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4 Tips for Politicians With Social Media Accounts Who Don't Want to Be Sued

The ruling against Donald Trump's blocking of Twitter critics provides guidelines for staying on the right side of the First Amendment.

TwitterTwitterThe idea that you have a First Amendment right to follow the president on Twitter, as a federal judge affirmed yesterday, may seem fanciful at first glance. But as UCLA law professor Eugene Volokh noted here yesterday, U.S. District Judge Naomi Reice Buchwald's reasoning is plausible in the context of the Supreme Court's rulings on designated public forums, which cannot constitutionally exclude people based on their viewpoints. Public officials with social media accounts who don't want to be sued for violating that rule can glean useful tips from Buchwald's ruling:

It is still OK to ignore constituents who annoy you. Buchwald did not say the First Amendment requires that Donald Trump pay attention to his critics on Twitter. In fact, she said it would be constitutional for him to mute the accounts of users who irk him, meaning he need not even see their replies to his tweets. But she ruled that blocking their accounts went too far because it prevented them from directly participating in the "interactive space" associated with his tweets: the replies, the replies to replies, etc., which constitute a vigorous public debate about the president and his policies.

Keep it personal. If you don't want to be sued for blocking nudniks on Twitter or Facebook, don't present your account as the voice of your government office or agency. Buchwald notes that the @realDonaldTrump account, although created in 2009, currently is "registered to Donald J. Trump, '45th President of the United States of America, Washington, D.C.'"; that Trump's tweets have been deemed official records that must be preserved under the Presidential Records Act; that Daniel Scavino, the White House social media director, exercises control over the account, composing some of the tweets and posting others dictated by the president; and that Scavino has described @realDonaldTrump as a channel "through which 'President Donald J. Trump...[c]ommunicat[es] directly with you, the American people!'"

Don't conduct official business on your "personal" account. Buchwald notes that Trump, with Scavino's help, uses the @realDonaldTrump account "to announce, describe, and defend his policies; to promote his Administration's legislative agenda; to announce official decisions; to engage with foreign political leaders; to publicize state visits; to challenge media organizations whose coverage of his Administration he believes to be unfair; and for other statements, including on occasion statements unrelated to official government business." Sometimes Trump announces a decision on Twitter before it is revealed in other forums, as he did when he nominated Christopher Wray to replace James Comey as FBI director, when he fired Secretary of State Rex Tillerson and Secretary of Veterans Affairs David Shulkin, and when he declared that transgender people would be excluded from the military. "The @realDonaldTrump account," Buchwald writes, "has been used in the course of the appointment of officers (including cabinet secretaries), the removal of officers, and the conduct of foreign policy—all of which are squarely executive functions."

Don't exclude people whose opinions offend you from a public discussion that is otherwise open to everyone. Quoting from facts stipulated by both sides in this case, Buchwald notes that "the @realDonaldTrump account is generally accessible to the public at large without regard to political affiliation or any other limiting criteria"; that "any member of the public can view [Trump's] tweets"; and that "anyone [with a Twitter account] who wants to follow the account [on Twitter] can do so" unless he has been blocked. "Similarly," she adds, "anyone with a Twitter account who has not been blocked may participate in the interactive space by replying or retweeting the President's tweets." Trump does not dispute that he blocked the seven Twitter users who brought this lawsuit because they said things that offended him.

Maryland Gov. Larry Hogan, who recently settled a lawsuit challenging censorship of public comments on his Facebook page, did not follow these guidelines. The page, which is presented as the voice of the governor's office, features much the same material as you would expect on a government-run website, including announcements of new policies, praise of local heroes, and safety advisories. While generally allowing visitors to post comments, Hogan's office warned that "comments may be removed or access may be restricted at any time without prior notice or without providing justification." The governor's staff deleted messages urging Hogan, a Republican, to condemn Trump's ban on travelers from seven Muslim countries. The people who wrote those messages were blocked from posting further comments.

Phyllis Randall, chair of the Loudon County, Virginia, Board of Supervisors, made a similar mistake when she banned a local gadfly from her Facebook page after he posted a comment suggesting that members of the Loudon County School Board had taken official actions that benefited their relatives. Like Trump and Hogan, Randall presented her Facebook page, identified as that of "Chair Phyllis J. Randall," as a function of her office and a conduit for communicating with her constituents.

"If the Supreme Court's First Amendment jurisprudence makes anything clear, it is that speech may not be disfavored by the government simply because it offends," wrote U.S. District Judge James Cacheris when he ruled against Randall last year. "The suppression of critical commentary regarding elected officials is the quintessential form of viewpoint discrimination against which the First Amendment guards. By prohibiting Plaintiff from participating in her online forum because she took offense at his claim that her colleagues in the County government had acted unethically, Defendant committed a cardinal sin under the First Amendment."

