Free Speech

@RealDonaldTrump and Twitter: Public Forums and Private Architecture

Today’s decision fits awkwardly with a usual element of a designated public forum – that the government has created rules allowing for open discourse and is thus bound by those rules.

|The Volokh Conspiracy |

In Knight First Amendment Institute v. Trump, the district court held that "the interactive space of a tweet from the @realDonaldTrump account constitutes a designated public forum." The Second Circuit today affirmed.

The briefs focused heavily on whether or not Trump has been tweeting in his governmental, not personal, capacity. The district and circuit courts answered in the affirmative, and I think I am persuaded. The briefs don't spend as much time on a doctrinal awkwardness, which is that in every case I can think of (and I freely confess that I have not canvassed the case law in the hours since the opinion came down) the rules governing a designated public forum were created by the government itself. As the name suggests, a designated public forum generally arises when the government designates a forum for open discourse: the government creates rules that allow anyone to speak, and it thereby creates a designated public forum.

In this case, though, it was Twitter's own rules that defined the forum, and those rules played a huge role: because the interactive space didn't allow Trump to, e.g., moderate comments, it was a designated public forum. And because of those same Twitter-created rules, the government couldn't say that the commenters were engaged in government speech: if the government has the ability to approve or disapprove speech, then it can be government speech (as in Walker v. Sons of Confederate Veterans, in which the Supreme Court found that Texas license plate designs are government speech even though created by private parties). But if the government has no such authority, it is hard to say that there is any government speech.

A brief back-and-forth in the briefs touched on this. The Knight Foundation brief in the Second Circuit said (on page 29):

Defendants have opened this forum to speech by the general public. The comment threads are accessible to anyone with a Twitter account without regard to political affiliation or any other limiting criteria. Defendants have not published any rule or policy purporting to restrict, by form or subject matter, the speech of those who participate in the forum.

And the government replied (on page 17 of its reply brief):

Plaintiffs argue that defendants "have not published any rule or policy purporting to restrict, by form or subject matter, the speech of those who participate in the forum," and that they have not "sought to limit the forum to specific classes of speakers based on their status." Br. 29. But these are not choices available to Donald Trump in maintaining his personal Twitter account. He has chosen to make his account public, which allows anyone with or without a Twitter account to view his tweets. This is entirely consistent with the fact that he uses the @realDonaldTrump account to broadcast his own speech. But Twitter establishes the rules by which he may engage with others on the platform. Twitter does not allow its users to disable or delete replies or comments, or to confine them to particular topics. It allows them only to pick and choose who they want to interact with on the platform, and how they wish to interact with them.

Neither side pursued the unusual aspect that private rules governed the public forum, and neither came up with an example of any other designated public forum in which the relevant rules were privately created.

There is a reasonable argument that when Trump decided to make official announcements via Twitter, he accepted the Twitter-created rules and thus effectively transformed the interactive space for his Twitter feed from a private Twitter-created forum (which would be a designated forum if the government had created on a government platform the rules that Twitter created) into some sort of public forum. And, the argument might continue, if that makes for an awkward fit with our existing categories of public forums, so be it: we should not, on this argument, let a rigid conceptualization of these categories blind us to the facts that Trump is acting in his governmental capacity via Twitter and can't come up with broad viewpoint-neutral rules to block those he doesn't like (because he isn't allowed to devise any rules for Twitter). Continuing in this vein, one could note that Trump could have chosen instead an option that would have allowed him to approve comments – say, a moderated blog – but instead chose to accept Twitter's rules, and so is bound by them.

But there are counterarguments. Perhaps the fact that the government didn't create these rules highlights that this isn't really a government-designated public forum (which is what we mean by "designated public forum", i.e., that the government is doing the designating). In Walker, the Court said that the "government does not create a public forum by inaction or by permitting limited discourse, but only by intentionally opening a nontraditional forum for public discourse." And one might think that if the government doesn't create the open-discourse rules, then the government hasn't created anything.

In any event, this highlights the importance of Twitter's private architecture. If Twitter had a different set of rules, or were to change its rules tomorrow, such that users could approve replies/likes/retweets or set up broad rules on the use of Twitter's interactive space in their Twitter feeds, then presumably the interactive space would no longer be a designated public forum for politicians who chose to act in an official capacity on Twitter.

