Government-Run Fora on Private Platforms, in the @RealDonaldTrump User Blocking Controversy

Whether the First Amendment applies generally turns on who is imposing a restriction (the government vs. a private party), not on whether the speech is on public or private property.

|The Volokh Conspiracy |

Some readers have asked how it can be that Twitter can restrict tweets, and ban users for tweets it sufficiently dislikes, but @RealDonaldTrump can't.

That's because Twitter is a private entity, which isn't bound by the First Amendment. (Whether Congress could constitutionally impose some sort of constraints on Twitter's banning users is a separate matter; so far, Congress hasn't.) President Trump is a government official, and his actions are potentially constrained by the First Amendment.

One can argue that he's running the account in his individual capacity; but once the court concludes that he's acting as an official, and not just as a politician, the First Amendment does apply to him. And if the blocking were done on a government entity's account, such as an account run by a school board, a police department, or a city council, then the First Amendment would even more clearly apply.

Nor should it matter that President Trump is using private property for his speech. A city council, for instance, is barred by the First Amendment from kicking speakers out of an open comment period based on their viewpoints. (It has no constitutional obligation to set up such a period, but many city councils choose to.) And that remains so even if the city council decides to meet in a privately owned building that the owner has let it use for the occasion.

Likewise, a public university can't have a policy saying, "we'll issue all students university e-mail accounts, but we'll delete the account of any student who uses the account to say something offensive based on race, religion, sex, or sexual orientation." And that's true even if the university-issued e-mail accounts are hosted on Microsoft or Google computers.

Whether the First Amendment applies to a speech restriction generally depends on who is imposing the restriction. If the government is imposing the restriction, then the First Amendment does apply, whether or not the speech is on private property. Likewise, if a private entity is imposing the restriction, then the First Amendment doesn't apply, whether or not the speech is on government property. (If, for instance, I hit you because of an offensive message that you're wearing on a city sidewalk, I'm guilty of a crime and a tort, but not a First Amendment violation, unless I'm acting in my capacity as an agent for the government. If your private employer fires you because it learns of your having said something offensive on a city sidewalk, then in many states it wouldn't be guilty of anything, and in any event not of a First Amendment violation.)

So, again, one can argue that @RealDonaldTrump is run by President Trump in his personal capacity, not his official capacity; but once the court rejected that view, then it doesn't matter that @RealDonaldTrump is a forum set up on a private company's computers. Though Twitter, as a private actor, isn't bound by the First Amendment, a government official, acting in his official capacity, is bound by it.

NEXT: 2nd Circuit Agrees That Trump Cannot Constitutionally Block Critics on Twitter

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  1. I think you are off base in your analysis, Trump’s twitter feed is his speech, and you are compelling his speech by forcing him to provide a forum for others on his platform. I think the best analogy is Presidential press conferences, Trump can call on whomever he wants, or not call on someone for whatever reason he wants, and anyone he doesn’t let speak at his press conference is free to go on CNN or any other platform to make whatever point they want to.

    Neither Trump or the government is restricting the ability of anyone to say anything they want on Twitter, just on his Twitter thread.

    1. I think that’s the “government speech” argument, which I think the Second Circuit responded to soundly in what I label part C.3 of its opinion, quoted in the original post.

      1. The more I think about it the more offbase I think the Court is.

        First of all the court is treating it as a freedom of speech case, it’s not, it’s a freedom of the press case. Twitter is a platform for short form publishing and the question should be who is the publisher, and controls the content of the publication, not who is speaking.

        Twitter is the publisher and it’s undisputed as the publisher they have the right to edit the content. Twitter’s model delegates some, but not all of that publishing authority to the “owner” of that Twitter feed. So I think the government as publisher has the right to publish or decline to publish whatever views it wishes.

        1. “Twitter is the publisher…”

          Technically not true.

          “Twitter’s model delegates some, but not all of that publishing authority to the “owner” of that Twitter feed.”

          Also untrue.

          “So I think the government as publisher has the right to publish or decline to publish whatever views it wishes.”

          That’s not the issue. The government is not required to retweet all posts. The issue is whether it can block speakers it disagrees with on someone else’s platform, when the platform is being used as a public forum. The more I think about it, you don’t understand what this case is about at all.

    2. Can the President prohibit certain Americans, but not others, from hearing his answers at press conferences? Because that is what a Twitter block does.

      1. Not really. Anyone who wants to read Trump’s twitter feed is free to do so through the website, even if they don’t have a twitter account or have been blocked by Trump.