Such decisions are misguided, National Review's David French suggests, because social media accounts are ultimately controlled by the companies that offer them. "Did Donald Trump create a forum 'owned or controlled by the government' when he decided to use his personal Twitter account for official purposes?" French asks. "The judge says yes. I disagree. In reality, the forum is owned entirely by Twitter, and it's controlled entirely by Twitter." French thinks Twitter's terms of service, which warn that "we may suspend or terminate your account or cease providing you with all or part of the Services at any time for any or no reason," mean that "using Twitter isn't like renting out a concert hall."

That's true in a sense, of course, but it seems to me the relevant question is whether Trump in practice controls access to the forum created by his Twitter account. If a city rented a concert hall for a town meeting that was open to the general public, ejecting or excluding people based on their opinions would be clearly unconstitutional, even if the rental agreement included boilerplate stipulating that the landlord reserved the right to evacuate the hall "at any time for any or no reason." By contrast, a mayor who rented the same space on his own dime for his daughter's wedding would be free to choose the guests based on whatever criteria he liked. The social media accounts that got Trump, Hogan, and Randall into legal trouble seem a lot more like the town meeting than the wedding.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Citizen X||

    that Trump's tweets have been deemed official records that must be preserved under the Presidential Records Act

    Further evidence that we truly live in an age of wonders.

  • Yellow Tony||

    I hope the official records will have enough detail. For example, I'd like to know if the POTUS send a tweet while smearing his greasy fingers on his phone's screen while spewing butthole vomit into the toilet (or any other opening.)

  • Chipper Morning Baculum||

    Is Trump president in your dimension as well?

  • Yellow Tony||

    No but McAfee is POTUS. After Stossel's sacrifice that granted all United States citizens perfect reason, the next logical step was apparently the election of McAfee. It's a pretty fun dimension, and I miss it dearly.

  • Chipper Morning Baculum||

    We need to pool our creative juices and figure out a way to open a portal. How did you get stuck here, anyway? It was Tony, wasn't it.

  • Yellow Tony||

    Of course it was this dimension's me. I can't tell you all the details, but there's a conspiracy among many Tonys of different dimensions to dominate all of creation. So one of the solutions to combat this growing threat is to have us fight among ourselves. So every dimension must have one "good" Tony for every "bad" Tony to maintain an equilibrium.

  • Citizen X||

    Pooling juices is what got this Tony stuck here in the first place.

  • Just Say'n||

    You're from a dimension where Stossel no longer lives? That sounds awful. Why couldn't Bill Weld be sacrificed instead?

  • ||

    The sacrifice has to be meaningful. Sacrificing Bill Weld would be no more effective than sacrificing Bill Maher.

  • Yellow Tony||

    If it weren't for Stossel building his mech that enabled him to grant reason to the entire continent, then my home dimension would be very similar to this one. But hey, at least his mustache is still alive. It's memorialized in a museum.
    Hillary Weld is a congressman, but after the aforementioned dimension-defining event, she's a pretty good woman.

  • Chipper Morning Baculum||

    Since Reason is no longer necessary in your dimension, what did the various Reason writers end up doing after McAfee's rise to power?

  • Yellow Tony||

    I didn't want to mention this because it's really sad, but most of them are dead. Shortly after the US' attainment of pure reason, scientific progresses advanced at a prodigious rate; which is also thanks to Stossel for open sourcing his mech's software, hardware, and design documents prior to his historic flight. While the many discoveries improved life around the globe, it also garnered the ire of the secretive fish people. In the first month of the these aquatic invador's malicious intrusion up humanity's lands, almost a quarter of mankind perished. Inauspiciously, most of the Reason writers were celebrating their victory on a beach, i.e. the second most dangerous place to be when invaded by fish people. The war is still being waged by the time I was jettisoned to this dimension, but it was mostly just us humans wiping up the final remnants of opposition.

    I digress, Soave survived the attack, but his hair committed suicide. (So to say Soave is alive might be a bit of a stretch.) The Jacket fought off a lot fish people before being fatally overwhelmed. Britches was too apathetic to come to the party; so he's a alive Ed defected to our aquatic nemesis because of a certain joke a certain commentator directed at him. I think that's all.

  • Just Say'n||

    "The Jacket fought off a lot fish people before being fatally overwhelmed"

    At least he died doing what he loved.

  • Citizen X||

    I warned them about violating the Benthic Treaties! BLUE HADES ain't nothing to fuck with.

