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Twitter Users Blocked By @RealDonaldTrump Claim First Amendment Violation

Trump Twitter

No President before Donald Trump has made more use of social media than he has done both during his campaign and since he has become President. Even before he became President, Trump used his personal account, @RealDonaldTrump, which has been in use since May 2009, to publicize appearances on talk shows, promote his shows The Apprentice and Celebrity Apprentice, to pontificate about political matters, and to attack his critics on a regular basis. During his aborted campaign for the White House in 2012, which in retrospect looks more like a publicity stunt to promote his reality show, he used the account mostly as a forum on which to push out to the public a wide variety of bizarre conspiracy theories regarding President Obama, beginning of course with the discredited idea that the President was not born in the United States and thus not eligible to serve as President. Once he did get into the race for President, of course, the account became his primary means of communication with his supporters and, quite often, a means by which he would share opinions that would later prove to be controversial and thus garner much media attention. Notwithstanding the somewhat obvious security concerns, Trump has continued to use his personal Twitter account (there is also an “official” Presidential Twitter account, @POTUS, but it appears that this one is operated exclusively by White House Staff) to broadcast his views to the public, often in a manner that had distracted his White House from whatever agenda it may have during a given week, and White House Press Secretary Sean Spicer has said that Trump’s Tweets are official White House policy statements.

Notwithstanding the content of Trump’s tweets, his widespread personal use of Twitter has offered the public a glimpse into the thoughts of the President of the United States, and an ability to at least theoretically communicate with him that doesn’t go through official channels. For those of you unfamiliar with how Twitter works, one user can communicate with another by simply replying to one of their messages, or by sending a message that includes their Twitter handle. Such messages would appear as “mentions” on whatever device or means the user is using to access Twitter. There are however, ways to prevent people from being able to communicate you as a Twitter user. One method is to “mute” a user, which prevents their messages to you from showing up in your “Mentions.” This function, however, doesn’t prevent them from following you or otherwise being able to read your tweets. The other method is to “block” a user, which both prevents their messages to you from appearing in your timeline and prevents them from seeing anything you tweet. There is no way for someone to know if they’ve been muted by a user, but if they have been blocked this can be easily discerned by going to a user’s home page, where they would see a message saying that they’d been blocked from viewing that users activity. Now, a group of Twitter users who have been blocked by the personal Twitter account of President Trump are claiming that that their First Amendment rights are being violated:

WASHINGTON — Lawyers for Twitter users blocked by President Trump after they criticized or mocked him are asking him to reverse the moves, arguing that the Constitution bars him from blocking people on the social media service.

The request raises novel legal issues stemming from Mr. Trump’s use of his Twitter account, @realDonaldTrump, to make statements about public policy. In a letter sent to Mr. Trump on Tuesday, lawyers for several users he has blocked argued that his account was a “public forum” from which the government may not constitutionally exclude people because it disagrees with views they have expressed.

“This Twitter account operates as a ‘designated public forum’ for First Amendment purposes, and accordingly the viewpoint-based blocking of our clients is unconstitutional,” the letter said. “We ask that you unblock them and any others who have been blocked for similar reasons.”

The letter implies that if the Trump administration does not comply, a lawsuit may follow. The blocked Twitter users are represented by the Knight First Amendment Institute at Columbia University, whose executive director, Jameel Jaffer, said in a statement that Mr. Trump did not have a right to exclude his critics from engaging with his posts.

“Though the architects of the Constitution surely didn’t contemplate presidential Twitter accounts, they understood that the president must not be allowed to banish views from public discourse simply because he finds them objectionable,” Mr. Jaffer said. “Having opened this forum to all comers, the president can’t exclude people from it merely because he dislikes what they’re saying.”

The letter said that Mr. Trump’s blocking of users on Twitter suppressed their free-expression rights in several ways. Users of blocked accounts cannot follow Mr. Trump and they have difficulty viewing his posts, finding them through Twitter’s search function, learning which accounts follow the president and participating in comment-thread discussions about his tweets, it said.

One of the Twitter users the letter said Mr. Trump had blocked is Holly O’Reilly, whose account is @AynRandPaulRyan.

On May 28, Mr. Trump posted a message about the British prime minister being angry that information about a suspect in the Manchester terrorist attack that Britain had given to the United States had been leaked. Ms. O’Reilly, who identified herself as an organizer of the June 3 March for Truth rally, posted a series of responses to Mr. Trump’s tweet that appeared beneath it, mocking him and promoting the protest, which was held in several locations.

