On Wednesday, a federal court for the Southern District of New York held that President Trump violated the First Amendment when he and his Social Media Director Daniel Scavino blocked users on Twitter because they were critical of the President and/or his policies via the @RealDonaldTrump account. The story caught my attention—not only as a citizen who wants a president to both respect the Constitution and have the backbone to endure a little criticism—but also because I wondered if the court’s opinion might state or imply that the Twitter platform as a whole is a public forum vis-a-vis the First Amendment. The short answer is No.
Readers may remember when “digital rights” groups swooned over the opinion in Packingham v. North Carolina, finding the State had overreached in barring internet access to registered sex-offenders, and in which Justice Kennedy described the internet as one of the “most important places for the exchange of views.” The digerati even speculated that the opinion in Packingham might imply that Section 512(i) of the DMCA, requiring account termination for repeat copyright infringement, could be held unconstitutional.
The major internet platforms have long overstated their obligation to the First Amendment on behalf of users—usually citing our free speech as the reason to keep their digits off all user-uploaded content, even if the content is illegal or otherwise harmful. This posture is based on the “neutral platform” principle, which has less to to with free speech and more to do with avoiding corporate liability for actionable uses of their platforms.
For several years, the public generally bought into the “neutral platform” concept until the Russian meddling story broke, and then everyone remembered that, in fact, social media platforms are private companies free to exercise editorial control over content without implicating the First Amendment. And in a recent twist, The Guardian reports that Facebook is seeking to have a lawsuit dismissed on the grounds that, get this, it’s a publisher with the right to edit content. Stay tuned on that one.
Still, the question remains, from our perspective as users, as to exactly when a social media platform constitutes a public forum in a constitutional sense and when it doesn’t; and this recent decision involving the @RealDonaldTrump Twitter account is among the first opinions to provide some answers.
Judge Naomi Reice Buchwald awarded the plaintiffs declaratory relief stating that President Trump’s blocking them from following his Twitter account was an abridgment of their First Amendment rights—but only under a very narrow analysis in which the @RealDonaldTrump account constitutes a public forum. In this case, the forum arises from a combination of two sets of facts: first, that the once-personal account of Donald Trump is now used to make official statements by the President of the United States; and second, that only a follower of a Twitter account can interact directly with the account-holder’s tweets by composing tweets that are then visible to all other users in that specific context. As stated in the opinion …
“The audience for a reply extends more broadly than the sender of the tweet being replied to, and blocking restricts the ability of a blocked user to speak to that audience.”
As I said, it’s a very narrow standard defining this particular account as a public forum, and the opinion even calls the injury done by blocking di minimis but also states that di minimis abridgment of speech is still unconstitutional. The defense’s arguments that a blocked user can still read the Twitter feed of @RealDonaldTrump and remains free to criticize the president in any other manner were not persuasive that a First Amendment violation did not exist.
Judge Buchwald also noted in her opinion that a public official who uses social media for purely personal communications would be free to block users without implicating the First Amendment. Public officials are still entitled to private lives, including the right to ignore or avoid critics or haters—even on a publicly-visible, but privately-used, social media feed.
The defense also sought to argue a separation challenge—that the court does not have jurisdiction in this case over the Executive, but countering this, Judge Buchwald states that an order to unblock these users does not, “direct the President to execute the laws in a certain way, nor would it mandate that he pursue any substantive policy ends.” Instead, the court affirms that the President must comply with the Constitution he took an oath to protect and defend.
That said, in order to steer a wide path away from any separation conflicts, Judge Buchwald stopped short of issuing an injunction (an order) to unblock the users and instead issued a declaratory judgment (more like a recommendation) that the President has violated the First Amendment. According to Newsweek yesterday, Trump has so far defied the court, and users remain blocked.
Assuming the Republic survives this mess and social media remains something we all use in the foreseeable future, this case may prove instructive as a first step in defining when use of these platforms legitimately implicate the First Amendment. I suspect the answers will continue to be narrow—that it will not suffice return to the over-broad assumption that platforms are merely neutral hosts of protected speech because it seems clear that such absolutes do not apply.
This has implications for cyber policy going forward. As many colleagues have repeated—and are only now being heard—the pecuniary interests of web platforms trained society to obliterate boundaries like consent and decency—to say nothing of truth. And there is an extent to which the current President’s apparently cult-like use of Twitter to speak only to admirers is a byproduct of that same folly. Yes, in this instance, I believe the President should unblock those users in deference to the court’s opinion; but in general we should also should take note that the internet industry’s chronic appeals to our free speech as their liability defense is as legally untenable as it is morally objectionable.