  • BestUsedCarSales||

    Well, at this point I stand by calling Ed Krayven the Hunter.

  • Azathoth!!||

    What the fuck?

    Trump's in the right.

    There is no possible way to read the First Amendment that puts him in the wrong.

    Reason is so completely wrong on this.

    I thought it was just 'leftward creep'--but this is a headlong rush.

  • Chipper Morning Baculum||

    Meh, Trump might be right on this, but your incessant need to defend him on everything is sad.

  • Just Say'n||

    Meh, you may be right that it's sad, but your need to criticize a position that you agree with because of the principal involved is weasly

  • Yellow Tony||

    Meh, you might be right that's weasly, but your need to criticize criticism is one of my fetishes so it's making me hot and bothered.

  • Citizen X||

    Meh, seems like a pretty typical Hit'n'Run subthread to me.

  • Chipper Morning Baculum||

    Meh

    [unzips]

  • Sevo||

    "Meh, Trump might be right on this, but your incessant need to defend him on everything is sad."

    Heaven forbid facts get in the way of your feelz.

  • Azathoth!!||

    I really wish it was an incessant need to defend Trump on my part instead of Reason shitting on every principle it ever held.

    Because I don't just do it about Trump. I do it every time Reason abandons libertarianism in favor of ideas that expand arbitrarily wielded government power at the expense of liberty.

    Which is what this is.

  • Ben of Houston||

    Don't go overboard. I can definitely see the arguments for it being a problem. Just like you cannot silence someone at a town meeting or on the sidewalk. However, I find the implications of this ruling troubling. If it is a first amendment issue, you CAN'T make any reasonable policy. Twitter banning you for "hate speech" is blocking you from government offices.

    Quite frankly, given this ruling, the only sensible solution is for all elected officials to end their social media accounts completely.

  • BestUsedCarSales||

    Isn't not having a social media account the ultimate block?

  • Sometimes a Great Notion||

    Quite frankly, given this ruling, the only sensible solution is for all elected officials to end their social media accounts completely.

    But that would be a violation of the 1st Amendment! But yes real leaders don't use social media (hint we don't have real leaders anymore)

    I don't think this is that tricky. A town hall; govt office or a court is the legal place to petition the government, as long as Trump's twitter account doesn't start accepting tweets as office documents (I filed my tax return by Twitter @theRealDonaldTrump) then he can do what he wants with it.

  • BYODB||

    This is my problem as well. If Twitter is a public forum, it means Twitter is violating people's 1st Amendment rights by banning of blocking anyone for any reason since they might at some point visit Trump's twitter page.

    Or, in short, Twitter has just been nationalized into a Public Utility without any actual legislation and no one seems bothered by that. I guess I'm not Eugene Volokh, but this seems pretty fucking retarded to me.

  • ipsquire||

    If you're suggesting that Twitter isn't the government so POTUS can do as he personally pleases, you should consider that the government doesn't manufacture the guns, handcuffs and paddy wagons they use to lock up handbill printers.

  • Mickey Rat||

    So it is plausible that free speech is a positive right, apparently.

  • Just Say'n||

    I fully expect you to make this argument when Milo sues Twitter for suspending him from the platform. If it is unconstitutional for the president or an elected official to block a person on a private platform then obviously a legitimate extension of this principle would suggest that it is unconstitutional for that platform to ban users from interacting with their elected representatives.

    You can call the article: "How I #resist'd So Hard That I Defended Milo and Lost My Cocktail Party Invites"

  • Yellow Tony||

    The obvious solution to this is that we prohibit our representatives from declaring anything outside of a physical public forum. I also propose that all those who attend this political confluence of meatsacks must wear togas.

  • Yellow Tony||

    which constitute a vigorous public debate about the president and his policies.


    That's funny. Twitter is the premier shitposting website for most people. Would you call a situation where people saw off their genitals and throw them at each other a "debate?" I've seen conversations concerning some girl shitting into the mouth of another that are more vigorous, political, and intellectual than the crap that constitutes a debate on Twitter.

  • BestUsedCarSales||

    A lot of writers use it, and so I think they fear to admit that it's basically a giant website for mutual masturbation. It just turns out that many like to do so well screaming. (This is me)

  • Yellow Tony||

    A lot of forums and social media websites are digital chambers for mutual masturbation. The differences between are the severity of the strokes and how they emit noise (e.g. screaming, moaning, cooing, et cetera). One of the recent worst offenders is Discord. It makes some IRC channels look like weak wank circles.

  • Citizen X||

    Hit'n'Run differs mainly in that there is no lube and a lot of hateful eye contact.