“YOU ARE THE LEAKER, you bloody idiot. God, you’re embarrassing,” her first message said. She followed it up with several others, including a moving GIF image of Pope Francis glancing at Mr. Trump with an uncomfortable expression, above which she wrote, “This is pretty much how the whole world sees you.”

In the letter, Ms. O’Reilly’s lawyers wrote: “Of course, it is easy to understand why you and your advisers might have found our clients’ posts to be disagreeable. Even if the posts were scornful and acerbic, however, they were protected by the First Amendment.”

They added: “The protection of speech critical of government officials is perhaps the core concern of the First Amendment, because the freedom of individuals to engage in this kind of speech is crucial to self-government.”

One of the blocked Twitter users, Holly O’Reilly, has written an Op-Ed about the claims in The Washington Post:

When the president uses social media to communicate about government policy with millions of people and solicits their responses, he can’t silence individuals in that conversation because they don’t agree with him or say mean things. Moreover, when Trump blocks people who are critical of him, the only replies that appear under his tweets are glowing responses from his followers ­— which presents a distorted picture of how Americans really feel about our commander in chief.

If the president wants a private Twitter account to communicate with family and friends, he should be able to block anyone he wants. (I block people all the time.) But this is not that: I was blocked from @realDonaldTrump, the president’s most-followed account. This is a 21st-century violation of free speech.

This isn’t just about Trump, and it’s not just about Twitter. It’s about ensuring that as new platforms of communication are developed, and more and more politicians use social media as a primary way to communicate with constituents, we don’t lose our ability to exercise our First Amendment rights. The Founding Fathers didn’t know that Twitter was going to be a thing, but they certainly provided the framework to make sure that we could always engage with the people who purport to represent us.

Neither the letter from the attorneys representing the two Twitter users involved in this claim nor this Op-Ed piece contain any real legal argument supporting the claim that the First Amendment rights of the Twitter users in question are being violated because they are blocked by the President’s personal account. The main reason for this, it appears, is that there is no real legal precedent that would support this position, and neither do the facts of the individual case. Even if you accept the argument that Trump’s personal account on a social media service not under the control of any government entity is somehow a “public” forum, the suggestion that the decision by an individual user to block or mute someone is somehow a violation of the First Amendment is something that strains credulity, and existing law, far beyond any reasonable means. The fact that Trump is President doesn’t mean that his decision to block an individual user on Twitter is covered by the U.S. Constitution in any respect, and the argument that it is stretches that document far beyond any reasonable interpretation. Moreover, blocking someone on Twitter does not prevent them from posting whatever they want regarding the President or anyone else, nor does it deprive them of the ability to speak out on a variety of issues. As Jazz Shaw puts it, Donald Trump is no more violating the First Amendment when he blocks a user than he would be if he declined to accept someone’s friend request on Facebook. There is quite simply no First Amendment issue involved here at all. And I say this as someone who is generally a First Amendment absolutist who views any restriction on freedom of speech skeptically regardless of the justification.

Over at The Volokh Conspiracy, Eugene Volokh has a detailed post setting out the potential First Amendment issues raised by the letter to Trump and the fact that he has blocked certain users from his account. While he doesn’t reach a definitive conclusion regarding the matter, it seems clear that the legal argument in favor of the idea that this is a First Amendment issue quite weak indeed. Meanwhile, Harvard Law Professor Noah Feldman states the argument against the First Amendment claims being made in a shorter post and does it quite well. As Feldman puts it, the core question is whether Trump’s decision to block a user from viewing his personal account is whether it constitutes “state action”:

[I]t’s highly likely that there is no state action when blocking the followers takes place on Twitter, a privately owned web service/social media platform.

The whole phenomenon of blocking followers is part of Twitter’s design. Put another way, who can see whom on Twitter isn’t ultimately a product of decisions by users. It’s a product of decisions made by Twitter, which allows users to block.

Trump isn’t truly blocking followers, then. Twitter is — because it’s Twitter’s site and system.

Admittedly, Trump himself is a state actor, in his official capacity. And if, as spokesman Sean Spicer said Tuesday, the president’s tweets are to be considered official statements, then perhaps Trump’s Twitter stream can be conceived as an official government pronouncement.

That matters for whether Trump’s tweets are public records that require preservation under the Public Records Act and that may not be deleted. But that’s a statutory question, separate from the question of whether blocking followers is state action.

Even if Trump’s decision to block some followers was found to be a state action, it still wouldn’t be a free-speech violation. That’s because Twitter can’t be a designated public forum, a prerequisite for the Knight Institute’s argument.

