Twitter

Telling Trump to Stop Blocking Critics on Twitter Doesn't Affect the Platform's Rules

The First Amendment constrains speech regulation by the government, not by private parties.

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Twitter

Harvard law professor Noah Feldman worries that the recent First Amendment ruling against Donald Trump's blocking of critics on Twitter could ultimately result in legal restrictions on the ability of social media companies to exclude users or regulate their speech. "This is the first time, to my knowledge, that the First Amendment has ever been applied to a private platform," Feldman writes in a New York Times op-ed piece. He warns that "applying the First Amendment to social media will make it harder or even impossible for the platforms to limit fake news, online harassment and hate speech—precisely the serious social ills that the world is calling on them to address."

Feldman argues that "social media should not become a pure free-speech zone," that "the speech-based online abuses of our age need to be addressed not by the government but by the platforms on which they occur," that "the platforms' free-speech rights impose moral obligations on them," and that "the free market will ensure that the platforms do their best to comply." I agree with pretty much all of that, but I don't agree that the Twitter decision, properly understood, poses a threat to those principles.

U.S. District Judge Naomi Reice Buchwald's May 23 ruling against Trump was not, in fact, the first time a public official has been rebuked for violating the First Amendment by excluding people from a social media account because of the opinions they expressed. Last July, for instance, a federal judge in Virginia, James Cacheris, concluded that Phyllis Randall, chair of the Loudon County Board of Supervisors, had violated a local gadfly's First Amendment rights by banning him from her Facebook page after he posted a comment suggesting that members of the county school board had taken official actions that benefited their relatives. After that ruling, Maryland Gov. Larry Hogan decided to settle a lawsuit by visitors to his Facebook page who complained that his office had deleted their comments and blocked them from posting because they had brought up a touchy subject by urging Hogan to criticize Trump's ban on travelers from seven Muslim-majority countries.

In all three cases, elected officials used their social media accounts to conduct government business and presented them as conduits for communicating with their constituents while inviting responses from the general public. By doing so, the plaintiffs argued, the officials had created designated public forums, which cannot constitutionally discriminate against people based on their views. The lawsuits accused government officials, not Twitter or Facebook, of violating the First Amendment, which does not constrain private parties and in fact gives them a right to decide which speech will be allowed on their platforms. A similar analysis would apply to a town meeting in a rented hall or a government website on servers owned by a private company.

Feldman nevertheless sees a threat of judicial control over speech regulation by social media companies. "It's not only people specifically blocked by President Trump's account who can't reply to him on Twitter," he notes. "It's also anyone excluded from Twitter by the platform itself, including those barred from Twitter for engaging in harassment or hate speech. Such parties may now sue Twitter, demanding access to the platform so they can post comments on Mr. Trump's account."

Anyone can sue anyone over anything, but that does not mean they can survive a motion to dismiss, let alone win. Buchwald's decision, like Cacheris's, focused on the actions of a government official; it said nothing about the supposed First Amendment obligations of a social media company. Loosely speaking, Buchwald affirmed a First Amendment right to follow the president on Twitter. But it would be more precise to say she affirmed a First Amendment right not to be blocked from the president's Twitter account (specifically, the "interactive space" associated with his tweets) by the president (or his underlings) because something you said offended him. Trump is appealing the decision but in the meantime seems to be complying with it by unblocking the plaintiffs.

"If President Trump was able to create a public forum on Twitter without Twitter's agreement to such a legal state of affairs," Feldman says, "then it becomes more plausible to think that Twitter itself is a public space, regardless of whether it intends to be one." Only if you ignore the crucial distinction between government action and private action when applying a constitutional provision that is explicitly aimed at the former. So far there is no evidence that the federal courts are inclined to do that.

NEXT: Recalling Aaron Persky, the Judge Who Showed Brock Turner Leniency, Is a Mistake That Will Haunt Progressives

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  1. This is an exceptionally bizarre line that is being drawn here. “Public officials can’t block you on social media, but social media can decide not to allow you on the platform”. That literally makes no sense.

    1. The judiciary is not immune to TDS.

      1. Did you read Buchwald’s opinion?

        I could find no evidence of TDS in her ruling.

        1. See, that’s because you were looking for TDS in the ruling. It’s not in the ruling, it is the ruling.

          Pure, unadulterated TDS. Used to have a pretty good street value, uncut like it is, but that shit’s everywhere today. Nope, today the real money’s in RDS.

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        2. Azathoth is right. The ruling is the TDS. Pure unadulterated TDS.

          The nerve that a private company’s social media outlet would be used to violate an American politican’s 1st Amendment right to free speech.