        1. So because there is a technical hack (which not every user may be privy to), that makes it constitutional?

          That makes zero sense. The President can’t make it more difficult for some Americans to access his public statements than others. A Twitter account used purely for private stuff such as tweets about his golf games or Ivanka’s clothing lines or how great his hotels are would be different. But anything that is essentially a public record cannot be selectively blocked, even if there is a hack that can be used.

          1. You made a terrible analogy and I pointed it out. I never said anything about whether it made it constitutional.

            “So because there is a technical hack”

            It’s not a technical hack. It’s the way twitter is designed.

            “The President can’t make it more difficult for some Americans to access his public statements than others.”

            It’s no more difficult for someone who Trump has blocked to access his public statements on twitter than it is for me, and it’s only marginally (very marginally at that) more difficult for us to access Trump’s twitter statements than someone who is following Trump’s feed. I have a hard time believing that government officials and entities can’t use twitter because I don’t have an account.

            1. It is a technical hack. The way Twitter is designed is to keep you logged in.

              And it doesn’t matter how difficult it is for you. How difficult is it for my 89 year old mother, who can barely work her computer? Or does she not get to read the President’s official public statements?

              1. It’s not a technical hack. I don’t have a twitter account. I frequently use various twitter websites to watch sports highlights. Twitter wants me to use their websites to watch sports highlights. Fox Sports wants me to use its twitter website to watch sports highlights. If I thought anything Donald Trump was tweeting was remotely as interesting as watching Rose Lavelle knife through the opposition I could visit his page just as easily.

                “And it doesn’t matter how difficult it is for you. How difficult is it for my 89 year old mother, who can barely work her computer? Or does she not get to read the President’s official public statements?”

                Yes, I really believe that your 89 year old mother can barely use a computer but is active on twitter. I really do. You’ve totally convinced me.

              2. And it doesn’t matter how difficult it is for you. How difficult is it for my 89 year old mother, who can barely work her computer? Or does she not get to read the President’s official public statements?

                I don’t know what an “official” public statement is as opposed to an unofficial one, but your argument is silly.

                If your 89-year old mother couldn’t work a computer as opposed to “barely” being able to work it, she wouldn’t be able to read the statements at all. Does that mean that Trump using Twitter is itself a constitutional violation?

          2. Calling it a ‘technical hack’ is like calling ‘opening a website’ a technical hack.

            These are not private messaging systems.

          3. Does that mean that the President can’t have official conversations with leaders of foreign nations that aren’t heard by the public at large? Of course not. There is no right to hear or be heard.

            1. Those are one on one conversations not publicly distributed. Tweets are for public consumption, and the President does not get to determine who reads his public statements.

          4. re: “The President can’t make it more difficult for some Americans to access his public statements than others.”

            Sure he can. For just one example, the President can decide who is invited into the press briefing room. Those in the room get direct, immediate and full access. The rest of us get only delayed, edited and indirect access.

            There are lots of good arguments in favor of the court’s decision. That wasn’t one of them.

            1. Terrible analogy. The statements made in his press room are then distributed to Americans through the press. Better analogy is whether he can require a newspaper to preclude certain Americans from accessing his statements made in the press room on their website.

              1. We all agree you made a terrible analogy. Kudos for finally admitting it.

                But your new analogy is even worse. Donald Trump’s twitter statements are also distributed through the press (David Post provides a convenient example on this very morning), and nothing Donald Trump has done has restricted anyone from reading those accounts. Nor has Donald Trump done anything that restricts people from reading his tweets first hand.

              2. re: “The statements made in his press room are then distributed to Americans through the press.”

                Not always, not immediately and not completely. The press mostly distribute an edited version to us. That means that by inviting A into the press room but not B, he has made it more difficult for B to access his public statements. Depending on A’s discretion and editorial choices, you could even argue that he has made it impossible for B to access his actual public statements. Yet the president’s discretion over who to invite into the press briefing room is undisputed.

      2. You aren’t really arguing that following Trump’s Twitter feed is any sort of advantage or benefit to anyone are you?

        1. Just that it is a public record.

      3. The first amendment doesn’t grant a right to be heard. Trump doesn’t have to listen to anyone he doesn’t want to listen to.

        1. If all blocking did was prevent Trump from seeing your tweets, it would be constitutional. But it also prevents you from seeing President Trump’s tweets. And that’s not.

  2. “And that remains so even if the city council decides to meet in a privately owned building that the owner has let it use for the occasion.”

