Donald Trump, Free Speech, Justice, Social Media

Can The President Block His Critics?

Twitter law is something we have to take seriously now.

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As the events of today have demonstrated, Twitter is where this administration has decided to conduct public business. Twitter is the public square. Twitter is the campaign rally. Twitter is the signing statement of executive intent. Today, Twitter is where self-incrimination happens.

President Donald J. Trump has chosen to conduct his administration on Twitter. He has arguably created a public forum on Twitter. And so now when he blocks people on Twitter, it’s potentially an act of the government quashing free speech. At least, that’s what a lawsuit filed today claims. From the ABA Journal:

The Knight First Amendment Institute at Columbia University filed the suit on behalf of seven people blocked from @realDonaldTrump, according to a press release. The suit… claims the Twitter feed constitutes a public forum under the First Amendment, and people can’t be blocked because of their views.

The president’s tweets “routinely generate tens of thousands of comments” in “vibrant discussion forums,” and the account is used to make formal announcements, the suit says.

Oh this is fun. If the government creates a public forum, clearly they can’t ban people from that forum on the basis of speech. If a private citizen creates an open space, they can restrict access and content as they see fit.

You can protest outside Trump Tower, but you can’t protest in Trump Tower. That makes sense.

So when a president (public) creates an account on a private service (private) that he held as a private citizen (private) but continues to use as president (public) to alert the nation and the world of his policies (public), intentions (public), and proclamations (public), can he prevent citizens from engaging in the discussion?

Last month, I expressed some reservations with the Supreme Court’s opinion in Packingham. While I agreed with the outcome — that registered sex offenders could not be barred from social media — I shared Justice Alito’s concern that the majority’s language seemed to treat Twitter and Facebook as a “public forum” in the most sweeping sense of the phrase.

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Here, the First Amendment Institute specifically referenced Justice Kennedy’s majority opinion in Packingham in arguing that the government could not block users from tweeting at a public Twitter account.

I don’t know how this case should turn out, but dismissing it like it’s a stunt is wrong. One way or another, the Trump administration is going to have a lasting effect on Twitter law.

Suit claims Trump violates the First Amendment by blocking critics from his Twitter feed [ABA Journal]

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