          1. Not thinking Trump is a good president is equivalent to TDS to you people isn’t it?

            1. I’m having trouble thinking of any good President since maybe Calvin. There certainly hasn’t been one in my lifetime, although Ronnie talked a pretty good game even while doing a pretty good amount of stupid shit.

            2. You don’t have to think Trump is a good president.

              You have TDS because no matter what good things Trump does you hate the action and you hate Trump.

              Trump is clearly a better president than Obama, Boosh, Clinton, HW Bush, Carter, Ford, Nixon, LBJ, JFK, Truman, and FDR.

      2. That judge should be impeached.

        1. Says the proud fascist. They rightly hanged mfers like you 72 years ago.

          1. Translated from progressive to English, it reads
            Z565: “I’m a shameful totalitarian socialist. I loathe myself and won’t admit it, thus I should be hanged like my ideological/emotional predecessors were 72 years ago.”
            I agree, Z565

          2. Z565, do you understand the irony of your statement? Impeachment is the prescribed remedy for a bad federal judge. You call me a “fascist” for saying that. Them proceed to say I should be hanged. Which is so,etching a fascist would say.

            Fascists are also a kind of socialist, and an offshoot of Marxism. Which is what you are. Stupid faggot.

    2. Thought the same thing. Trump cannot block you, but Twitter can? My First Amendment “rights” are categorical based on who is performing the identical action?

      Loosely speaking, Buchwald affirmed a First Amendment right to follow the president on Twitter. But it would be more precise to say she affirmed a First Amendment right not to be blocked from the president’s Twitter account (specifically, the “interactive space” associated with his tweets) by the president (or his underlings) because something you said offended him.

      So, the President has FEWER rights than regular citizens now?

      Intriguing.

      Trump didn’t block a soul from the POTUS Twitter. You know, the official one.

      1. So, the President has FEWER rights than regular citizens now?

        A government agent may do only what is permitted, a private citizen may do whatever is not forbidden. Such is the bare minimum standard for a nation to claim to be even semi-free.

        1. +1,000,000

    3. I cannot help but wonder what the article would say if Twitter was run by Trump cronies willing to do the dirty work for him.

      Would their actions still be ok?

      1. Twitter is run by very Orwellian leftists. If Hillary was President and had a clue what she was doing, they’d be banning on her behalf all of the time.

        So, if Twitter blocks somebody from Trump’s Twitter feed and he wasn’t involved…is it STILL his responsibility?

  2. Problems like this should be viewed as the top of a greased up slide. For every person saying “It’s not going to…” there is another person saying “Soon it will…”.

    1. I am an advocate for strong 2nd amendment protections, who thinks we’re no longer anywhere NEAR the TOP of that particular greased up slide. (I’d put the top somewhere around when the NFA was passed.)

      The top of this particular greased up slide happened while most, if not all, of our founding fathers were still kicking around. The Vice President had to publish his own criticisms of the then law, as written, secretly, because he was breaking it by criticizing it.
      Granted, when he got in office, he then repealed it, but we’ve been somewhere in the middle of that greased slide now since the 18th century.

      1. My error. That law was allowed to expire under the presidential term of the then vice-president.
        Sorta, but not quite, like how the “Assault Weapons Ban” was allowed to expire after Clinton left office.

  3. There is nothing in the FA which gives any state actor the power to refuse to hear petitions.

    The text just does not lend itself to the proposition that although one has the right to petition the government the latter can block the petition from being heard. If anything, the beauty of the text is that it forces public sector persons, i.e., both natural and institutional, to listen.

    1. There is nothing in the FA which gives any state actor the power to refuse to hear petitions.

      But Trump isn’t refusing to hear petitions. Plenty of ways to submit them.

      The FA doesn’t say the petitions will be in the manner you find most convenient. If he allows you to mail them, constitutionally, he has lived up to that obligation.

      1. Your bending over backwards to defend the state and its swamp creatures.

        Nobody put a gun to Trump’s head and forced him to make his Twitter account a public forum.

        1. I’m “bending over backwards” to stop giving trolls all they want. And to slap the courts down some as they seem to feel that they are worthy replacements for God on all topics.

          There are plenty of ways to petition the government. Trump’s Twitter feed need not be one of them.

          His Twitter feed seems to be stream of consciousness rants and declarations. I’m not seeing “government business” being done on it. If he hires/fires somebody, an announcement on Twitter is not actually doing the business.

        2. Both points of view are pretty compelling to me, but the real question is why is it ok for a 3rd party platform to restrict your access to public government information outlets. Seems like a really fundamental issue with this decision.