    I don’t dispute this portion of the argument, but the converse seems more questionable. Can the building owner prevent people from attending the city council meeting based on their political views (I’m just asking about the city council meetings, not questioning the owner’s general ability to limit access based on political affiliation)? I could see an argument that the owner is a state actor despite being a private party because the owner is providing a service that is traditionally provided by the government on behalf of the government.

    If so, can the city council continue to meet in a location where it knows that some people are barred from attending based on their political views, or would that be a violation of the First Amendment even if the owner’s action isn’t because he’s a private party?

    When a private university hosts actual judicial proceedings, as I believe happens from time to time, is it allowed to restrict access to the proceedings based on its own criteria or does it have to agree to maintain the same standards of access that the government does? Even if the violation is by the government in agreeing to the venue, rather than by the private university itself, I have a hard time seeing that there wouldn’t be a constitutional violation in such circumstances.

    1. That was my thought; Once you declare Trump’s twitter feed a public forum, can any private entity act to prevent people from having access?

    2. This may be complicated somewhat by the fact that many states have open meetings laws.

      1. Open meeting laws are adopted by statute or local ordinance. While they are good, they are not constitutionally required.

    3. Exactly

      Twitter is free to kick Trump off of Twitter. But if they leave him on, then their property has become a public forum, and they can not ban any American from being able to visit that public forum and participate in it.

      1. Or they are free to ban anyone they want and governments and their agents are barred from using twitter for official business. Or they can use twitter, but must disable all comments. Or twitter simply doesn’t qualify as a state actor and can do what they want. Or any other number of things.

        1. It should be twitter can do what they want. If the government uses private forums as public forums, in a way that violates the 1A, you chase the government, not the private forum owner. That may have the practical effect of preventing the private forum owner from giving the space to the government.

    4. The First Amendment is about action, not outcomes.

      Congress shall make no law, after all.

      1. What a super insightful comment! I guess that means the court was wrong because, after all, Donald Trump isn’t Congress and his decision to block people isn’t a law so he clearly can’t violate the First Amendment. Thank you for your valuable contribution to this discussion.

        1. My point is that I don’t think your analysis regarding private action stands before how the First Amendment jurisprudence currently stands.

          The government can’t use a third party as an agent, but I don’t believe there’s any caselaw that a private third party acting on it’s own accord is constrained by the Constitution, even when the government is using it.

          1. What does whether private parties are constrained by the Constitution have to do with whether the government violates the First Amendment by holding meetings in locations where it knows that people are barred from attending based on their political sentiments? What does whether private parties are constrained by the Constitution have to do with whether the government violates the Constitution if it holds trials in private locations that aren’t open to the public? In short, not only was your original comment stupid, but your expanded version has little relation to the post you are allegedly responding to. In other words, typical worthless Sarcastr0 responses.

            And I’m eager to see your legal support establishing that a private party acting hosting an official city council meeting is not a state agent and is free to discriminate against attendees based on their political statements. Or sex, for that matter. According to the hypothetical, the owner isn’t charging the city council, and certainly the owner isn’t charging attendees. The owner could certainly exclude women from his HeMan Women Hater’s Club held the day before the city council meeting in that same room. Do you really think it’s obvious that the owner could exclude women from the city council meeting because he’s just a private party, and that the city council could continue meeting there knowing that the owner was excluding women, without there being an equal protection violation? I certainly don’t.

            1. So your current thesis is that Trump is barred from using Twitter at all?

              And I’m eager to see your legal support establishing that a private party acting hosting an official city council meeting is not a state agent and is free to discriminate against attendees based on their political statements
              You mean the State Action requirement?

              Do you really think it’s obvious that the owner could exclude women from the city council meeting because he’s just a private party
              I do. The Constitution doesn’t bind private citizens.

              1. “So your current thesis is that Trump is barred from using Twitter at all?”

                No, my current questions are pretty well laid out in my initial post. Just because you keep responding to some imaginary post and pretending that you are responding to me doesn’t actually make it so.

                “You mean the State Action requirement?”

                Wow. All this time commenting on legal blogs and you still don’t know that sometimes private parties can satisfy the state action requirement. You are not very bright, are you?

                And note that I specifically asked for something establishing that the owner “is not a state agent.” If the owner is, in fact, a state agent, how would the State Action requirement permit discrimination by a state agent?

                “I do. The Constitution doesn’t bind private citizens.”

                Except when it does. And I notice you completely left out the rest of sentence, the part about the city council still being able to hold meeting there, you dishonest hack.

                1. I went to law school, so maybe cut it with the tone.

                  The exceptions I’ve seen are for agents or constructive agents of the government, i.e. acting at the government’s behest. Unless you can find precedent on point, you are wrong.

