Earlier today the Second Circuit Court of Appeals ruled unanimously that Donald Trump cannot block Twitter users from following his @realDonaldTrump account. It’s an interesting decision from an ideologically diverse judicial panel that at first glance appears to be a straightforward application of conventional First Amendment law. It’s also wrong. It makes a crucial error that reflects a fundamental misunderstanding of speech on private social-media platforms.
Boiled down to its essence, the court’s reasoning contained two key elements. First, it ruled that Trump’s Twitter account represents an outlet for official communications and interactions that is controlled by President Trump. Second, it found that under these circumstances, Trump’s decision to block users represents impermissible state action undertaken to suppress dissent.
The first element is fundamentally mistaken. By no traditional legal measure of “control” does Trump control his Twitter account. Twitter owns and controls his account, and he has no legal right to wrest control of it from Twitter. The court’s misunderstanding of the platform is made evident by this deeply flawed analysis:
The fact that government control over property is temporary, or that the government does not “own” the property in the sense that it holds title to the property, is not determinative of whether the property is, in fact, sufficiently controlled by the government to make it a forum for First Amendment purposes. See Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 547‐52 (1975) (holding privately‐owned theater leased to and operated by city was public forum). Temporary control by the government can still be control for First Amendment purposes.
There is no “control” at all, temporary or otherwise. When a politician rents a theater or other private venue, there is typically an exchange of money and a rental agreement that explicitly grants enforceable legal rights to access the property and control others’ access to the property, and — critically — limits the landlord’s power during the course of the rental.
Compare that level of control to the absolute lack of rights the user has under Twitter’s terms of service:
We may suspend or terminate your account or cease providing you with all or part of the Services at any time for any or no reason, including, but not limited to, if we reasonably believe: (i) you have violated these Terms or the Twitter Rules or Periscope Community Guidelines, (ii) you create risk or possible legal exposure for us; (iii) your account should be removed due to prolonged inactivity; or (iv) our provision of the Services to you is no longer commercially viable.
There is no exchange of money, the user has no right to the platform, and Twitter can not only eliminate your access entirely but censor any single tweet. If it chooses, it can even remove Trump’s ability to block, mute, or take any other action. And that’s not all — when you use Twitter, your speech isn’t even purely “your” speech any longer. Twitter grants itself the right to your communications, too:
By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed).
Writing in response to the trial court’s ruling against Trump last year, law professor Greg Dolin compared Twitter to a radio call-in show that is hosting a government official as a guest. The politician has no right to be on the show, the host can send the politician packing at any time, and the host has ultimate control over not only the politician’s presence but also any callers’ speech. In other words, Trump remains on Twitter entirely at Twitter’s discretion.
In that circumstance, there is no “public forum.” There is instead a public official using a private platform to attempt to amplify his specific message, with the permission of the entity that controls the platform. The court’s ruling, in this circumstance, represents government intervention in Twitter’s control of its own service. The court is overriding the permissions Twitter gave its own user.
Moreover, the court gives short shrift to Trump’s own free-speech rights under the government-speech doctrine. Again, to borrow one of Professor Dolin’s analogies, “If a politician is holding a rally in a park (a traditional public forum), it doesn’t follow that he must permit critics to share the stage with him.” The Twitter thread beneath any tweet can undermine or amplify the president’s chosen message. So long as Twitter grants the user the ability to regulate his or her Twitter replies, then that regulation is an integral part of the user’s expression.
If, say, Kamala Harris wins the White House and Twitter permits her to use its services to announce that she’s forming a committee to study the feasibility of reparations for slavery, does she then have to allow that thread to be hijacked by white nationalists and other vile alt-right voices? I say no. The Second Circuit says yes.
It’s common for social-media users to use phrases like “my Facebook page” or “my Twitter feed.” Yes, it is “my” speech on social media, but it is not my page or my feed. A private company is allowing a public official to use the private company’s services to amplify his message. The private company is in legal control, not the public official, and if members of the public don’t want to be blocked on a Twitter feed, they should take their objections to Twitter, not to federal court.
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