  • Chipper Morning Baculum||

    And people tend to aim for the eyes

  • Yellow Tony||

    It's great. It reminds me of my childhood uncle parties.

  • BestUsedCarSales||

    Discord has proved too obnoxious, even for me.

  • Joe_JP||

    Pleasant images but what makes that separate from any number of things protected by the First Amendment?

  • Yellow Tony||

    I'm not saying it's separate. I'm just amused that anybody would state or imply that most tweets are anything but some person's handful of severed genitals.

  • Longtobefree||

    Well, the business that is Twitter says they are not a public forum, they are a private profit making (?) enterprise.
    So are all social media activities now 'public'? Can we get an amen to forcing each user to get a permit to assure that the true and correct identification is made for each and every post? I mean a 'common sense' 'save the children' action like a background check, training on the first amendment's true meaning, and restrictions on posts by liberals that offend conservatives (sometimes referred to as assault posting)?

    Yeah, that's what I expected.

  • Joe_JP||

    I'm not sure exactly if the opinion is correct but the "keep it personal" discussion does to me suggest that this case was closer than various others might be. The official records act, the stating that it is in effect his official account now, the use to announce certain governmental matters all added bite to the final result. Toss in the power to mute people, it is not really an outrageous opinion & it will help people who read Twitter accounts of other government officials too. It is not just some sort of "anti-Trump" thing. It should be appreciated as a libertarian result. He's not some private citizen and specifically said the account is basically governmental now.

  • Sevo||

    "...It should be appreciated as a libertarian result...."

    Joe will be here all week. And tip the waitstaff.

  • TrickyVic (old school)||

    "'The official records act, ""

    The deletion of official government emails isn't a big deal to many theses days. Over half the voters in the last election voted for someone who treated the official records act like a piece of paper, and will defend her for it.

  • brec||

    "Congress shall make no law..." Which law is the court's decision about?

  • Juice||

    Well spotted.

  • TrickyVic (old school)||

    ""The ruling against Donald Trump's blocking of Twitter critics provides guidelines for staying on the right side of the First Amendment.""

    It's not decided yet that Trump is on the wrong side of the law. He may win the appeal.

  • Just Say'n||

    Didn't you hear? The new hotness at Reason is to defend the spirit of free speech in private businesses, because now it's been turned against the Left. Just forget all the other stuff they ever said in the past.

    Besides, Russia fever dreams are collapsing so Sullum's got to write something.

  • TrickyVic (old school)||

    I did hear the wooshing sound of people like RC Dean leaving H&R.

    Is that about the same?

  • Microaggressor||

    I like how the very previous article has the XKCD comic stating plainly "The right to free speech means the government can't arrest you for what you say." And now we're handing out legal advice to not use the Block button. Apparently, Hihn was right. Internet aggression is tantamount to the initiation of violence.

  • Citizen X||

    Do you want a Hihnfection? Because typing your second to last sentence is how you get a Hihnfection.

  • BestUsedCarSales||

    So is saying his name at all. But we all secretly live for when he awakens from his slumber. It is our collective shame.

  • TrickyVic (old school)||

    +1 Duchess

  • Rich||

    Don't conduct official business on your "personal" account.

    But it's OK to conduct personal business on your "official" account, right? RIGHT?!

  • Don't look at me.||

    Well, sure. Yoga schedules, recipes, etc.

  • Curly4||

    I would agree if the twitter account is in the name of the president. That account would belong to the people of the US to read but if it is not a presidential account but Donald Trump personal account that would be a different situation.

  • Nardz||

    Thank you, Yellow Tony and others.
    This thread was hilarious

  • Tionico||

    Two points:
    First, this judge had NO JURISDICTION in this matter. READ the Constitutioin.. Art 3 Sec 2 Par 2. ALL cases involving an ambassador "or other minister of the public trust" OR any State or States, as named parties, can ONLY be taken up by SCOTUS on original jurisdictioin. This matter names Donald Trump, President, as defendant or respondent. Thus SCOTUS must take this or no court.

    Second, anything Mr. Trump does as an individual or as President is NOT a "first ammendment violation". Go and READ that short Article of Ammdnemtne once more. Pay particular attention to the first FIVE words: CONGRESS shall make no law...... then it goes on to name all the things CONGRESS cannot make laws prohibiting or establishing or preventing. Mr. Trump is NOT Congress assembled, last I checked.

    This same principle ought be thrown in the faces of the likes of ACLU when they get all knicker-be-knotted over some private individual on his own expense putting up a cross at some memorial out in the desert. Throw all those cases out, as CONGRESS nemver made a law "establishing" or any such thing. Nore have Congress made any laws regarding the use of twitter, or what the President may/mayn't do concerning his communication.

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