                  1. “I went to law school,”

                    Weakest appeal to authority of all time. Sleeping at a Holiday Inn Express last night is more convincing.

                    Regardless, I’m sure whatever law school you went to is very grateful that you don’t further harm their reputation by publicly revealing which one.

                    “so maybe cut it with the tone.”

                    Stop posting stupid, irrelevant comments, and I’ll stop mocking you for posting stupid, irrelevant comments. That you went to law school makes your stupid, irrelevant comments more worthy of mocking, not less.

                    “The exceptions I’ve seen are for agents or constructive agents of the government, i.e. acting at the government’s behest.”

                    We’ve already established that you are a dishonest hack who doesn’t know much about the law, so I really don’t care about your interpretation of what you’ve seen. And since you admit you were wrong about the Constitution not binding private people, what makes you so certain that you are right about the owner not being an agent, or constructive agent, of the government. Other than your considerable ignorance, of course.

                    “Unless you can find precedent on point, you are wrong.”

                    No, you fucking moron, I’m not. First, I’ve asked questions, not asserted positions, so I can’t be wrong.

                    Second, the quality of your law school education is shining through. That’s not the way the law works. Nothing you’ve posted in your drivel has come remotely near to proving that the owner would not be a state agent, and I’ve never bothered to attempt to prove that the owner is because I don’t think it’s a simple question. But, even pretending that I was asserting that the owner was a state agent, that doesn’t make me wrong. That makes the issue unsettled.

                    Third, you dishonest hack, you keep trying to pretend that my only question is about whether the owner is a state actor even though it’s manifestly clear in my original post, and I’ve explicitly stated in my responses, that it isn’t. The only way I can be wrong (even if we assume I’m asserting a claim), is if there’s precedent saying that city councils (or other government entities) are permitted to hold public meetings in buildings where they know that people are not allowed to attend based on their political expressions, or race/sex, etc. Which is largely independent of whether the owner is a state actor and also subject to sanction.

  3. If the court had accepted the representation that it was a private court could this court have entered an injunction blocking whitehouse staff from working on it? If not this court would someone have standing to request such an injunction and immediately move for summary judgement on the ground that the government was now estopped from arguing it wasn’t a private account?

    I tend to think that’s the better outcome as it avoids any danger in the future of private presidential speech being deemed to actually be governmental (and besides it’s actually the more significant penalty) but if the law barring whitehouse staff from working on private political speech doesn’t allow such a remedy I guess this is the right outcome.

  4. Professor Volokh….Just how far does the line get drawn, after the POTUS? Is it any Federal official? Only elected officials? State and Municipal officials? Are they all in the same boat as the POTUS? I did not read anything in the excerpts that said it was the POTUS only who could not block users from his feed.

    This decision is going to create huge headaches for a lot of people, and an even bigger mess to clean up.

    1. It would seem the simple solution for any public official is to never get on Twitter.

      Although the question then would be what happens when someone sets up an account using a same name – e.g. HonorableBarringtonParker – how would the ‘real’ person be able to request deletion without first claiming an ownership interest in the identity?

    2. Any government official acting in their governmental capacity is bound by the First Amendment. The argument is that Trump engages in government functions on Twitter, and thus is liable to abide by the restrictions if he chooses to do so. If he only commented about sports, for example, that would be unaffected. The same principle applies to every other government employee in America.

      1. “If he only commented about sports, for example, that would be unaffected.”

        Says who? Was that part of the ruling? What ‘principle’ is it that claims to be the final arbiter of what is political and what is not political?

        1. There are some female soccer players that might tend to disagree with your position.

          1. Can they block people from their Twitter accounts, if they discuss soccer or politics? They are representing the US and arguably, through the US government….

            1. The USSF is a 501(c)(3) corporation, not part of the government. FIFA punishes excessive government involvement in the national soccer federations.

    3. It does appear, it’s anyone that can be interpreted to be using their Twitter account in a professional capacity for any type of government work and/or policy/election work.

      1. Armchair…Yep. What.A.Mess.To.Clean.Up

        “Hi Township Clerk, what time is the town council meeting tonight?” If that person answers, “7pm” then they are stuck. They acted in a professional capacity, just answering the question.

  5. Doesn’t this decision effectively prevent Twitter from banning ANYONE for any reason? Anyone banned from twitter is unable to interact with President Trump (through his official account or the personal one determined to be official by this decision). If the state is banned from bannings because this is a function of government, then other parties should be banned as well. The only recourse seems to be removal of all politician and government agency accounts so as not to have differential treatment for political views.

