//  6/12/17  //  In-Depth Analysis

Lawyers for two Twitter users, who President Trump blocked from his Twitter account after they criticized him online, sent the President a letter last Tuesday asking him to unblock them—or else face legal action.

The letter argues that the First Amendment bars the President from excluding users from engaging with posts on the President’s most-followed Twitter account, @realDonaldTrump, because he disagrees with views they expressed.

More specifically, the blocked users argue that the President’s Twitter account is a “designated public forum” and that the President cannot constitutionally exclude voices from that forum based on their critical viewpoints.  In a statement, Jameel Jaffer—executive director of the Knight First Amendment Institute at Columbia University, which is representing the blocked users—said, “[t]hough 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.”

The Knight Institute’s letter states that the President blocked Holly O’Reilly (@AynRandPaulRyan) from following the President’s account on May 28—shortly after she posted a picture of Pope Francis appearing incredulous and uncomfortable in a meeting with the President, with the caption, “This is pretty much how the whole world sees you.”  That tweet was part of a series of anti-Trump statements O’Reilly posted that day, including ones stating, “God, you’re embarrassing,” and calling Trump a “LEAKER” and a “bloody idiot.”  O’Reilly also identified herself as an organizer of the June 3 “March for Truth” rally.

The President also blocked Joseph Papp (@joepabike) on June 4, after he tweeted, “Why didn’t you attend your #PittsburghNotParis rally in DC, Sir? #fakeleader” in response to the President’s tweet of his weekly address.  Papp then posted a picture of the President’s decision to block him.  The on-screen message Papp received states, “You are blocked from following @realDonaldTrump and viewing @realDonaldTrump’s Tweets.”

The arguments that their lawyers make raise novel constitutional questions:  What’s the status of the President’s Twitter account for First Amendment purposes?  And does blocking users who have been critical of the President raise a constitutional concern?

A “designated public forum” is created when the government intentionally opens up “a place or channel of communication for use by the public at large for assembly and speech.” Cornelius v. NAACP Legal Defense & Educational Fund, Inc., 473 U.S. 788, 802 (1985).  To identify whether the government has created a designated public forum, courts generally “look[] to the policy and practice of the government” and to “the nature of the property and its compatibility with expressive activity.” Id.

The President’s Twitter threads certainly look and feel like a modern forum that is open to the public for expression.  Twitter, like Facebook, is an increasingly crucial channel of public debate, and a space where the public and governmental officials alike share information and opinions about public policy.  When the President tweets—whether about the Paris accord or James Comey—the public responds, often creating long discussion threads many, if not thousands, of comments long.

The President has said that Twitter is where he gets “the honest and unfiltered message out.”  With more than 31 million followers on his @realDonaldTrump account alone (a number that, if accurate, is equivalent to approximately 10% of the American public), Trump’s social media reach is impressive.

Trump’s tweets give uncommon access and insight into official Presidential policy, thinking, and priorities.  A quick review of some of his tweets from the last few weeks alone makes this clear.

Last Monday, following the latest terrorist attack in London, the President took to Twitter to tout the importance of his executive order blocking citizens of six predominantly Muslim countries from entering the United States, key parts of which cannot be enforced because of federal court rulings.  He asserted, among other things, that the “[t]he Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to [the Supreme Court].

Last Wednesday, the President used Twitter to announce that he would be nominating Christopher Wray to be the new Director of the FBI. 

He likewise used Twitter to respond to reports that he had disclosed highly classified national security information to Russian officials; to react to news that he had repeatedly demanded that former FBI Director James Comey pledge loyalty to the President; and to decry how questions about Russia “have taken over the Fake News.” 

Millions of people read, retweeted, and responded to these and other Presidential tweets—sometimes eliciting the President’s response.  As the White House press secretary, Sean Spicer, described in an interview shortly after taking the job, social media gives Trump a “direct pipeline to the American people, where he can talk back and forth with 17 million people on Twitter,” “allow[ing] him to add an element of a conversation that’s never occurred.” 

