Bench Memos

Law & the Courts

Twitter and the First Amendment — Part I

(@realDonaldTrump handout via Reuters)

Last week, a federal judge held that the First Amendment prevents the President from blocking political opponents on Twitter. This is not the first such decision from a District Court (though not all of them have resulted in a victory for the plaintiffs), but the first one where the President is the defendant. I remain deeply skeptical of the arguments underpinning these decisions.

The thrust of the plaintiffs’ case is that blocking them on Twitter is discrimination based on their point of view, something that the First Amendment rarely, if ever tolerates. In this blog post, I will address why, in my view the argument does not hold.

There are three other potential arguments in support of the proposition that politicians cannot block Twitter users. First, it can be argued, blocking someone it makes it harder for that individual to get his viewpoint across directly to the politician thus arguably negating his right to petition for redress of grievances. Second, the block may impinge on the blocked individual’s ability to receive information — an interest long held to be protected by the First Amendment. Finally, blocking someone might infringe on that person’s freedom of association with like-minded individuals. I will discuss these three arguments in a follow-up post. Ultimately, though, I am yet to be convinced that blocking someone on social media constitutes a violation of the First Amendment under any of these theories.

No question that blocking someone because they disagree with you is viewpoint discrimination. But of course viewpoint discrimination is not permissible only if 1) it is done by the government and 2) it happens in a forum that is otherwise open to the public. (In other words, I as a private individual can discriminate against any viewpoint I like. Similarly, the President need not invite people holding opposing viewpoints to his Cabinet meeting.) Assuming that tweets by politicians are governmental actions (which in and of itself is not always a clear-cut case), the question then is whether Twitter or other social-media platforms are a public forum such as a street, a park, etc. That proposition seems highly dubious.

In order to qualify as “public forum” the government must be the one that owns or at least controls the space. Thus public streets and parks are public fora. Outright ownership, of course, is not required. The government may be a lessee from a private landlord, but have sufficient control over the space to have it treated as if it were an owner. But Twitter is not government owned or controlled. Rather, it is a private platform, controlled by Twitter itself.

In a traditional public forum, an individual has a right to engage in whatever outrageous or vile speech he wishes. Should he choose to march down the street, in a heavily Jewish neighborhood while clad in a Nazi uniform, he can. If someone wishes to carry signs down Pennsylvania Avenue advocating genocide of one group or another, they cannot be prohibited from doing so. But if someone tweets the same sign or uses a Nazi swastika as their avatar they would likely be banned by Twitter in very short order. So whereas all viewpoints, no matter how odious, have to be permitted in a public forum, the same simply doesn’t hold true for social media. That alone suggests that the control over who gets to talk is exercised not by the government but by the corporate entity.

The politicians themselves are subject to the same rules. Indeed, there have been numerous calls for Twitter to ban President Trump and other politicians both in the United States and abroad. Twitter has rejected these calls, but not because it is powerless to do so, but based on their own judgment as to what is in the company’s and the country’s interest. But if Twitter were to ban a particular politician, there is little that he could do beyond bringing social pressure. In fact, Twitter has done just that when it rejected certain campaign materials that a Tennessee Senate candidate attempted to distribute. (After social pressure, the company reversed course.) It is true, of course, that private companies are not constrained by the Constitution and therefore can often do things that the government may not. But that is somewhat beside the point in this case. The preliminary issue is not whether the ban is a governmental action (it very well may be), but whether Twitter is a public forum. And it appears that unlike in a public forum where views of whatever kind can be expressed, Twitter puts significant constraints on both the content and the viewpoint of speakers. In other words, someone using Twitter has no expectation of complete freedom to say what he likes, whereas someone using a street corner does.

To me, it appears that Twitter is more like a radio call-in show that is hosting a government official as a guest. The show may be freely available to any member of the public, but someone who calls in will likely be screened and if necessary disconnected whenever in the opinion of the radio station or the guest their comments are unhelpful to the conversation. Whether the radio controls are monitored by private employees or by White House communication director or both is irrelevant since no one calling into the show reasonably expects to have untrammeled ability to express whatever viewpoints they would like. Twitter is no different. Neither is a public forum even as both are designed to permit an unlimited number of individuals to have access to the information being shared.

Furthermore, much like on a call-in radio show, there are at least two speakers involved — the government official and the person attempting to respond (whether with praise or criticism). If the government official is unable to exercise some control over what speech is intermixed with his own speech, the effectiveness of his speech will be diminished. 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. Such a sharing would sap the message the politician is trying to deliver of its effectiveness. That is true even if the politician is already sharing a stage with like-minded individuals who help him amplify his own message. Similarly, allowing people to critically sub-tweet on your account has a potential effect of diluting the message you are trying to get out there, while allowing people to sub-tweet in agreement with the original message, amplifies it. The bottom line is, even if Twitter were a public forum, it doesn’t follow that anyone has to share their corner of that forum with anyone else. It would be a different matter if President Trump managed to convince Twitter’s CEO to ban individuals critical of the President from the platform altogether. But it’s hard for me to see how the First Amendment requires anyone (including the President) to promote speech that they disagree with.

Editor’s Note: Read Part II here.

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

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