    1. If Donald Trump cannot limit what gets said to him on Twitter how can Twitter then claim any ability restrict what gets said to Donald Trump?

      So, it would seem the way to avoid any Twitter ban is to say whatever you have to say at Donald Trump in addition to whoever you want to address.

      1. Because Twitter is a private actor, and Trump is choosing to open himself up to their rules. If Twitter “censors” speech, there is no recourse because they have a right to do so; they are not a governmental actor. Trump, insofar as he is acting as a governmental actor, can’t censor speech. Now the decision about whether he actually is acting in an official capacity on Twitter may be wrong, but once that is accepted for the sake of argument, then all of the previous statements apply.

        1. Except he’s not censoring speech. He is not telling Twitter who can and cannot use Twitter, or what they can or cannot say on Twitter, all he’s doing is choosing who he ignores.

          Not allowing him to control his own Twitter feed is like telling him he has to read every email.

          1. This is just dead wrong. Trump can “mute” anyone he wants – using that function means he cannot see anything they say if he doesn’t want to. But “blocking” someone means they cannot see what Trump says and cannot respond to it or discuss it with others in the forum created by Trump’s statement (his tweet) under the statement.

            1. Not dead wrong, you have not refuted a single thing I actually said.

              Anyone can always see what Trump says. They just cannot do so from a blocked account. They can still see it if they are not signed in, or if they sign in under an unblocked account. Same goes for posting to his account.

              None of this is censorship. Unless your notion of censorship includes ‘not letting me make statements directly on your specific forum.’ In which case government large and small censors us all on a daily basis.

              1. Except the specific forum has been ruled to be a designated public forum. The government might be able to censor us from discussing a conversation elsewhere but not public forums. A city council can’t invite only comments from the public that they like and tell everyone else to go give their views across the street. The public forum is the actual discussion thread in reply to a tweet, not twitter as a whole.

            2. Where does the constitution guaranty the right to hear what other people have to say? And does it not guaranty the right to association (or not associate) with anyone one chooses? Does the right of association not apply to the President? No one’s speech is being restricted. The only thing that is being restricted is the ability to hear and be heard (not something that is protected by the First Amendment).

              1. So the government prohibiting Nazis from using public forums to speak isn’t a 1A violation, because Nazis don’t have a right to be heard?

        2. You’ve got that backwards

          Because Trump is President, and Twitter has agreed to let him use their property as a public forum, they are bound by the public forum rules.

          So they can kick Trump off, and not be a public forum. Or they can leave him on, and not be able to kick off any other Americans

          Pick one

          1. I don’t think it’s fair to say that twitter let Trump use its property as a public forum. Even under the court’s evaluation, it seems fairer to say that Trump’s use of twitter’s property turned it into a public forum with or without twitter’s consent (I doubt Trump asked twitter’s approval before he started tweeting after he was inaugurated). Also, until this decision I don’t think there is anything holding that his twitter feed was any kind of public forum.

          2. Alternatively, twitter is free to allow or disallow whomever the fuck it wants on its software because America is a free country.

    2. No, Twitter can still ban users for violating their generally-applicable rules. They are a private entity, not the POTUS.

      So no First Amd violation (at least in the general case where they are activating as a private entity, and not a gov’t cut-out; I’m sure wacky scenarios could be engineered).

      Next easy question?

    3. “Doesn’t this decision effectively prevent Twitter from banning ANYONE for any reason?”

      No.

      ” If the state is banned from bannings because this is a function of government, then other parties should be banned as well.”

      Why do you think that? The state can’t criminalize political speech. I can tell people to get the fuck out of my house if I don’t like their speech.

  6. […] & Prof. Eric Goldman (Technology & Marketing Law Blog) for more] [FURTHER UPDATE: see my follow-up post, about how President Trump’s ability to restrict things on his Twitter account differs from […]

  7. AOC blocks people all the time.

    1. Well yeah, but is she really, you know, an ‘official’ sort of official?

    2. And wouldn’t you know, there’s a lawsuit now about it.

    3. Yeah, but that’s okay. Trump is different. He’s not a legitimate President, because Hillary got 4 million more votes, and it was her turn. The courts are still #withher.

      1. You forgot to mention also, Trump privately used a vulgar word in a locker room generations ago. This demonstrates beyond any doubt that he is unconstitutional, not to mention a Russian spy who should be imprisoned.