          1. Fully agree with BYODB.
            Both LM and damikesc make compelling points, but above them all I focus on the nature of Twitter. It has been deemed a public forum, thus Trump is prohibited from blocking people. As such, how can this public forum (Twitter) deny people access? It seems a definite double standard from a judicial perspective.

            1. Simply put, Twitter was just backdoor nationalized and no one gave a shit.

              1. Well, Twitter is a dumpster fire. I’d rather the Feds run it than their Orwellian banning council. That company is amazingly inept.

            2. If your local congresscritter decided to have a local “Town Square Meeting” in the middle area of your nearest megamall, would the owners and operators of that megamall be required to admit all comers, including the ones who had previously been given lifetime bans for shoplifting or horseplay?
              What about if he didn’t seek special permission from the mall? No banners, no stage, no PA system, just your local congresscritter stumping beside the food court?

  4. Red herring. The judge’s ruling did not tell Twitter to do anything. It only addressed how the President uses it.

    1. Blue herring. The judge’s ruling tries to force a private company’s product is now subject to the 1st Amendment limitations on government blocking speech.

      1. That second sentence isn’t even English.

  5. When you have US Senators saying that private businesses cannot violate the 14th amendment, is it really so bizarre to think that government officials will conclude that social media businesses are restricted by the 1st Amendment?

  6. “In all three cases, elected officials used their social media accounts to conduct government business and presented them as conduits for communicating with their constituents ”

    I still argue this is an ethics issue not a legal one. People who point out that trump uses Twitter to conduct official business and communicate official business is an impeachable offence in my opinion, not a first amendment issue.

    1. Trumps contact is an impeachable offence, the way I drove there. Kind of red as though people complaining about it with the impeachable offence.

      1. Wrote there. Jesus voice recognition goes to shit in a foreign country. I give up.

  7. “The First Amendment constrains speech regulation by the government, not by private parties.”

    So the Left is cool with the NFL forcing players to stand during the Anthem, right?

    Now, where’s my Nazi cake?! I’m told that the Left are now big fans of forced equal treatment by businesses. Here’s my chance!

    1. Actually the players have every right in the world to not stand for the Anthem but like the rest of us they may be in trouble at work for chasing away customers by their actions. Everybody has free speech here in the US, but that does not mean you are free to do anything you want at any time without repercussions. It is like a guy going to work and preaching the bible all the time driving people crazy, he has freedom of speech but if he constantly disrupts the job, drives people crazy and loses money for the company he will be fired for harassing other employees with his free speech.

  8. How can Twitter ban a user when that user might one day go to Trump’s twitter feed, though? Is Twitter allowed to infringe on your free speech rights when interacting with politicians on Twitter? Why?

  9. Seems to me we’re all hung up on the “public square” analogy. OK, imagine Twitter is a public square. If a government official posts an official document in the square, as long as I’m not denied access to read it and have some way to respond if I have a grievance, what’s the problem?

    Besides, I’m not interested in following President “a-ME-rica First” anyway. Most of what he tweets is just childish bitching, and most of the rest isn’t “official” until it gets codified in policy, which I can find out about through other means.

  10. I hope the author is correct, but I fear it may not turn out that way. Remember, there was a time before privately owned so-called “public accomodations” were allowed to exclude anyone they wanted.

  11. I cannot agree with this analysis.

    Twitter currently is blocking me for asserting my right to use deadly force to defend my home against a gun-grabbing, would-be burglar while it freely allows its platform to be used by juvenile squirrels like David Hogg to promote gun-grabbing and the necessarily associated burglary. Since the right to use deadly force to defend a dwelling is at the heart of the “fundamental” rights declared in the Heller opinion, Twitter’s actions actually would rise to at least a misdemeanor were they taken by a government employee.

    And, they could be a felony. Compare 18 U.S.C. secs. 241, 242.

    This only serves to show that Twitter is not a completely “private” enterprise — no more so than is the electric company or a cable-service provider. Every libertarian would bristle if communists took over the local electric company, then used the threat of disconnection from service to coerce citizens into giving up essential civil liberties.

    Indeed, most libertarians probably would start looking for grounds to prosecute the company officials.

    Twitter is no different. To suggest otherwise is shallow. And, in the end, as Oliver Wendell Holmes once observed, “Law is experience.” When someone comes up with an inventive way to use freedom to promote slavery, we should not feel obliged to join them in taking that Orwellian plunge.

  12. It’s a private platform, but the governments most important property in a proper democracy is being transparent and available to the masses. If he uses a private platform instead of a government website, that doesn’t make it one bit less important. He has his right to speak publically and express his opinion, he doesn’t have the right to limit the access to that. He’s the on that chose to use twitter instead of official channels.

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