though I’m being treated like an outsider in my own country. President Trump is my president: He is supposed to care about the views of all Americans, even those who disagree with him.

The Knight First Amendment Institute at Columbia University (“Knight Institute”), an organization that works to defend and strengthen the freedoms of speech and the press, joined the blocked users as a plaintiff. The Knight Institute claimed it suffered an injury because it no longer had the ability to read the replies the blocked users may have received to President Trump’s tweets. The district court granted the plaintiffs’ declaratory relief. The court reasoned that the comment section of the Twitter account constituted a limited public forum, which is protected by the First Amendment and a space which the President or his staff could not discriminate against people’s political speech. On July 9, 2019, the United States Court of Appeals for the Second Circuit affirmed the district court’s ruling. The decision is a win for the protection of First Amendment rights and a sign social media platforms are not impervious to violating the First Amendment.

President Trump is not the only politician the issue of discriminating against political views on Twitter pertains to. Democratic presidential candidate Alexandria Ocasio-Cortez (“AOC”), a political rival of President Trump, has also had lawsuits filed against her for blocking users on Twitter. One of the plaintiffs to sue AOC for blocking access to her account is Dov Hikind, a former New York state assemblyman. Hikind posted on his own Twitter account, “The law applies to socialists just as it does to capitalists. See ya in court, @AOC.” In a letter sent to AOC, the Knight Institute argued that AOC was acting unconstitutionally by blocking users from her popular Twitter feed and urged the congresswomen to unblock any users her or her staff have blocked from the @AOC account. AOC claims the reason she blocked the less than 20 users from her Twitter page is because the users displayed “ongoing harassment.” Regardless of the nature of the comments blocked from AOC’s account, the parallel between her and Trump’s Twitter accounts and the users blocked is clear.

The government petitioned for rehearing en banc on August 23, 2019, in response to the Second Circuit’s affirmation of the district court’s ruling. At the moment, it is undetermined how the judges will rule or if the case will be accepted for review by the United States Supreme Court. No matter how the case proceeds, the idea as to who the First Amendment governs will likely be a reoccurring topic of controversy. Currently, because of the State Action Doctrine, the First Amendment only limits government actors. However, there are strong arguments that the First Amendment should be expanded to cover powerful private entities, particularly popular networking sites such as Facebook and Twitter, that control much of the speech and content citizens from the United States and around the world are exposed to today. One argument that the First Amendment should be expanded to cover certain private entities is that private entities now have massive control over results of the elections in the United States. Private entities give millions and millions of dollars to political campaigns, and they should not be able to silence someone who disagrees with a particular politician or policy the private entity supports. Another reason the rights protected by the First Amendment should be expanded to certain powerful private entity groups who control social media forums is because many citizens use their social media accounts to protest the government. If the First Amendment intends to protect one’s ability to petition and protest the government, it would make sense for the amendment to extend to cover forums where protests and petitions are often used to gain support. The last reason I will provide to support the assertion that the First Amendment should extend to cover powerful private entities is that these private entities, like the government, can stop the freedom of expression. Because the First Amendment is supposed to protect the freedom of expression, it should apply to public and private actors who have the control to deny a person of this right.

Going forward it will be very interesting to see how courts rule on cases regarding the protection of First Amendment rights for powerful private entities involved in social media. The courts will have to find a way to balance the First Amendment rights of social media private entities, such as Twitter, and the users who use their platforms to express their political point of views.

Student Bio: Stowell Simonton is currently a second-year law student at Suffolk University Law School, a staff member on The Journal of High Technology Law, and a high school constitutional law teacher as a Marshall-Brenna Fellow.  Stowell holds a B.A. in Political Science from Union College with a minor in Philosophy.

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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