        1. Right, and we all know he’s a racist, so he’s automatically unconstitutional.

        2. Nice bedfellows you got there, ML.

    4. think AOC will still have a strong argument that her account is not affected by the Trump ruling. The Second Circuit made it clear that it was not holding that every elected official’s Twitter account was a public forum. Instead, the primary factor was the fact that Trump used his Twitter Account to exercise gov’t power.
      AOC has not used her Twitter Account to exercise gov’t power — because as a mere legislator she cannot unilaterally exercise gov’t power. This is true for most elected officials in the country.
      Now it may be that AOC is using gov’t funds and gov’t staff to manage the account, which might also make it a public forum, but there is a very big distinction.

      1. The 2d Cir opinion addresses this: they are fairly clear that there will be some degree of factual analysis:

        “We do not consider or decide whether an elected official violates the Constitution by excluding persons from a wholly private social media account.” (op. at 4)

        “Of course, not every social media account operated by a public official is a government account. Whether First Amendment concerns are triggered when a public official uses his account in ways that differ from those presented on this appeal will in most instances be a fact‐specific inquiry.” (op. at 20)

        Try reading the opinion. It already addresses most of the questions raised in these comments.

      2. Specifically, it’s worth absorbing the huge, huge degree to which the gov’t conceded this was a public forum.

        That part of the decision is abundantly clear – the gov’t stipulated that Pres. Trump was using the @realdonaldtrump account in an “official” capacity.

  8. […] & Prof. Eric Goldman (Technology & Marketing Law Blog) for more] [FURTHER UPDATE: see my follow-up post, about how President Trump’s ability to restrict things on his Twitter account differs from […]

  9. Being a private entity could Twitter moot the issue by deleting @realdonaldtrump?

    1. That would be awesome

      Because then Trump would move to a new service that didn’t block conservatives, and take a large number of users with him

      1. Trump could move to a different — conservative separatist — medium today.

        1. Yes, Trump could move to a non-fascist medium today. And he probably should.

          But it would be more fun for Twitter to say “we refuse to be a public forum, so we’re kicking Trump off”, and them lose a lot of business as the crowds followed the point of interest

          1. What do you think “a lot of business” means here? A twitter account with several million fewer followers than Ariana Grande? I think twitter could survive that.

      2. Could Donald Trump moot the issue by deleting his account?

        If blocking one person is a violation of the First Amendment wouldn’t deleting his account (or moving it elsewhere) effectively be blocking everyone else on Twitter?

        Isn’t that worse?

        1. Of course he could. Then he has chosen not to speak in a public forum.

  10. No issue there, but my thought on this matter since it came up has been that a Twitter reply thread is nothing like a forum anyway.

    That’s because only a tiny fraction of the responses have any chance of being seen by the average someone bothering to scroll down to the replies. And the selection is made by Twitter according to what speech and speakers they happen to prefer.

    So instead, it’s like, say, the “letters to the editor” section of a newspaper.

    For another analogy, say some state actor, maybe a DMV or a police department, receives comments on their performance and services, interactions and experiences with the public etc, and out of the 10,000+ responses they’re going to publicly display, like, 3 or 4 of them. Is that a forum?

    1. “And the selection is made by Twitter according to what speech and speakers they happen to prefer.”

      So Trump cannot block people from posting to his account, but Twitter can prevent people from seeing any of those postings?

      Free speech indeed.

      But only for Twitter.

      1. Because Trump choose to join the government, he lost his right to free speech. No one forced him to, and he can resign at any time. It has been known to be an issue affecting government officials since the beginning of America. Trump could join another platform that didn’t block the posts, or ask his buddy to make one if it didn’t exist. He has no right to use Twitter. That is free speech.

        1. “Because Trump choose to join the government, he lost his right to free speech. ”

          You win the internet moron prize for the day.

          And the week is still young, so keep your fingers crossed.

        2. Twitter isn’t the one blocking the posts; it is Donald Trump, acting in his capacity as President, who is engaging in viewpoint-based discrimination by using a tool (blocking specific users based on their criticism of his political posts) that Twitter has provided to him.

  11. “Some readers have asked how it can be that Twitter can restrict tweets, and ban users for tweets it sufficiently dislikes, but @RealDonaldTrump can’t.

    That’s because Twitter is a private entity, which isn’t bound by the First Amendment.”

    Completely illogical. Donald Trump is a private citizen and his account is not the account of the presidency. If Twitter can block people they don’t like because they are private citizens, Donald Trump can block people from his private account.

    Further, the statement idea congress can’t censor people, but global corporations can is ridiculous on its face, especially when the “private entity” touts itself as a platform for the public to exercise its first amendment rights.

