Donald Trump is an avid user of Twitter, and that includes Twitter’s “block” feature. When Trump blocks another user, that user can no longer read Trump’s tweets or reply to them. Legal scholars at Columbia University’s Knight First Amendment Institute say that’s a constitutional problem.
It’s not an obvious one, though.
The Columbia trio is threatening to sue the government on behalf of two Twitter users who have been blocked in recent weeks after mocking the president on the platform.
“Blocking users from your Twitter account violates the First Amendment,” the lawyers write in a letter to Trump. “When the government makes a space available to the public at large for the purpose of expressive activity, it creates a public forum from which it may not constitutionally exclude individuals on the basis of viewpoint.”
Others doubt this argument would stand up in court. “I don't think it's very credible,” says Ken White, a First Amendment litigator who blogs at Popehat.com. “I don't know that Twitter blocking is the same in any meaningful way as preventing someone from speaking or kicking them out of a public forum.”
Getting blocked by Trump creates only a small burden, at most, on anyone’s ability to participate in Twitter conversations. And White argues that wrapping politicians’ use of social media up in red tape could ultimately backfire, discouraging them from participating in these more open and democratic communications media altogether.
Social media can be a “public forum”
When a government agency creates a forum for public conversation — for example, a town hall-style hearing — the First Amendment doesn’t allow it to restrict the speakers based on their point of view. If the government solicits public comments on a proposed regulation, for example, opponents of the regulation must be allowed to speak alongside supporters.
Katie Fallow, one of the three lawyers behind the Trump letter, says that the same principle applies online. “The courts have held that where a government official opens up comments on a Facebook page, they can't say that certain speakers are banned from that forum,” Fallow says.
She points to a March ruling in which a federal court ruled that the First Amendment applied after the Loudon County, Virginia, attorney’s office created a Facebook page for discussing legal issues. Once Loudon County officials opened the page up for public discussion, the court said, it couldn’t arbitrarily exclude some citizens from participating in the conversation.
Fallow argues that the same logic applies to Twitter. By running a Twitter feed, Trump is inviting the public to comment on his policies. Once he’s done that, they say, Trump has an obligation to keep that forum open to anyone who wants to participate. He can’t allow some to speak and blackball others.
An obvious objection here is that Donald Trump’s Twitter page only shows Trump’s own tweets. It doesn’t display comments by members of the public. That doesn’t really look like a public forum.
Fallow, one of the lawyers who wrote the letter to Trump, points to two ways that Trump blocking people violates their First Amendment rights. First, she said, preventing a user from reading Trump’s tweets interferes with her ability to fully participate in the online discussion.
Second, while users can’t comment on the main Trump Twitter page, they can leave comments that appear below individual tweets:
In other words, you can think of each tweet as creating a public forum. When Trump blocks a user, Fallow contends, he makes it difficult for people to participate in these discussions.
Why Twitter may not count as a public forum
White doesn’t find these arguments very persuasive.
“There's no diminution in the ability to speak,” he says. “There’s only a de minimus diminution in the ability to read what the president has chosen to vent on this particular site.”
He notes that there are easy ways for a blocked user to read a tweet, including logging in with a different account or using another browser that’s not logged into Twitter.
Blocking doesn’t prevent anyone from commenting on Trump’s tweets — it just makes it harder for people to have their tweets appear underneath a Trump tweet.
Also, it’s not obvious that a Trump tweet constitutes a public forum in the first place. The fact that Twitter chooses to display reply tweets underneath a presidential tweet doesn’t necessarily mean the president was sponsoring that discussion as a forum for public discussion.
Another question raised by First Amendment scholar and Washington Post blogger Eugene Volokh is whether the @RealDonaldTrump account should be considered an official government account.
Politicians have greater leeway when acting in their personal capacity — or when campaigning for public office — than when they’re speaking on behalf of the government. In White’s view, the fact that Trump appears to manage the account himself — complete with typos — and that he had been doing so for years prior to his election weakens the case for treating the account as an official government-operated forum.
White raises one final concern: “It's effectively an argument that would drive a lot of government officials of social media,” he says. Every online forum has to worry about online discussions being derailed by trolls, which is why social media platforms like Twitter and Facebook offer the ability to ban users in the first place.
“I think it's interesting and good to have public figures on social media,” White says. “But if you have to do some kind of due process before you can block trolls, it becomes unusable.”