A designated public forum arises when the government opens some particular space for speech that might not otherwise be open. That might include a physical space like school buildings made available after hours to civic and educational groups. It could include advertising space on public buses and subways.

And in one important Supreme Court case, Rosenberger v. Rectors of the University of Virginia, it was even held to include “metaphysical” space. 1  A student activities fund was treated a limited public forum, which for most purposes is the same as a designated one.

In a designated public forum, the government can’t discriminate on the basis of viewpoint. But in no case of which I am aware has the designated public forum been a privately owned and controlled space like Twitter.

Indeed, if a lawsuit were brought against Twitter to force Trump to unblock followers, Twitter would be able to argue successfully that its free speech rights allow it to institute any rules it wants.

And it won’t do to say that the Knight First Amendment Institute has addressed itself to Trump, not Twitter. The whole basis for its argument is that Trump has transformed his Twitter stream into a free-speech zone.

Yet imagine if Trump broke Twitter guidelines by using profanity or racial invective. Twitter could block his tweets or shut his account down. That shows his Twitter feed isn’t a free-speech zone after all, but a privately owned channel of communication.

Since Trump decision to block users is not a “state action,” and taking into account the fact that someone who is blocked by Trump can view his Tweets by simply logging out of their account, or using their web browser in “incognito” mode, and going to the home page for Trump’s account, the idea that he is violating the First Amendment by blocking someone just doesn’t have merits. That isn’t to say that blocking critics isn’t potentially a political problem, or that it doesn’t say something about Trump’s character that he’s unwilling to expose himself to opposing points of view. But that’s not a matter for a court to judge, and I would expect that any lawsuit that might be filed in connection with these claims would fail to advance beyond a Motion To Dismiss pursuan to Rule 12(b)(6) of the Federal Rules of Civil Procedure. There may be and are many things wrong with Donald Trump, but violating the First Amendment by blocking people on Twitter is not one of them.

Here’s the letter from the Knight Foundation:

White House Twitter Letter FINAL by Doug Mataconis on Scribd

Related Posts:

About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. CSK says:

    It fills me with anguish to have to side with Trump, or his lawyers, but…in this instance, they’re right.

    Ugh.

    Like or Dislike: Thumb up 3 Thumb down 0

  2. @CSK:

    To be fair, neither Trump not his attorneys have responded to this claim.

    Like or Dislike: Thumb up 1 Thumb down 0

  3. michael reynolds says:

    @AynRandPaulRyan follows me and has retweeted me. So my question is this: what’s a guy gotta do to get blocked? Am I not offensive enough? That’s hard to believe.

    Like or Dislike: Thumb up 0 Thumb down 0

  4. Daryl's other brother Darryl says:

    Sarah Huckabee-Sanders:

    “I can definitively say the President is not a liar.”

    Don the Con is ruining a lot of peoples credibility….

    Like or Dislike: Thumb up 2 Thumb down 0

  5. CSK says:

    @Doug Mataconis:

    I know. I hate being fair when it involves Trump.

    @Daryl’s other brother Darryl:

    The only possible response to that comment is a loud horselaugh.

    Like or Dislike: Thumb up 1 Thumb down 0

  6. Scott says:

    On the other hand, Twitter is a private company and could, even on a whim, delete Trump’s account. Which would amuse me no end.

    Like or Dislike: Thumb up 0 Thumb down 0

  7. Pch101 says:

    Since Trump decision to block users is not a “state action”…

    When the president speaks to the public about policy matters, the views of the White House, etc., then that’s exactly what it is.

    Imagine if the White House blocked your access to its .gov website because it didn’t like you. It would make no difference if the website was built by or hosted by a third party.

    Like or Dislike: Thumb up 5 Thumb down 0

  8. James Pearce says:

    If Twitter had an edit function, we wouldn’t have “covfefe.” If Twitter didn’t have a 140 character limit, we wouldn’t have all the “tweet storms” and Donald Trump’s presidency, which could be reduced to 140 characters, or just two words: It sucks.

    If Twitter didn’t have the block function, we might have to find some kind of consensus not just as to what constitutes proper behavior and speech, but also how we should treat our fellow man.

    Like or Dislike: Thumb up 2 Thumb down 0

  9. HarvardLaw92 says:

    This is quite possibly the dumbest thing I have read this week …

    Like or Dislike: Thumb up 5 Thumb down 0

  10. Mu says:

    The potential precedent I see is that courts have ruled that private email accounts can be subject to FOIA requests if they are used for the purpose to avoid “government account” rules. You could make the argument that if Trump uses his personal twitter account to take state action (in the form of official policy statements) that the twitter account has to follow “official account” rules. It might not be a 1A case, but the account might very well be subject to FOIA requests.