    “but once the court concludes that he’s acting as an official”

    So, ruling determined by the capriciousness of man, rather than based on law. Got it.

    “And if the blocking were done on a government entity’s account, such as an account run by a school board, a police department, or a city council, then the First Amendment would even more clearly apply.”

    False. Twitter is a private entity, subject to its own rules. People don’t lose their constitutional rights just because they become government employees.

    “Nor should it matter that President Trump is using private property for his speech.”

    Heh. So no consistency at all. Your premise is “private entities” can censor, but only censor the right people, which Volokh will explain is anyone he doesn’t like.

    “A city council, for instance, is barred by the First Amendment from kicking speakers out of an open comment period based on their viewpoints.”

    If you want to be taken serious, write something serious. The above happens all the time. Additionally, the people in a live city council meeting can disrupt what others are saying by yelling, using megaphones, and other tactics, the, literally, drown out what other people are saying. On twitter, no one can suppress other people’s tweets simply by sending one of their own.

    “a public university can’t have a policy saying, “we’ll issue all students university e-mail accounts, but we’ll delete the account of any student who uses the account to say something offensive based on race, religion, sex, or sexual orientation.””

    I like how you purposefully and dishonestly left out “political opinions”. With every word you write, you demonstrate what a hack you are.

    “Whether the First Amendment applies to a speech restriction generally depends on who is imposing the restriction.”

    You should reread the Federalist and Anti-Federalist Papers to remind yourself how stupid your above statement is.

    Lastly, twitter markets itself as a PUBLIC forum, where people can publish their own ideas. Twitter is NOT a publisher. It is PUBLIC platform for publishers. Nobody is prevented from publishing their own ideas when someone else publishes their ideas. The platform is non-rivalrous (the rivalrous nature of newspaper real estate and page real estate in a book has some merit for publishers to decide who they will publish). There is no competition for digital space, only competition for consuming eyeballs. You’re pretending the argument is about allowing for digital space, but the real argument is the “wrong” people are garnering a lot of consuming eyeballs.

    1. Twitter is clown nose on, clown nose off.

      For the purposes of limiting their liability they claim to be a platform.

      When comes to deciding what ideas can and cannot be expressed they are a publisher.

    2. “You should reread the Federalist and Anti-Federalist Papers to remind yourself how stupid your above statement is.”

      I, for one, am indeed curious what the Federalist and Anti-Federalist Papers had to say about the First Amendment.

    3. His article refuted every point you made.

      For example,
      ““A city council, for instance, is barred by the First Amendment from kicking speakers out of an open comment period based on their viewpoints.”
      If you want to be taken serious, write something serious. The above happens all the time. Additionally, the people in a live city council meeting can disrupt what others are saying by yelling, using megaphones, and other tactics, the, literally, drown out what other people are saying”
      Being disruptive is not a viewpoint. He said they can’t be kicked out for their viewpoints. I don’t even have to address the rest of your claims, because that sample shows how poor your reasoning is. Please try harder at reading comprehension.

      1. Can a high school ban someone from attending a city council meeting on the grounds that they are banned from the school?

    4. “Completely illogical. Donald Trump is a private citizen…”

      What are you talking about? He’s the President.

      “…the statement idea congress can’t censor people, but global corporations can is ridiculous on its face…”

      It’s necessary. In order to prevent Twitter from deciding who can or cannot use its services, the government would have to interfere. That interference is a free speech issue. The freedom to speak and associate requires that private actors be allowed to discriminate.

      Most of your post is patent nonsense.

  12. So, Trump can’t block people….. Hmm. A few questions.

    1. Can Twitter, as a private entity, block people or delete comments from Trump’s Twitter account, if it so desires?
    2. Can someone suggest to Twitter, say a Democratic candidate for POTUS, that certain people be blocked, or certain people’s comments be deleted from Trump’s twitter account. And can Twitter then follow through on those suggestions, if it so desires?
    3. Can someone different, a private citizen, say Donald Trump Jr, suggest to Twitter that certain people be blocked from Trump’s Twitter account? And can Twitter follow through on those suggestions, if it so desires?
    4. Can Twitter, as a private entity, choose to act in a partisan manner, deleting or shadow-banning those accounts which are GOP, while allowing those accounts which are Democratic?
    5. If number four is allowed, is that an “in-kind” contribution to the electoral campaigns, and as such, subject to FEC laws?

