By: Joslyeen Mitri
“We are living Orwell’s 1984 . . . free-speech no longer exists in America”, said Donald Trump Jr. after his father’s account was permanently banned from Twitter, along with other social media platforms. The social media banning incited First Amendment debates, and questions on how social media giants should be policed or regulated when censoring speech.
On May 18, 2015, then-President Barack Obama posted on the Twitter account, “@POTUS” – this was the first time that a sitting president created a Twitter account for the exclusive purpose of official government communication with the general public. In May of 2016, the Congressional Research Service reported that all U.S. Senators, and almost all U.S. Representatives, made use of social media platforms to communicate with their constituents. Unlike postal letters, the rise in electronic communication allowed members to reach a large number of constituents in an inexpensive manner, in virtually zero downtime.
Though Donald Trump was given control of the @POTUS account, he continued to use his personal account, @realDonaldTrump, as his primary mode of communication. Trump used @realDonaldTrump to make exclusive official announcements, such as his nomination of Christopher Wray for the position of FBI Director, his ban of transgender individuals from serving in the U.S. military, his replacement of Reince Priebus as White House Chief-of-Staff with General John F. Kelly, and his replacement of Rex Tillerson as Secretary of State with Mike Pompeo. On June 6, 2017, the White House itself, via then-Press Secretary Sean Spicer, stated that “the president is the President of the United States, so his tweets are considered official statements by the President of the United States”.
If Donald Trump’s tweets constitute official government communication, then what does it mean when @realDonaldTrump blocks another Twitter user from seeing his tweets? The answer to this question was explored in a lawsuit instituted against Trump by the Knight First Amendment Institute at Columbia University and seven Twitter users who were blocked by @realDonaldTrump.
Due to the fact that Trump was a government official who used his Twitter account to conduct official business, a unanimous three-judge panel of the United States Court of Appeals for the Second Circuit in New York, ruled in 2019 that the account was a public forum from which he was powerless to exclude people based on their viewpoints. “Our public interest framework exists to enable the public to hear from elected officials and world leaders directly. It is built on a principle that the people have a right to hold power to account in the open,” Twitter said in a statement. Twitter made it clear that elected officials’ accounts are not above their rules entirely and cannot use Twitter to incite violence, among other things.
Each of the big social media platforms struggled with the challenges of Trump’s presidency, scrambling to address or neutralize various concerns from users. Since 2016, users across platforms have been informed that some things they were seeing or sharing were disputed by outside fact-checkers. Nobody leaned as heavily on warning labels as Twitter, which spent the year before the election labeling the president’s tweets with evolving disclaimers. The prospect of a ban of the @realDonaldTrump account had been subject to a very public debate for years, especially on Twitter, but the actual banning of his account was still a shock to the public.
On January 6, 2021, Twitter suspended President Trump’s account until he deleted three tweets that the company flagged as violating its rules. Trump’s account was set to reactivate 12 hours after those deletions, and he returned to the platform with a video in which he appeared to concede his election loss for the first time. On January 8, 2021, Trump crossed the line with Twitter when he failed to condemn a group of his supporters who staged a violent riot at the Capitol building. Twitter’s public statement read: “due to ongoing tensions in the United States…in regards to the people who violently stormed the Capitol on January 6, 2021, these Tweets must be read in the context of broader events in the country and the ways in which the President’s statements…incite violence”, and in conclusion, Twitter permanently banned @realDonaldTrump.
The most controversial tweet from @realDonaldTrump reads as: “The 75,000,000 great American Patriots who voted for me, AMERICA FIRST, and MAKE AMERICA GREAT AGAIN, will have a GIANT VOICE long into the future. They will not be disrespected or treated unfairly in any way, shape or form!!!”. Twitter found that the use of the words “American Patriots” to describe his supporters, was interpreted as supporting the violent acts that erupted at the U.S. Capitol. Furthermore, Twitter found that the tweet “they will not be disrespected or treated unfairly in any way, shape or form!!!” was interpreted as a further indication that President Trump does not plan to facilitate an “orderly transition”, and instead of that he plans to continue to support, empower, and shield those who believe he won the election.
It has become popular – even among those who do understand the law – to label all matters restricting anyone’s speech as a “First Amendment issue”. While Twitter’s decision to ban @realDonaldTrump has been controversial, the decision was perfectly lawful. Social media companies are not state actors, and the First Amendment prohibits government censorship on speech, not applying to decisions made by private businesses. The terms and conditions that users are required to sign upon registration of a social media site apply to the president just as much as they apply to the general public. This includes refraining from language that incites violence, and after what transpired at the Capitol building, Twitter was within their rights to permanently ban @realDonaldTrump as they saw fit.
“This is only the beginning,” tweeted Representative Guy Reschenthaler, on January 11, 2021. The Twitter bans have fostered a debate about internet speech and the power that social media companies have in policing it. The forces of the internet are so new and far-reaching, that courts must be conscious that the cyberage does not alter how we think or express ourselves in the future.
Student Bio: Joslyeen Mitri is a second-year law student at Suffolk University Law School and a Staff Member of the Journal of High Technology Law. Prior to law school, Joslyeen received a Bachelor of Science Degree in Corporate Finance and Accounting from Bentley University.
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.
