A single tweet from President Trump is often fodder for an entire news cycle. It can completely change the national conversation and take over the public discourse.
But what if the Tweeter-in-Chief blocks you from his conversations because you disagree with his ideas?
When President Trump started to block the accounts of his critics, it sparked a controversy – and multiple lawsuits. Many of those blocked users felt their First Amendment rights were being violated.
The Trump administration disagreed, arguing that @realDonaldTrump is a private Twitter account. As such, he has the right to decide who he spends time with on social media.
But some of those dissenting Twitter users blocked by the President begged to differ. Since he is an elected official, they view his account as official communication. Thus, it should be considered a public forum, and they should have the freedom to express their thoughts and opinions there even if, and especially if, they disagree.
And a federal judge recently ruled that they are correct.
Knight First Amendment Institute vs. Trump
In July 2017, The Knight First Amendment Institute at Columbia University in New York, along with seven individual Twitter users, sued the President.
At first, Judge Naomi Reice Buchwald encouraged the parties to find an out-of-court resolution. She suggested that President Trump could mute instead of block critics.
But some plaintiffs weren’t satisfied with that idea. They felt that it did not address the underlying issue of suppressing their speech simply because they disagreed with the President.
So, in May 2018, Judge Buchwald issued a scholarly 75-page ruling.
“We hold that portions of the @realDonaldTrump account — the ‘interactive space’ where Twitter users may directly engage with the content of the President’s tweets – are properly analyzed under the ‘public forum’ doctrines set forth by the Supreme Court, that such space is a designated public forum, and that the blocking of the plaintiffs based on their political speech constitutes viewpoint discrimination that violates the First Amendment.”
Judge Buchwald’s analysis dragged centuries-old “public forum” law into the modern age of the internet. If a physical space, such as a town square, sidewalk, or park, has been a place that people have traditionally held rallies, speeches, or protests, then the law protects that space as a free speech zone. This means the government cannot permit one speaker while denying another speaker based on contents of their speech.
So, just like the town square, the courthouse lawn, the sidewalk, and other public forums, the cyberspace we call Twitter also can be a traditional public forum where the First Amendment prevails, according to Judge Buchwald.
“The viewpoint-based exclusion of the individual plaintiffs from that designated public forum is proscribed [prohibited] by the First Amendment and cannot be justified by the President’s personal First Amendment interests.”
Judge Buchwald also stated that, “no government official – including the President – is above the law, and all government officials are presumed to follow the law as has been declared.”
In spite of that subtle hint, as far as we know, President Trump has yet to unblock those accounts or show any signs of changing his Twitter feed.
What Happens Now?
This is unlikely to be the final chapter of this saga. Many believe the President will challenge the ruling, and the plaintiffs say they will escalate the case to the Supreme Court if necessary to get him to comply with the ruling. Easier said than done.
This case is significant beyond the President, because while a trial court opinion is not binding precedent on any other court, other courts may find this court’s ruling provides persuasive reasoning to determine what rules other government officials will be expected to follow on Twitter and other social networks. If so, we trust this will result in a more open government with greater freedom of speech for all citizens, without squelching dissent that is and has been a hallmark of our democracy since its inception.
Marks Gray and I frequently represent and counsel clients—individuals and employers—in First Amendment and free-speech matters and would be honored to help if you have the need for these services. Please take a look at my Florida Media and Advertising Law Blog. Email or call with any questions.