  13. Professor, you write that once it is determined Trump is acting in his official capacity when tweeting, then the First Amendment applies and his viewpoint discrimination is prohibited. But the President (and the White House) in his (its) official capacity commit viewpoint discrimination all the time, in both unofficial and official acts. The president chooses which media to engage in based upon which would be a friendlier viewpoint, he decides who to invite to public functions based upon the invitee’s expressed support of the president, he picks who to award medals and awards to and for what conduct, etc.

    Is it viewpoint discrimination to invite Kim Kardashian (a friend) rather than Ken White (a critic) to discuss sentencing reform? That decision limits one viewpoint from engaging in discussions with the president and public as much as blocking them on Twitter does. It cannot be said that inviting one person and barring another to meet with the president in front of the media is any less an act of viewpoint discrimination against those who have not been invited than it is not to invite people to participate in a discussion with the president on twitter. The only thing to distinguish not inviting a guest in person (which is treated as government speech) from blocking people on Twitter (which is not government speech) is not the act or the status of the inviting/blocking official, but the forum. For all the reasons you previously expressed skepticism that Trump’s personal Twitter account can be a public forum, the court got this wrong.

    1. The issues you raise go to the distinction between “government speech” and forums for speech. When a politician speaks, or the government facilitates speech but keeps close editorial control (eg like setting up a website), then the government speech doctrine applies and government can favor certain viewpoints.

      But when the government creates a forum that allows others to speak and does not diligently exercise editorial control, then it becomes a forum of some type and the government cannot then censor that speech based on viewpoint.
      Trump’s twitter feed is government speech. But the reply section is a forum because Trump has not tried to diligently edit to ensure all comments only reflect his opinions — just blocking a few users is insufficient.
      The other examples you recite are examples of government speech.

  14. This is a disappointingly superficial (and presumably rushed) analysis by an otherwise respected First Amendment scholar. No one following the recent discussion of Twitter, Facebook and similar platforms could argue with a straight face that Trump controls who sees his tweets — or even what tweets the world sees — any more than a newspaper columnist controls who sees his work (or what work gets published). We all get to visit Twitter but we never will own or control our content, as their terms of service make clear. This far more nuanced (and year old) analysis gets it right: https://www.nationalreview.com/bench-memos/trump-twitter-ruling-first-amendment-argument-wrong/

  15. The issue isn’t why Trump can’t block people but Twitter can. The issue is how ‘the public forum’ of @RealDonaldTrump can’t be fenced off by Trump by can be fenced off by Twitter. Can the landlord of the building kick a person out of a city council meeting for whatever reason they please?

    Okay I get it, government agent and all that, they have restrictions private citizens shouldn’t…Its sacred….can’t cross that line even in the name of freedom of speech even if it means pols can now simply offshore constitutional violations to third parties…but suddenly we’re back to overriding private property rights in the name of public good when it comes to baking cakes?. Seems pretty ad hoc to me.

  16. I understand that logic, but I think it is pretty superficial and does not reflect the nuances of what actually happens when someone blocks someone on Twitter. When Trump blocks someone on twitter, he isn’t limiting someone’s speech. He is simply limiting what speech he can hear (not protected by the First Amendment) and what speech can be associated with his own speech (an association right (or non-association right) that IS protected by the First Amendment). The second circuit’s reasoning completely ignores associational rights, despite the fact that at its core it is an associational issue (people should have the right to express their opinions in a forum that is directly linked to Trump’s speech). No one has the right to be heard. And no one, including the President in his official capacity, is required to associate their opinions with anyone else’s. I think the second circuit opinion is plagued by bias against this moronic President. While I share their disdain for Trump, but that isn’t a very good basis for establishing constitutional law that will have far-reaching effects on people of all political persuasions.

    1. Your last sentence is true of nearly every court that has held his administrative actions to be “arbitrary and capricious.”

    2. Once they’ve decided he’s acting as a public official not a private citizen, association rights take a back seat, no?

      I also don’t know what associating opinions means in this context. Do you mean like expressive association?

      I also fail to see any far-reaching effects. I think this is a novel area of law with limited applicability. It’s also not clearly determined either way by existing law, nor by absurd hypotheticals.

  17. I like free speech an awful lot, but we’ve gotten a long way from the Constitution when “Congress shall make no law …” has come to mean “The President shall hit no button on Twitter …”

  18. I don’t understand the conflation of “blocking” with “banning”, they are different things, but every place I bring it up, people ignore it.

    1. Under existing First Amendment law, gov’t actions that merely hamper speech are treated as a form of censorship. So the fact that someone who has been blocked has to take additional steps to speak has been “censored” for a First Amendment analysis.

  19. […] Government-Run Fora on Private Platforms, In the @RealDonaldTrump User Blocking Controversy […]

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