Trump’s Twitter Blocking May Violate First Amendment

Twitter

President Trump’s irate and irrational tweets have already gotten him in plenty of trouble, and will, no doubt, continue to be an issue as he pushes for approval of his controversial travel ban before the Supreme Court. Now, free speech advocates are condemning Trump not just for what he’s saying on the platform, but for what he’s preventing his constituents from saying to him.

In a letter sent to the President today, the Knight First Amendment Institute, an offshoot of the larger Knight Foundation that focuses on protecting First Amendment rights in the digital age, argued that when Trump blocks people on Twitter, he’s violating their right to free speech. The letter contends that the @realdonaldtrump Twitter feed is a “designated public forum,” no different from a city council or school board meeting. The First Amendment bars the government from censoring individuals in such forums, based on their views. Through the letter, the Institute asks Trump to unblock these accounts and stop blocking people in the future. If he doesn’t, the Institute will file a lawsuit, according to Katie Fallow, a senior fellow there.

“This is the bedrock principle,” says Fallow. “If there’s any kind of forum the government is operating for expression, it may not discriminate on the basis of viewpoint.”

The Institute provides evidence indicating the President has done just that. One Twitter user, @AynRandPaulRyan, was blocked after tweeting a gif of the Pope looking grim with President Trump.

Another, @joepabike, found himself blocked after tweeting about the President’s decision to pull out of the Paris Agreement last week.

By blocking certain people on Twitter, President Trump has made it impossible for them to speak directly to him. They can’t see his Tweets. He can’t see theirs. And they can’t participate in the reply threads that are open to the general population. But the biggest issue, Fallow says, is that Trump is specifically blocking people based on how critical they are of him. Other people on Twitter may do that regularly, but when you’re a government official, Fallow argues, different rules apply. “One of our major missions is to be committed to free speech in the digital age and make sure traditional First Amendment principles apply to new technology,” she says.

But not all First Amendment scholars are convinced the Institute would have a strong case in court.

“The question of whether the President’s Twitter feed is a public forum is a more complicated question,” says Neil Richards, a professor at Washington University’s Law school, specializing in First Amendment theory. “The law here is famously muddled, because it’s trying to prevent the government from discriminating against people who speak on public streets and parks, but it’s trying to fight the urge to make everything a public forum.”

If Twitter had been invented by the government explicitly as a portal of communication between the president and his constituents, the Institute might have a stronger argument, Richards says. But the @realdonaldtrump handle actually predates Trump’s term in office. And while it is the account he uses most often, it isn’t even his official @POTUS account, which was created by the White House.

Fallow acknowledges that the question of whether government social media accounts are public forums is a relatively new one. But she points to a case called Davison v. Loudoun County as evidence that the courts may have the Institute’s back. In that case, a man named Brian Davison argued that Loudoun County, Virginia’s board of supervisors violated his First Amendment rights by deleting a comment he left on the chair of the board’s Facebook page. Loudoun County moved to get the case dismissed, arguing that the Facebook page was her personal account, not her official government account. The court didn’t buy that argument and denied the county’s move to dismiss.

Whether or not the Knight Institute’s argument would win in court, Richards says, it’s still a critical argument to make. “Freedom of speech is more than what the First Amendment protects,” Richards says. For instance, creating a culture of truly free speech not only means protecting the press in court, but refraining from publicly disparaging the press on a daily basis, as the President is wont to do.

“Freedom of speech is not just what happens in lawsuits,” Richards says. “What the Knight Institute is doing is a useful public service that starts an important conversation.”

That conversation is sure to continue as the President looks to the Supreme Court to decide the fate of his executive order, which attempted to ban immigration and travel from seven predominantly Muslim countries, before it was blocked in a Hawaii court in March. The President has since taken to Twitter repeatedly to defend the ban.

The ACLU, meanwhile, says it may use these tweets in its Supreme Court arguments against the executive order.

If and when that day comes, the question of how the law ought to treat Trump’s tweets could become a central part of the court’s debate.

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