By: Mitch Torrence,

Writing in Packingham v. North Carolina, Justice Kennedy stated, “While in the past there may have been difficulty in identifying important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace-the ‘vast democratic forums of the Internet’ in general and social media in particular”. [1] Granted, these words were uttered in dicta but they speak to the important principle, today the most important place wherein ideas are exchanged is the internet. That in mind there comes a fun question: Can the President block people from his viewing his Twitter account? Knight First Amendment Institute, et al v. Donald J. Trump, President of The United States, et al. may provide an answer to that very question. [2]

The Plaintiffs in Knight Institute are individuals, all of whom have been blocked from viewing President Trump’s Twitter account.[3] It is their position that this is a violation of their First Amendment rights and that they have a right to view Mr. Trump’s twitter account and he should be compelled to unblock them.[4] They couch this argument in the proposal that Mr. Trump’s Twitter account constitutes a public forum and that Mr. Trump’s blocking of them of them is impermissible viewpoint discrimination.[5] The Government, of course, disagrees.

The Government concedes that Mr. Trump’s Twitter posts constitute official statements from the Office of the President.[6] However, they disagree with the characterization of Twitter as a public forum and contend that forum analysis is not even appropriate in this context.[7] On the latter point the Government that argues that the public forum doctrine ought not be applied mechanically to contexts that are different from streets or parks.[8] Additionally, they make the argument that the Court must analyze what it is the citizen is seeking access to, in this case Mr. Trump’s Twitter account.[9] At this point it is their contention that because no one else can speak on Mr. Trump’s timeline his account cannot be considered to be a public forum. [10]

The case will likely ultimately come down to the above question: what kind of forum is Mr. Trump’s Twitter account? As Eugene Volokh points out there is a dearth of case law on this particular kind of issue.[11] Again as Volokh points out, it seems the most analogous cases come out of the Eastern District of Virginia in Davison v. Plowman and Davison v. Loudon County Board of Supervisors.[12] In those cases the following split manifested: a government agency Facebook page ought to be viewed as a limited-public forum and an individual politician’s page may not have the same constraints put on it.[13]  If the same logic were to be extended to Mr. Trump’s account the Plaintiff’s in Knight Institute may be in for a rude awakening.  However, viewing Mr. Trump’s account as purely personal is problematic.

As the Plaintiff’s point out in Knight Institute, Mr. Trump’s account is not utilized a personal account. The practice of the account is to have it function as a vehicle to put out official statements and various members of his staff have access to the account.[14]  To that end, Mr. Trump announced the transition from H.R. McMaster as National Security Advisor to John Bolton via his Twitter. Mr. Trump uses his account in an official capacity and ought not to be able to exclude people from the discourse because he doesn’t like their jokes.

Justice Kennedy correctly identified the notion that today the most important forum for our discourse is cyberspace. It is not a hot take to suggest that Twitter, Facebook, etc.  have taken the mantle of the public square. Mr. Trump’s page ought to correctly be viewed as being a limited public forum and ought not be able to block Twitter users willy-nilly. This may all turn out to be a moot point as the Judge in the case suggested Mr. Trump simply mute users as opposed to blocking them. [15]Perhaps that will end the issue, but if we should hope for a more concrete solution that answers the important question here.

 

[1] See Packingham v. North Carolina, 137 S.Ct. 1730, 1735 (2017).

[2] See Compl. For Declaratory and Injunctive Relief Knight First Amendment Institute, et al v. Donald J. Trump, President of The United States, et al., 1:17-cv-05205 (S.D.N.Y.).

[3] Id.

[4] Id.

[5] Id.

[6]   See Government’s Response to Letter Re: Government’s Concession, Knight First Amendment Institute, et al v. Donald J. Trump, President of The United States, et al., 1:17-cv-05205 (S.D.N.Y.).

[7] See Mem. Of Law In Support of Mot. For Summ. J., Knight First Amendment Institute, et al v. Donald J. Trump, President of The United States, et al., 1:17-cv-05205 (S.D.N.Y.).

[8] Id.

[9] Id.

[10] Id.

[11] See Euguene Volokh, Is @RealDonaldTrump Violating the First Amendment by Blocking Some Twitter Users?, The Volokh Conspiracy, The Washington Post, Jun. 6, 2017, https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/06/06/is-realdonaldtrump-violating-the-first-amendment-by-blocking-some-twitter-users/?utm_term=.4d98f9871585.

[12] Id.

[13] Compare Davison v. Plowman, 191 F. Supp. 3d 553 (E.D.V.A. 2016); with Davison v. Loudoun Cnty. Bd. of Supervisors, 227 F. Supp. 3d 605 (E.D.V.A. 2017).

[14] See Donald Trump (@realDonaldTrump), Twitter (Mar. 22, 2017, 5:26 pm)  https://twitter.com/realDonaldTrump/status/976948306927607810.

[15] See John Herrman, Judge Floats Idea to Settle @realDonaldTrump Twitter Blocking Case, N. Y. Times, Mar. 8, 2018, https://www.nytimes.com/2018/03/08/business/trump-twitter-block.html.

Image Source: http://www.slate.com/articles/technology/technology/2018/01/banning_trump_from_twitter_would_be_counterproductive.html.

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