    Like or Dislike: Thumb up 0 Thumb down 0

  11. Ebenezer_Arvigenius says:

    This is quite possibly the dumbest thing I have read this week …

    And, I would add, by both sides. The argument for a violation are spacious but the arguments by Feldmann are bordering on the absurd. If his arguments were true, government would have to be prohibited from using private contractors for any of their channels of communication.

    The question whether the service could end their contract (of course) and whether their use is a public forum are distinct. Nothing in the idea of a “public space” requires that space to be under the irrevocable and absolute control of goverment.

    Like or Dislike: Thumb up 1 Thumb down 0

  12. Franklin says:

    @Scott:

    On the other hand, Twitter is a private company and could, even on a whim, delete Trump’s account. Which would amuse me no end.

    That would be amusing. And that’s when the Republicans would claim their 1st Amendment rights were being violated, since they don’t typically remember that brief mention of Congress (i.e. the first word in the amendment).

    Like or Dislike: Thumb up 0 Thumb down 0

  13. Franklin says:

    And regarding the post: If I cared to give it much thought, I’d either side with Trump or point out this is not exactly the worst thing he’s done.

    Like or Dislike: Thumb up 0 Thumb down 0

  14. Pch101 says:

    It’s funny that conservatives who freaked out about and demanded access to Clinton’s emails, which were sent privately and addressed to individuals, don’t care about access to an account that is obviously meant for public broadcast.

    It would seem that there is some kind of mandatory hypocrisy degree that must be earned prior to becoming a member of the right. These folks have zero consistency.

    Like or Dislike: Thumb up 0 Thumb down 3

  15. Franklin says:

    @HarvardLaw92: Apparently you haven’t read anything by Trump’s sons this week.

    Like or Dislike: Thumb up 3 Thumb down 0

  16. Andy says:

    America, F’ Yeah – the country where people will sue over anything.

    Like or Dislike: Thumb up 0 Thumb down 0

  17. Andre Kenji says:

    I don’t know. I think that the idea of Politicians blocking taxpayers from social networks is extremely problematic, regardless of First Amendment issues. Besides that, I thought that Hillary’s Emails were a problem, weren’t they?

    Like or Dislike: Thumb up 0 Thumb down 0

  18. Andy says:

    @Andre Kenji:

    Except taxpayers aren’t actually being blocked from social networks.

    Like or Dislike: Thumb up 0 Thumb down 0

  19. DrDaveT says:

    @Mu:

    courts have ruled that private email accounts can be subject to FOIA requests if they are used for the purpose to avoid “government account” rules

    Not exactly.

    FOIA applies to “agency records”. What counts as an agency record is a function of content and purpose — not of medium or account or what have you. The FOIA rules were originally intended for paper documents; they don’t recognize ‘accounts’ or ‘systems’ or ‘networks’ as being relevant. If you were doing government business, it’s an agency record. Arguing “but it was a private email account!” makes no more sense than arguing “but I wrote it on personal stationery, with my own pen!”.

    Like or Dislike: Thumb up 2 Thumb down 0

  20. RangerDave says:

    @HarvardLaw92 wrote: This is quite possibly the dumbest thing I have read this week

    I don’t know; that’s an understandable initial reaction, but I think there are actually some valid issues to consider. For instance, on the “state actor” question, I think there’s a reasonable argument to be made that because the office of the Presidency and the person who occupies that office are so inextricably linked in the public’s mind, statements addressed to the public at large by a sitting President should be presumptively treated as having been made in an official capacity unless the context clearly indicates otherwise. Since Trump routinely uses his Twitter account to expound on his policies as President, I think the presumption should probably be that he’s speaking/acting in that forum as President, meaning that when he blocks people from accessing and responding to his statements in that forum, he is again doing so as President.

    And on the designated public forum question, I think you can plausibly analogize a Twitter stream to a public meeting with an open mic for the audience to address the host and each other. If the government decides to initiate such a public meeting with an open mic, that’s pretty clearly a designated public forum – whether or not the government owns the building where the meeting is held or the mic on which people speak – and it can’t engage in viewpoint discrimination by barring people it disagrees with from attending or using the mic.

    Beyond the public forum / viewpoint discrimination issue, what if the President were to instead block people from accessing and replying to his Twitter statements explicitly on the basis of their religion or their race? Would that not raise some concerns on the Establishment Clause and Equal Protection fronts?

    Like or Dislike: Thumb up 1 Thumb down 0