Since taking office, Donald Trump has used his Twitter account to talk politics, intimidate his political critics, and even to reveal sensitive government information that shouldn’t be so readily shared in the public domain. The current president has seemingly had little to no restraint held over him on his social media platform- until now. A federal judge yesterday ruled that President Donald Trump’s practice of blocking his critics on Twitter violates the U.S. Constitution’s First Amendment. This decision is a pivotal one when it comes to free speech, the role of social media in politics, and the rights of the people to hold government officials accountable in all aspects of reality, even in the virtual realm.
U.S. District Court Judge for the Southern District of New York Naomi Reice Buchwald wrote in a 75 page decision that Trump, and other public officials, cannot block people from their Twitter accounts because of “the political views that person has expressed.” The decision comes after seven individuals, (Rebecca Buckwalter, Philip Cohen, Holly Figueroa, Eugene Gu, Brandon Neely, Joseph Papp, and Nicholas Pappas), working with the Knight First Amendment Institute at Columbia University, filed a suit against Trump after being blocked by him on Twitter after criticizing him politically.
In a public statement published last June, when the suit initially was filed, the Institute stated that the president’s Twitter account, @realDonaldTrump, “is a ‘designated public forum’ subject to the First Amendment,” and that “the First Amendment bars the government from excluding individuals from a designated public forum because of their views.” The Knight Institute’s Executive Director Jameel Jaffer stated at the time of the public statement that, “this is a context in which the Constitution precludes the President from making up his own rules,” and that, “the President can’t exclude people from it [his twitter account] merely because he dislikes what they’re saying.”
Public forums are considered places that have, by tradition or practice, “been held out for general use by the public for speech-related purposes.” These public forums come in three categories. One category is the “open public forum,” such as the street corner. A second category is defined as a “limited public forum,” such as a meeting hall. The third type is the “closed public forum,” which is not open to the public, such as a jail.
Before the age of the Internet, these public forums were seen as physical places such as parks, street corners, town halls, etc. Yet, with the emergence of online public domains such as Facebook and Twitter which are open to everyone and used by millions of people daily, the question has emerged if these digital platforms count as public forums under the First Amendment. If so, what are the rules the government and its officials must abide by when using them?
Judge Buchwald’s decision gives legal standing to the view that the “public forum” under the First Amendment no longer refers to the physical realm alone, but that digital platforms such as Twitter, or at least accounts on these platforms owned and operated by the government, do indeed constitute public forums.
As a consequence of Judge Buchwald’s decision, in using his Twitter account, the President of the United States, cannot bar Twitter users from speaking to him directly, seeing his timeline, and the like, simply because those users disagree with him politically. At times access to Trump’s account is given to other White House administration officials, such as White House Director of Social Media Daniel Scavino-. Scavino was also named in the suit. This decision not only applies to the president, but to all government officials when using social media accounts that are owned and operated by the government.
Katie Fallow, senior attorney at the Knight Institute, commented on the situation in June 2017: “This is the bedrock principle. If there’s any kind of forum the government is operating for expression, it may not discriminate on the basis of viewpoint,” and, “other people on Twitter may do that [block people] regularly, but when you’re a government official, different rules apply.”
Judge Buchwald rejected all of the arguments of the Trump legal team, including their claim that because the government does not own Twitter it is not a public forum under the First Amendment, and that @realDonaldTrump was created in 2009, before Trump was president, and is therefore his individual account to say what he wants.
The judge stated, “The President presents the @realDonaldTrump account as being a presidential account as opposed to a personal account and, more importantly, uses the account to take actions that can be taken only by the President as President.” Judge Buchwald explained further that although the government does not own Twitter as a whole, “the President and Scavino nonetheless exercise control over various aspects of the @realDonaldTrump account: they control the content of the tweets that are sent from the account and they hold the ability to prevent, through blocking, other Twitter users, including the individual plaintiffs here, from accessing the @realDonaldTrump timeline…,” and that, “Accordingly, we conclude that the control that the President and Scavino exercise over the account and certain of its features is governmental in nature.” The conclusion here is that Trump’s account is the public forum itself.
Trump’s lawyers also tried to claim that blocking users wasn’t in violation of the First Amendment because it is “a functionality made available to every Twitter user.” Judge Buchwald explained that since @realDonaldTrump is a government-owned and operated entity, the blocking of citizens from the account is a state action and therefore “subject to First Amendment limitations.” A.k.a, the President can’t do whatever he wants to other citizens.
The Knight Institute’s suit challenging Trump is not the first of its kind; other cases have been brought dealing with the rights of the public online in their interaction with government officials. These cases have been decided with mixed results. For example, in the case of Davison v. Loudoun County, Brian Davison argued that the board of supervisors of Loudoun County, Virginia violated his First Amendment rights when they deleted a comment he left on the Facebook page of the chair of the board. Loudoun County argued that the Facebook page was the chair’s personal account, not an official government account. The court didn’t agree with that argument, and denied the county’s move to dismiss the case. Yet, in Morgan v. Bevina in March of this year, a U.S. District court judge ruled Kentucky Gov. Matt Bevin was within his rights to block constituents from his Twitter account. Judge Gregory F. Van Tatenhove wrote that public officials “can choose whom to listen to on those platforms without offending the First Amendment.”
Judge Buchwald’s decision is specific in that it doesn’t claim that all social media is a public forum. Rather it holds that when government officials are on official accounts they can’t pick and choose who gets to speak to them, or who gets to have access to view those accounts. This decision allows the public to continue to challenge and hold accountable their government representatives in the political domain.
As more social movements use social media as a tool in organizing, the court decision such as that in the Knight Institute First Amendment case gives weight to the power of the digital realm in the political sphere. The president is well aware of the weight of social media in controlling the public narrative. The court decision may not put an end to Donald Trump’s digital intimidation tactics, or Twitter cries of “fake news,” but it does make plain that as the president of the United States Donald Trump is not above the law, even in virtual reality.
CONTRIBUTOR
Comments