More on the First Amendment and @RealDonaldTrump

(Matt Rourke/Associated Press)

Last week, I blogged about whether the First Amendment restricts President Trump's ability to block users from his @RealDonaldTrump Twitter account. The Knight First Amendment Institute said "yes." I said "probably not," because I thought Trump's actions with regard to @RealDonaldTrump—an account that (unlike @POTUS) precedes the Trump presidency and that conveys Trump's individual voice—would likely be viewed as not "government action" but rather his own individual decisions and thus not bound by the First Amendment. I said (and still think) that it's a close call, but I noted that some cases had suggested that even speech on government matters by high government officials may be seen as their own speech, rather than the government's, and I thought this was so here.

http://www.washingtonpost.com/video/editorial/is-being-blocked-by-trump-on-twitter-an-attack-on-free-speech/2017/06/07/e425c534-4bae-11e7-987c-42ab5745db2e_video.html

Jameel Jaffer from the Knight Institute was kind enough to respond. I'll quote his entire response and then offer a few thoughts of my own. (Amanda Shanor (Take Care) and Robert Loeb (Lawfare) have posted analyses that are similar to the Knight Institute's, though more detailed and worth reading.)

First, Jaffer's thought:

Does the First Amendment Restrict Trump on Twitter?

The First Amendment binds President Trump when he acts in his official capacity. How do we know, though, when he's acting in his official capacity, rather than his personal one?

Earlier this week, the Knight Institute sent President Trump a letter on behalf of people whom President Trump had "blocked" from his most-followed Twitter account, @realDonaldTrump. We argued that the account constitutes a "designated public forum" under the First Amendment and that consequently President Trump is barred from blocking people from it simply because they ridiculed or disagreed with him. But why does the First Amendment apply at all, one might ask, to @realDonaldTrump, an account that Trump opened long before he became president and that could be understood as the "personal" counterpart to @POTUS, the "official" presidential account?

Professor Volokh argues (tentatively) that @realDonaldTrump is the megaphone of "Trump-the-man," not "Trump-the-president." Government officials, he points out, can operate in two different capacities—"on behalf of the government" and "expressing their own views." He writes that Trump opened @realDonaldTrump before he became president, that the account is "understood as expressing [Trump's] own views—apparently in his own words and with his own typos," and that the account does not express "the institutional position[s] of the executive branch." He distinguishes @realDonaldTrump from @POTUS, which has a handle "more focused on the president's governmental role." He states that the question falls "near a borderline that hasn't been mapped in detail," but he concludes (again, tentatively) that @realDonaldTrump is not a public forum.

It's of course true that public officials sometimes act in their personal capacities. A president probably has less latitude to act in a personal capacity than, say, a city councilor does, but even a president's statements will sometimes be attributable to the president-as-citizen rather than the president-as-president. If President Trump established a private Facebook page to communicate with business acquaintances about golf, no one would contend that the First Amendment barred him from excluding people from the group based on their views.

But wherever the line between personal accounts and officials ones, @realDonaldTrump must be on the "official" side of it. Here are the facts, as I understand them:

• The account is operated by President Trump.
• In the account's "bio" line, Trump identifies himself as the "45th President of the United States of America." The location line says "Washington D.C." The background image is a photograph of Air Force One.
• The president uses the account almost exclusively to communicate about government affairs, including international affairs, economic policy, and appointments to senior government positions. This is not an account focused on, say, literature or film or real estate.
• The president uses this account to make major official announcements. For example, the president announced at 4:44 on Wednesday morning that he intended to nominate Chris Wray for the position of FBI director. The president announced this through @realDonaldTrump before he (or anyone else) announced it through any other channel. @POTUS did not tweet it at all.
• The president uses the account to engage foreign leaders, to frame world events, to conduct diplomacy, and to state foreign policy goals.
• The White House press secretary, Sean Spicer, has said that the administration considers the president's tweets to be "official statements" of the White House.
• The White House social media director, Dan Scavino, promotes @realDonaldTrump, @POTUS and @WhiteHouse equally as channels through which "President Donald J. Trump … communicat[es] directly with you, the American people! #USA"
• The courts have given weight to the president's tweets in assessing the motivations behind government policy. (See, e.g., the Fourth Circuit's travel ban decision.)
• Some of the president's aides are reported to have written some of the tweets.
• The president hasn't limited access to the account, e.g. to family members, friends, or business colleagues. To the contrary, the account is open to everyone—everyone, that is, except those who are blocked because of their viewpoints.

