The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.