Earlier today judge Naomi Reice Buchwald issued a 75-page decision holding that Trump violated the First Amendment when he blocked the plaintiffs on Twitter. For those who don’t use Twitter (lucky you!), “blocking” someone means that it is difficult to view and impossible to interact with their tweets when you’re logged in with your account. You can still view the tweets when logged out of your account, and you can interact with the tweets on a separate account, but blocking does cause a tiny amount of inconvenience for people who wish to vent at Donald Trump online.
While the decision isn’t as egregious as some recent court decisions against the Trump administration, it’s still wrong. Here’s the core question. Did Donald Trump create a forum “owned or controlled by the government” when he decided to use his personal Twitter account for official purposes? The judge says yes. I disagree. In reality, the forum is owned entirely by Twitter, and it’s controlled entirely by Twitter. For example, read these words from 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, (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. We will make reasonable efforts to notify you by the email address associated with your account or the next time you attempt to access your account, depending on the circumstances.
Using Twitter isn’t like renting out a concert hall or reserving space in a public park. Twitter is in command, not Trump, and to the extent that Trump does anything, he does so only with Twitter’s permission. Twitter can alter his account — and his account alone — in its sole discretion and according to its corporate whims. “Control” is simply not a word that applies to anyone’s Twitter account. Twitter’s terms of service are so sweeping, that even Trump’s speech isn’t solely Trump’s speech any longer. Twitter can use his words at will:
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). This license authorizes us to make your Content available to the rest of the world and to let others do the same.
In other words, Trump is just like any of us. He’s playing in Twitter’s sandbox. He’s using Twitter’s forum according to terms and conditions that Twitter — and Twitter alone — sets.
There are other issues in play — such as whether the plaintiffs suffered a legally-cognizable injury when their sole complaint is that they can’t use the Twitter account of their choice to reply to Trump’s tweets, or whether Trump’s own free speech rights are impaired when a federal judge prohibits him from blocking hostile accounts — but ultimately the decision is wrong for the simplest of reasons. Donald Trump’s Twitter feed isn’t a government-controlled forum.