If these are the facts, as I think they are, I don't think @realDonaldTrump can fairly be characterized as a project of Trump-the-man, even if it began as his project. Whatever the account once was, it's now an important channel through which Trump-the-president communicates with Americans about his presidency. It's not a personal account; it's an official one—and consequently it's an account to which the First Amendment applies.

Here's my thinking:

1. That Trump is talking about government-related matters to the public, including what he is doing and what he will do, doesn't make it government speech. As I mentioned in my earlier post, when an incumbent running for reelection gives a campaign speech, he is not acting on behalf of the government. Likewise, even Supreme Court justices who believe that the government may not endorse religion think that it's fine for government officials to express religious views in their speeches—here, for instance, is the view of Justices John Paul Stevens and Ruth Bader Ginsburg in Van Orden v. Perry:

Our leaders, when delivering public addresses, often express their blessings simultaneously in the service of God and their constituents. Thus, when public officials deliver public speeches, we recognize that their words are not exclusively a transmission from the government because those oratories have embedded within them the inherently personal views of the speaker as an individual member of the polity.

When I put up posts, or moderate comments, I'm not acting on behalf of the state of California (even though blogging is part of my job, for which I get some modest credit in my job evaluations, much as professors who write op-eds are given some credit for such "service" to the public); likewise for Trump. To be sure, my powers stemming from my government job are small, and Trump's powers are vast. But the principle strikes me as quite similar.

For whatever it's worth, the only case that has closely dealt with this, Davison v. Plowman, took the view that a government official may be speaking as a citizen and not as the government, even when he is "mak[ing] public statements though social media" to constituents—though I should acknowledge that this is just a federal trial court case and not a binding precedent.

2. Sean Spicer's statement that @RealDonaldTrump tweets are "official statements" doesn't count for much here, I think—I don't think that a press secretary can bind the president, the executive branch or the judiciary on a legal question such as this.

3. That courts have given the president's tweets weight in determining his motivations is not, I think, relevant: Indeed, the U.S. Court of Appeals for the 4th Circuit's decision, cited by the Knight Institute, cited a tweet from when Trump was a candidate—that certainly couldn't have been government speech. The theory behind the 4th Circuit's use of the tweet is that Trump's motivations were relevant to whether he had a discriminatory intent at the time he created the policy, and for that the 4th Circuit didn't care whether the tweet was an official statement or just his views in 2015 as a private citizen.

4. To the extent that the president's aides regularly write tweets in his name (not certain, and the cited source is from the time when the president was just a candidate), the matter might be different, though that is not entirely clear.

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While I'm talking about this, let me briefly note one other post about this, from Noah Feldman (Bloomberg). Feldman focuses on the fact that Twitter is a privately owned platform and concludes that "it's highly likely that there is no state action when blocking the followers takes place" on such a private platform.

I don't think that's quite the right inquiry, though: If, for instance, a government agency rents space in a privately owned building to hold a public meeting and then lets citizens speak during a public comment portion of the meeting, it has created a limited public forum in which it can't discriminate based on viewpoint.

The same is true if a government agency (and not just a single politician) runs a Facebook page and allows citizens to comment there—that would indeed be a "limited public forum," because it's government-run even if it uses private property. (See the Davison cases cited in my original post.) Likewise with Twitter, the question is whether Trump is acting as Trump-the-man and not Trump-the-government-official in running the Twitter feed, not whether Twitter is a state actor.