At least in this case, private rules rule.

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  1. Indeed, the public forum/private ownership makes this a very awkward case. One must have a Twitter account to follow President Trump’s tweets. However, Twitter has recently banned a number of people, including high profile conservatives. Effectively, Twitter is banning people from following President Trump’s tweets (and interacting with them), and is interfering in a what is now a designated public forum.

    Can James Woods now, for example, sue Twitter for interfering in participation in a designated public forum, and demand his account not be suspended, as his free speech rights are being interfered with?

    1. I think this is a fair argument, based on the language of the court. By making the case that President Trump’s twitter page is a “designated public forum” they have opened twitter to this problem.

      I think this case is really a failure of the Court to understand Twitter. If you are blocked on Twitter by another user you can log out and still see their Tweets. So any harm that arises from not being able to see the President’s tweets is de minimums.

      The only remaining restriction then is the ability to reply directly to President Trump. I don’t think there is any First Amendment problem with the President screening his mail and not accepting, for example, letters from registered Democrats, even when he is conducting official business. So there shouldn’t be any problem with the President screening his Twitter timeline.

      1. The court held that the restriction on being able to interact with other people in the replies (without a workaround) was an impermissible burden on speech, which is why it’s okay for Trump to mute people (so he is not aware of the comments) but not block them (so they can’t comment).

    2. “…and is interfering in a what is now a designated public forum.”

      So what? Twitter could ban all government accounts, too. Just like I don’t allow the government to rent my house. That would be true even if the previous owner had allowed the government to use it as a designated public forum (albeit privately owned).

      “Can James Woods now, for example, sue Twitter for interfering in participation in a designated public forum, and demand his account not be suspended, as his free speech rights are being interfered with?”

      Sure, anyone can sue, for any reason. He wouldn’t win. Because Twitter isn’t subject to the 1A.

  2. I am currently blocked on Twitter by a prominent congresswoman, whose district, coincidentally, is within the Second Circuit. With this decision, obviously, she is now violating a “clearly established” right of mine. How much can I expect to recover in my sec. 1983 lawsuit?

    1. Two lawsuits were filed today against AOC for this reason. One by a Democrat, one by a Republican.

  3. If Trump’s main purpose is to vent, then could he disable all replies on the account, so that nobody could post other than Trump personally? That would be content neutral. It would also mean that government employees other than the President would not be needed to administer the account.

    Then other private Twitter users could create accounts pro-trump and anti-trump for the public to comment, but each censoring anything antithetical.

    I’m not a Twitter user, so my question is both technical and legal.

    1. This and F.D. Wolf’s comment above make me think that we’re about six months away from all these think pieces in WaPo, Vox, HuffPo, and elsewhere about how conservatives and hate groups used this ruling to target all these fragile democrat politicians.

      1. “That public “whatever” is called public sentiment.

        And wielding the power to shift it is how we actually achieve meaningful change in this country.”

        seems like any defense of hers is now out the window

      2. Well, the right “learning to weaponize our tactics against us!” is certainly accelerating.

    2. I don’t follow her, but from what I’ve seen in a brief perusal, I would distinguish this case by the fact that AOC doesn’t make/announce policy in her official twitter feed like Trump does. She links to press releases from her office.

      1. How does linking to the press release not announce policy from that account?

        1. Again, all my opinion, but there’s an alternate channel that makes the announcement beforehand.

          I did find a colloquy with Sen Cruz about co-sponsoring some reform bill or other, which IMO did sound a lot like making policy via that account, so she may have to switch from block to mute. The horror!

          1. My inclination would be to have a hard separation between two different sorts of Twitter accounts– an official account that links to press releases, discusses policy positions, and makes political arguments, and a personal account that sticks to fishing trips and selfies at the baseball game.

            The former account can’t block anyone; the latter account can. And if official business makes its way into the personal account, then it can’t block anyone either.

            That’s the most coherent rule here.

            1. Seems to me that the most coherent rule is that if the account belongs to the person then it’s private and if it belongs to the office or agency then it’s public.

              1. I agree with this approach.

          2. Even with the exchange with Sen. Cruz, neither was actually exercising any gov’t authority. As for press releases, AOC cannot execute any proposal on her own so any press release is only about something she wants to do. This is no different than a promise a politician makes during a campaign.

    3. I 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.

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