Last year, a judge in the Southern District of New York ruled that, unlike every other person on earth, the president of the United States did not have the right to block people on Twitter. The decision in that case, Knight First Amendment Institute v. Trump, and its flawed First Amendment reasoning were upheld yesterday by a three-judge panel of the Second Circuit, and look destined to be appealed to the Supreme Court.
In making Twitter into a public forum, the court has scrambled the conventional wisdom on what private social media companies can do with their sites. In the name of sticking it to the president, they may also have paved the way for congressional regulation of the social media giants.
The President’s Twitter Account Is Public Property?
How do we get from a private company to a state-owned physical venue? The district court got there by squinting at the ownership of the president’s Twitter account. As I wrote in 2018:
The mental acrobatics come in where the First Amendment applies to public forums because that Amendment, of course, does not restrict private limits on speech or assembly. It is not enough that Twitter be some kind of virtual gathering space, which it certainly is; it must be a public gathering space. In terms of the precedents relevant to this case, that means a place that is… ‘owned or controlled by the government.’
There is a lot of weight resting on that word ‘or.’ Clearly, Twitter is not owned by the government. There is hardly even a decent argument to say that the @realDonaldTrump account is owned by the government, any more than the President’s clothes, books, or other personal property is. All presidents own things in their individual capacity, and that ownership does not pass to the government for the four or eight years in which they are employed in Washington.
But is it controlled by the government? The three people with access to the account (Trump, Dan Scavino, and Sarah Huckabee Sanders) are all government employees. But not everything a federal government employee touches comes under the control of Uncle Sam. Federal employees drive to work in privately owned cars and live in privately owned houses. Even things they use at work, like the clothes they are wearing, do not pass into the public domain. Some government employees have even been known to keep work e-mails on a privately owned server. And even though Scavino and Sanders use the account as a part of their duties, that is little different from a presidential valet picking out the President’s clothes, or the Secret Service staying at a president or vice president’s private home.
Citing Cornelius v. NAACP (1985) and Lehman v. City of Shaker Heights (1974), the district court judge hammered a square peg into a round hole. The court of appeals agreed with her craftsmanship. Senior Circuit Judge Barrington Parker wrote for the three-judge panel that in blocking users he does not like, the president “engaged in unconstitutional viewpoint discrimination.”
While declining to rule on whether that rule would apply to a politician’s private account, the court held that “the First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise-open online dialogue because they expressed views with which the official disagrees.”
Parker admits that the @realDonaldTrump account was private when Trump created it in 2009, and that it will become private again when he leaves office. But somehow, in 2017, Trump’s private property was converted to government property without compensation or consent.
He mentions the Presidential Records Act of 1978, which established public ownership of the president’s official records, but that is to miss the point. The act requires that a president’s communications be recorded for prosperity in a form owned by the government—all of which has been done by recording copies of the president’s tweets. But it says only that the people own the things the president writes, not the pen with which he wrote them. They can have the record, but the thing that produced them is his.
Are Twitter Replies a Public Forum?
The president’s tweets give rise to retweets, replies, and other conversation that the plaintiffs in Knight First Amendment Institute claim create an important forum for public discussion. If you have ever witnessed the aftermath of a presidential tweet, you will know right away that “forum” is not the right word for it.
In the first aftershock, replies from sycophants and resistance grifters stream past each other instantly, each vying for clicks, likes, and attention. Next follows a wave of retweets, usually with some commentary about the original words. Finally, after a second to breathe, pro- and anti-Trump partisans reply to each other over the keyboard in increasing incoherence. It is less a forum and more an explosion of political choler.
Even if you take that as a forum, is it a public forum? Twitter can ban anyone it wants from the site, and does so often. Earlier this year, the company banned two of the thirstiest Trump-repliers, the Krassenstein brothers. Last year they banned InfoWars host and conspiracy theorist Alex Jones, as well.
Other social networks do the same: Facebook banned Nation of Islam leader Louis Farrakhan in May for his long history of anti-Semitic statements on the site (Twitter has, of yet, declined to ban Farrakhan). If it is a public forum, why is control of it granted to a private company? If the court is treating Twitter as a public utility, can Congress do the same? Should they?
The President Must Listen to Me or I’ll Sue
The plaintiffs claim that, while nothing stops them from reading the president’s tweets when they are not logged into Twitter, their injury comes from not being able to reply to those tweets using their accounts. This amounts, in their telling, to censorship.
It is a very 21st-century version of the word. No state actor is stopping any of these people from saying anything; the injury they claim is that the president refuses to listen.
Judge Parker notes that “the best response to disfavored speech on matters of public concern is more speech, not less,” but none of the plaintiffs are speaking any less often or to a lesser degree than they want to speak. Their demand to be heard and seen as special is what is harmed here, and their source of attention from anonymous internet users is lost.
That may be a psychic injury to fragile egos, but it hardly constitutes an injury in the eyes of the law. Twitter’s bans on users look a lot more like censorship than one user declining to interact with another.
Public Officials Have Private Lives, Too
It is now the law in New York, Vermont, and Connecticut that a public official may not block anyone on Twitter. If the Supreme Court rules the same way, it will become the law in the rest of the country, too.
This makes every act of an officeholder into an official act. People in public office retain private interests and private lives, but if this ruling stands they will have to let everyone in America intrude on them to the extent they are conducted online. Moreover, a public official is now seemingly immune from Twitter ever banning him from their site, since to do so would destroy the “forum” the court is protecting here.
When Pennsylvania state Rep. Brian Sims livestreamed himself harassing a woman on the street, it became a viral sensation. In the aftermath, his Twitter account (@BrianSimsPA) became the locus of a great deal of feedback (the Second Circuit might call it a forum).
In response, Sims blocked many of those who disagreed with him. He later made his account private—effectively blocking everyone who had not previously followed him—before reemerging from seclusion after the heat died down. According to the precedent in Knight First Amendment Institute v. Trump, Sims’s actions were illegal viewpoint discrimination in a public forum.
Nobody Has a Right to Force His Speech on Others
He is far from the only politician to block someone, and some blocks are well and truly earned. Politicians attract dangerous lunatics, and it is a lot to ask that they be required by law to listen to every vile screed directed their way. Lawyers often say that “hard cases make bad law.” It is true. When the facts appeal to a judge’s worldview, there is a great temptation to bend the law to make it fit. In cases involving the president, this happens often.
No one is being censored here, nor is the government excluding anyone from a public forum. What happened is that people were rude to the president online—as is their right—and he blocked them—which should be his right. Voters, reporters, and pundits have been critical of Trump’s use of Twitter since he first entered the presidential race, and many people are still not happy about it. But not everything ugly or unseemly is unconstitutional.
The court made the law fit the facts, but in doing so they have opened a Pandora’s Box of free speech issues about social media. Protecting the hecklers’ right to reply also means requiring social media sites to continue to host public officials’ accounts, whether they follow the rules or not.
It also opens the door to federal regulation of social media forums that the court has decreed to be public. If Twitter is smart, they will join the president in calling for this unwise ruling to be overturned.