//  6/22/17  //  Commentary

Last Monday, I published a post analyzing the constitutionality of the President’s decision to block certain critical followers from his @realDonaldTrump Twitter handle.  A number of new developments give further support to the claim that the President violated the blocked users’ First Amendment rights.

Here’s a quick update.  It covers three items:

  • The Supreme Court decided two important free speech cases this week that bear on this issue:  Packingham v. North Carolina and Matal v. Tam.
  • In its entry ban decision last week, Hawaii v. Trump, the Ninth Circuit relied on one of the President’s recent @realDonaldTrump tweets.
  • A number of other commentators have posted helpful analyses of the topic.

U.S. Supreme Court

Packingham v. North Carolina:  On Monday, the Court held that a North Carolina law that bans registered sex offenders from using social media violates the First Amendment.

Justice Kennedy, writing for the Court, expounded on the importance of social media to the modern public sphere:  “While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear.  It is cyberspace—the ‘vast democratic forums of the Internet’ in general, and social media in particular.”  Slip. op. 4-5 (citation omitted).  The majority even went so far as to draw a tacit analogy between social media and public streets and parks, the quintessential public fora.

The Court gave a shout out to the importance of Twitter, in particular—highlighting that “on Twitter, users can petition their elected representatives and otherwise engage with them in a direct manner,” and noting that “Governors in all 50 States and almost every Member of Congress have set up accounts for this purpose. ”  Id. at 5.

Packingham is one of the Court’s first cases to apply the First Amendment in cyberspace, and the monumental set of questions on that horizon did not go unnoticed by the Court.  Justice Kennedy underscored that “we now may be coming to the realization that the Cyber Age is a revolution of historic proportions,” and that “we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be.”  Id. at 6.  Given the new and “protean” nature of the internet, the majority cautioned, “the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.” Id.

This dicta further bolsters the blocked users’ claim that the President’s Twitter threads are a designated public forum.

Matal v. Tam: The relevance of the Tam case to the blocked users’ arguments is less obvious—though I still think important.

In Tam, the Court held in favor of “The Slants,” an Asian-American rock group that aims to reclaim the pejorative.  It found that the PTO’s denial of trademark registration to “The Slants” under the Lanham Act’s disparagement provision constituted viewpoint discrimination in violation of the First Amendment.

I suspect we are going to remember Tam primarily as another step in the First Amendment’s recent deregulatory turn, as Rebecca Tushnet has argued.  (A couple of my more academic thoughts on that turn can be found here and here.)

But the Court’s broad understanding of viewpoint discrimination articulated in Tam is also of significance.  The Court concluded that “[g]iving offense is a viewpoint,” slip op. at 22, even though the law was neutral as to which disparaging viewpoints it prohibited.  For example, the law equally barred the registration of disparaging marks about Republicans and Democrats, and whites and blacks. 

Tam also repeatedly emphasizes that viewpoint discrimination is anathema to the First Amendment (at least generally).  Writing separately to explain in greater detail why protections against viewpoint discrimination apply to trademarks, Justices Kennedy, Ginsburg, Sotomayor, and Kagan stress that “[a] law found to discriminate based on viewpoint is an ‘egregious form of content discrimination,’ which is ‘presumptively unconstitutional.’” Slip op. 2 (Kennedy, J., concurring in part and in the judgment).

The President’s decision to block critical users on Twitter almost certainly would have qualified as viewpoint discrimination prior to Tam, but the case provides a recent and resounding affirmation of the applicable constitutional principles.

Ninth Circuit Entry Ban Ruling

Second, the Ninth Circuit in its recent entry ban decision explicitly relied on one of the President’s @realDonaldTrump tweets to analyze the asserted bases for the ban.  Judicial recognition of the President’s tweets in that litigation arguably buttresses the blocked users’ claim by suggesting that the President’s tweets are official statements.  That may not mean that the account is governmentally run for public forum doctrine purposes, but it further suggests that conclusion. 

Commentary on @realDonaldTrump & the First Amendment

Finally, I want to flag a few discussions of note on the President’s blocking of Twitter followers.

  • Eugene Volokh has two great posts on the Washington Post (here and here).
  • Bob Loeb published a discussion on Lawfare.
  • Noah Feldman has a post on Bloomberg.
  • And John Samples published a piece on Cato.

Both Volokh and Loeb agree that a, if not the, key question is whether @realDonaldTrump is, in Volokh’s words, “the work of Trump-the-man” or “Trump-the-President.”  Volokh tentatively thinks it’s the former, while Loeb concludes it’s the latter.  Feldman and Samples each make a variant of the argument that because Twitter is a private company, the First Amendment doesn’t apply to it at all.  That argument seems to me to be a red herring: to say that Twitter is a private company that allows users to block followers does not answer whether the President can constitutionally use that function to block his critics. 


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