Bench Memos

Law & the Courts

Twitter and the First Amendment — Part III

I have previously discussed (see Part I and Part II) why a decision holding that the First Amendment precludes government officials from banning opposing viewpoints from their social media is not convincing. Here I will conclude by identifying several problems that this decision will create.

As even a casual user of any social media knows, not all commentary on those platforms is measured and polite. Crude, rude, racist, sexist, anti-Semitic, and otherwise vile comments are par for the course. Of course, such comments (provided they stop short of actual threats) are fully protected by the First Amendment. But it is one thing to say that someone who engages in such behavior cannot be prosecuted and quite another to say that they have to be tolerated on the web page of the person they are abusing. If the First Amendment prevents government officials from filtering out disagreeable speech, then they will be left without tools to reduce such behavior even on their own news feeds, because there is no way to separate “constructive criticism” from “hate speech.”

As an initial matter, the First Amendment doesn’t have a “hate speech exception,” so if a government official cannot ban someone from his Twitter feed because he doesn’t like the “criticism,” he also cannot ban someone on the basis that the “criticism” has crossed the line into “hate speech.” Second, even if such distinctions could be made, what constitutes “hate speech” is very much in the eye of the beholder. For example, during the 2016 campaign there were accusations that Trump’s campaign slogan “Make America Great Again” was racist. So is someone sub-tweeting Nancy Pelosi or Chuck Schumer with “#MAGA” engaging in protected “constructive criticism” or bannable “hate speech”? Similarly, is sub-tweeting Ted Cruz or Nikki Haley castigating them for not supporting boycott of Israel merely “constructive criticism” of U.S. policy or vile anti-Semitism? There simply is no way to draw a line between “permissible” and “impermissible” speech (which is why the First Amendment doesn’t). So if the District Court is correct that government officials’ Twitter accounts are public fora, then these officials will have to tolerate all sort of abuse on their own account, which is a peculiar outcome to say the least.

Furthermore, if it is true that women and minorities endure a disproportionate share of online abuse, then they will bear the brunt of this decision. The upshot is that the very groups now rejoicing over their win against President Trump, may come to rue this decision in short order.

Finally, faithfully applying the District Court’s decision de facto expands First Amendment’s protections to foreigner non-residents. Generally, the First Amendment doesn’t protect the rights of foreigners abroad. On the other hand, social-media platforms tend to be global and its users are often neither citizens nor residents of the United States. Applying the First Amendment to Twitter means that U.S. politicians may not ban anyone no matter where in the world they may be located, because often enough it will be impossible to tell whether the other person is located in the United States or abroad and whether or not he is a U.S. citizen or a foreigner. As a legal matter, of course, politicians will remain free to block foreigners on their social media, but as a practical matter such differentiation may be impossible to achieve. The end result is that in practice, the constitutional protections would, contrary to Supreme Court’s precedent, expand to foreigners abroad. Given the significant concern of foreign influence on American political processes a decision that de facto requires American politicians to give a platform to foreign trolls is dubious as a matter of law and problematic as a matter of policy.

In short, the arguments in defense of the proposition that blocking political opponents on Twitter violates the First Amendment have thus far been rather unconvincing, but the problems that such a holding would create are quite significant. For these reasons, I doubt that the District Court’s decision will have significant staying power.

Greg Dolin — Greg Dolin is an Associate Professor of Law at the University of Baltimore School of Law.

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