Tuesday, July 9, 2019

Court says Trump violated the First Amendment in blocking Twitter dissenters

A businessman with no political experience was elected to public office a few years ago. He was a different kind of politician, one who zig-zagged on policy and overruled his advisors without telling them in advance. He also began utilizing social media to communicate directly with the public, triggering controversy with off-hand comments that sometimes contained spelling and grammatical errors. This social media platform allowed his constituents to talk back. Some constituents were not fans of his, so he cut them off and blocked them, shutting them out of the public debate. 

The man I'm talking about is the president of the United States, and the social media platform is Twitter. There was a time when a presidential press conference was a big deal, even a bigger deal when the president consented to an interview by a serious journalist who could ask real questions. We are not seeing these press conferences anymore. They used to be the only game in town. Richard Nixon never had Twitter at his disposal. Neither did Ronald Reagan and Bill Clinton. Twitter does not offer much, but the public can talk back directly to any politician with a Twitter account. So what happens when the president blocks people from seeing his tweets?

The case is Knight First Amendment Institute v. Donald J. Trump, issued on July 9. The facts are not complex. Trump conceded in this litigation that he blocked some Twitter followers because he did not like what they had to say. The Court of Appeals (Parker, Hall and Droney) says this constituted viewpoint discrimination in violation of the First Amendment. While Trump's lawyers argued that his Twitter account was not a public forum but, instead, a private outlet which Trump started before he wandered into the White House, the Court of Appeals disagrees, as his current Twitter thing is largely devoted to discussing public policy and prominently states that Trump is the 45th President of the United States. What started out as a private forum is now public. As Judge Parker writes, the current Twitter account is a "channel for communicating and interacting with the public about his administration.” And, "The public presentation of the Account and the webpage associated with ii bear all the trappings of an official, staterun account." Believe it or not, the National Archives regards Trump's tweets as official government records.

Having squared that away, the Court of Appeals next determines whether the Twitter account is a public forum. The forum analysis is usually tricky, as not all speech on government property or even government speech creates a public forum that would prohibit viewpoint discrimination under the First Amendment. The analysis here is not complex. The Second Circuit finds the Twitter account is in fact a public forum, which places strong restrictions on how the government may restrict speech in connection with that forum. As the Court says, "Opening an instrumentality of communication for indiscriminate use by the general public creates a public forum. The Account was intentionally opened for public discussion when the President, upon assuming office, repeatedly used the Account as an official vehicle for governance and made its interactive features accessible to the public without limitation. We hold that this conduct created a public forum."

As I said, viewpoint discrimination is prohibited in a public forum. The Court holds that Trump committed a First Amendment violation in blocking his critics. The panel summarizes its reasoning this way:

the speech restrictions at issue burden the Individual Plaintiffs’ ability to converse on Twitter with others who may be speaking to or about the President. President Trump is only one of thousands of recipients of the messages the Individual Plaintiffs seek to communicate. While he is certainly not required to listen, once he opens up the interactive features of his account to the public at large he is not entitled to censor selected users because they express views with which he disagrees.
Finally, the Court of Appeals rejects Trump's arguments that his Twitter account is really government speech which does not require dissenting responses. There is such a speech classification, such as when the government makes an official pronouncement. But that is not this case, as the Twitter account actually involves comments and feedback from thousands of members of the public. This is also a tricky area of First Amendment speech. But it provides Trump with no defense. As the Court writes:

Considering the interactive features, the speech in question is that of multiple individuals, not just the President or that of the government. When a Twitter user posts a reply to one of the President’s tweets, the message is identified as coming from that user, not from the President. There is no record evidence, and the government does not argue, that the President has attempted to exercise any control over the messages of others, except to the extent he has blocked some persons expressing viewpoints he finds distasteful. The contents of retweets, replies, likes, and mentions are controlled by the user who generates them and not by the President, except to the extent he attempts to do so by blocking. Accordingly, while the President’s tweets can accurately be described as government speech, the retweets, replies, and likes of other users in response to his tweets are not government speech under any formulation. The Supreme Court has described the government speech doctrine as “susceptible to dangerous misuse.” It has urged “great caution” to prevent the government from “silenc[ing] or muffl[ing] the expression of disfavored viewpoints” under the guise of the government speech doctrine. Extension of the doctrine in the way urged by President Trump would produce precisely this result.
This is a highly-political case only because the defendant is a controversial president. I seriously doubt the judges on this case are Trump fans, and they know what the rest of us know: the president's Twitter feed is something else. The Court, however, wraps up its analysis with a gentle reminder that in today's rough-and-tumble speech environment, the way to deal with disfavored speech (including those of presidential critics) is not suppressing that speech but allowing it. "In resolving this appeal, we remind the litigants and the public that if the First Amendment means anything, it means that the best response to disfavored speech on matters of public concern is more speech, not less."

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