Bench Memos

Law & the Courts

Twitter and the First Amendment — Part II

(Pixabay)

In Part I of this blog post, I discussed why I don’t think Twitter is a public forum, a condition that would be necessary for any claim that viewpoint discrimination in that realm is constitutionally prohibited. In this part I want to address other potential arguments that can be made against permitting government officials to ban critical Twitter users and why I find them equally unconvincing.

Some of my colleagues have suggested to me that when a government official bans someone from his Twitter feed, that official impinges on the banned person’s First Amendment right to “petition for redress of grievances.” But that argument fares no better than the “viewpoint discrimination” argument.

The Constitution certainly protects the right to petition for redress of grievances. It does not, however, guarantee that anyone will receive or pay any attention to such a petition. That is not surprising. The guarantee grew out of the abuses of the English monarchs, who when displeased with the contents of various petitions would order the imprisonment of the petitioners. This is why being Speaker of the House of Commons was considered to be a dangerous job and the elected individual had to be dragged to chair (a practice that still survives in a theatrical form). So the right to petition for redress of grievances only encompasses being free from penalties for doing so. It doesn’t protect any specific mode of petitioning (e.g., as a constitutional matter, the White House can choose not to accept DHL packages) nor does it guarantee that anyone in government will pay any attention to the petitioner. A Twitter ban doesn’t preclude someone from continuing to petition for redress of grievances. It is no different than instruction to office staff to ignore calls coming from a certain number. The blocked individual remains free to protest, write letters, organize campaigns, but he simply won’t be acknowledged by the owner of the Twitter account.

Nor does a Twitter ban interfere with the right to receive information. While no one can be punished for seeking or receiving information, the right does not include the right to be told of information by a particular public official at the time of your choosing. Were it otherwise, CNN could sue the President if he chose not to sit for an interview with any of its reporters but was amenable to engaging with other networks. Or a regular member of the public would have a cause of action for having less direct access to politicians then those with press credentials. A number of years ago, the Fourth Circuit considered a similar issue when it heard suit by the Baltimore Sun against Robert Ehrlich, then Governor of Maryland. Gov. Ehrlich, being less than pleased with the news stories by two of the Sun’s reporters ordered that his staff not grant any interviews or offer any cooperation to these particular individuals. When the paper sued, the Fourth Circuit noted “that government officials frequently and without liability evaluate reporters and reward them with advantages of access — i.e., that government officials regularly subject all reporters to some form of differential treatment based on whether they approve of the reporters’ expression.” In other words, the reporters had no constitutional claim to access to the Governor or his staff. It is hard to see why a Twitter user should fare differently.

Finally, blocking someone from viewing one’s account doesn’t affect associational rights because it in no way prevents the blocked person from associating with individuals other that the account’s owner. He can continue to share thoughts with them and even see their re-tweets from the account from which he himself was blocked. The only thing that the block does is preclude the blocked individual from associating with the account’s owner. But, of course, freedom of association runs both ways. No one has to associate with those whom he does not wish to associate with. Politicians are no different in this regard, and indeed we see it all the time when in order to showcase their disapproval of one another they refuse to attend events with each other. For example, a number of Democrats boycotted Donald Trump’s inauguration and State of the Union. Similarly, as a matter of constitutional law, President Trump could decline to invite, for example, Senator Warren to any White House official function simply because he doesn’t like her speeches and votes.

In the next and last part of this blog post I will focus on the problems that are likely to arise if the decision prohibiting politicians from blocking Twitter followers is upheld.

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

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