Twitter thus looks like a forum for expression in which the President engages with the public, and in which the public engages with his views and policies, and the viewpoints of others.  The President’s account also appears unrestricted.  Anyone can follow @realDonaldTrump, and the President appears to take pride in the number of people who do so.  These facts make it hard to argue that the President’s account is inconsistent with expressive activity or limited to the public in any constitutionally meaningful way. 

The bigger question is whether it matters for constitutional purposes that Trump blocked these two users from his nominally personal account, @realDonaldTrump, instead of, say, from his official White House account (@POTUS), or a piece of land owned by the government.  Is the account sufficiently governmental, or under official control, that the President could designate it as a public forum in the first place?

There are strong arguments that it is. 

First, it is not enough to say as a categorical matter, “the First Amendment doesn’t apply to private companies like Twitter.”  Constitutional principles may apply to spaces or channels of communication that the government controls or uses for official purposes, even if they are owned by a private entity.  The Supreme Court has extended the public forum doctrine, for instance, to a theater under governmental lease.  See Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975).  Determining whether there are sufficient indicia of official use or control requires a more nuanced analysis than simply looking at ownership. 

Most obviously here, the President is not just an ordinary private Twitter user.  The @realDonaldTrump account describes its owner as “45th President of the United States of America”—the same tagline used on the @POTUS account.  Nor is @realDonaldTrump a typical personal account, though the President did use that account prior to taking office, potentially complicating the analysis.  As described above, the President uses this account, not to connect with friends or family or as a private citizen, but to engage—explicitly—with the American people in his official capacity on issues of national concern as the President.  It is perhaps for this reason that @realDonaldTrump is the President’s most widely watched account, here and abroad. 

It has been reported that the White House social media director tweets on behalf of the President and that his job includes “oversee[ing the President’s] Twitter, Instagram, and Facebook accounts.”

When asked last week whether Presidential tweets should be regarded as official White House statements, Press Secretary Spicer explained that “The President is the President of the United States, so [his tweets are] considered official statements by the President of the United States. . . .The President is the most effective messenger on his agenda.”   

If the President’s Twitter account is in fact a modern designated public forum, then the President may not exclude critics from engaging with his posts based on their viewpoints.  The government faces a stringent legal burden if it tries to exclude someone from a designated public forum, just as if it excluded someone from a traditional forum like a public park.  

But to what extent does blocking someone from the President’s Twitter account exclude her from the forum?  When the President blocks a follower, the person’s participation is curtailed.  Blocked users cannot follow the President or participate in the comment threads discussing the President’s tweets.  And according to the Knight Institute, blocked users are also limited in their ability to view and find Presidential tweets and to learn which accounts follow him, without complicated workarounds.

Why did Trump block O’Reilly and Papp?  The timing of the President’s move to block them may suggest, as the Institute’s letter argues, that those followers’ critical statements (that is, their viewpoints), played a role in the President’s move. 

If that’s the case, the President’s decision to block them violates the First Amendment.  “It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys. . . . When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant.”  Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828 (1995).   Although the First Amendment allows the government to make “[r]easonable time, place, and manner restrictions[,] . . . restrictions based on viewpoint are prohibited.”  Pleasant Grove City v. Summum, 555 U.S. 460, 469-70 (2009). 

That’s the case even if the President’s distractors use acerbic or mocking language.  As the Supreme Court has repeatedly emphasized, the First Amendment reflects a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”  New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

The uncertainty in the Twitter users’ claim stems primarily from the application of established (if not always clear-cut) constitutional principles to new media.  In a more traditional context—say, a town hall meeting—a claim like this would be relatively straightforward.  But we should be similarly concerned about the ability of public officials to silence dissenting voices in digital spaces, as vital public debate increasingly occurs online.

As Justice Kagan recently observed, Twitter’s users now include “[a]ll 50 governors, all 100 senators, [and] every member of the House.”  No matter how the White House responds, the issues raised by this letter will become more and more important over time.

Disclaimer:  Amanda has consulted with Knight Institute lawyers about these issues. 

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