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Blocking of Twitter Users from @RealDonaldTrump Violates First Amendment

So holds a federal district court today, in Knight First Amendment Institute v. Trump.

President Trump has been blocking some Twitter users from his @RealDonaldTrump account, apparently because of their viewpoints. (The President apparently stipulated, in this lawsuit, that "[s]hortly after the Individual Plaintiffs posted the tweets ... in which they criticized the President or his policies, the President blocked each of the Individual Plaintiffs," and the President "[does] not contest Plaintiffs' allegation that the Individual Plaintiffs were blocked from the President's Twitter account because the Individual Plaintiffs posted tweets that criticized the President or his policies.") This is unconstitutional, a district court ruled today, reasoning:

[1.] The virtual space provided by Twitter for replying to the President's Tweets is a "designated public forum" -- a space controlled (even if not owned) by the government that is generally open for public speech to fellow members of the public, and in which the First Amendment forbids viewpoint discrimination. The Tweets themselves aren't a forum, because they are the President's own speech; but the space for public replies is a forum. The court's concern is that replies are a valuable means for the repliers to speak to fellow members of the public. The court recognizes that there's no right to speak to the President in a way that the President is obliged to read; the President remains free, for instance, to use Twitter's "mute" function, which would keep him from seeing the user's replies when he reviews his own feed.

[2.] The President controls this space in his capacity as a government official, and not just as a private citizen.

The record establishes (1) that the @realDonaldTrump account is presented as being "registered to Donald J. Trump, '45th President of the United States of America, Washington, D.C.'"; (2) "that the President's tweets from @realDonaldTrump ... are official records that must be preserved under the Presidential Records Act"; and (3) that the @realDonaldTrump account 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.

That is, the President presents the @realDonaldTrump account as being a presidential account as opposed to a personal account and, more importantly, uses the account to take actions that can be taken only by the President as President.

And though the @RealDonaldTrump account was created long before the election, "the President and [his assistant Daniel] Scavino's present use of the @realDonaldTrump account weighs far more heavily in the analysis than the origin of the account as the creation of private citizen Donald Trump."

[3.] Though blocked users remain free to read the President's Tweets, and can even comment on them through various workarounds (such as by creating new accounts), the various workarounds "require [the individual plaintiffs] to take more steps than non-blocked, signed-in users to view the President's tweets," which "delay[s] their ability to respond to @realDonaldTrump tweets." This is not a vast burden, the court concluded, but "the First Amendment recognizes, and protects against, even de minimis harms."

[* * *]

My quick thoughts: I think the court's conclusions 1 and 3 are pretty clearly correct; I think there's a plausible case that the comment space should be labeled a "limited public forum" rather than a "designated public forum," but that is not relevant here—the key distinction between the two kinds of fora is that restrictions on speech in designated public fora must be content-neutral and in limited publica fora need only be viewpoint-neutral, but here the plaintiffs are alleging viewpoint discrimination, which is equally barred in limited and designated public fora.

The harder question relates to conclusion 2. As I've argued before, even when the President is giving a public speech, he is understood at least in part as expressing his own views. One way we see it is when the President is running for reelection; I think we would recognize his stump speeches as him speaking as a person, not speaking as a government official. Likewise, consider a related issue under another First Amendment provision, the Establishment Clause—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.

And this is true even when the speeches discuss the officeholder's political actions, and even announce new programs or appointment decisions.

This having been said, I think the court's position is plausible, especially given that White House Social Media Director and Assistant to the President Daniel Scavino seems to be closely involved with the Twitter feed—this doesn't distinguish the religion-in-a-public-address scenario, but probably does distinguish the reelection stump speech scenario, where the elected official is generally not allowed to use government staff. I suspect that, if the case is appealed, the Second Circuit will agree with the district court's decision here, though it's hard to know for sure.

For a court decision that, contrary to the holding in this case, upheld a governor's decision to block commenters from his Twitter and Facebook feeds, see Morgan v. Bevin (E.D. Ky. 2018).

UPDATE: I added some material to item 1 to make clear that this is about Twitters users' right to use the reply function to communicate to fellow members of the public, and not about any right (which the court specifically rejects) to have their replies be readable by the President.

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  • Brett Bellmore||

    So, in order to retain control over his own Twitter account, he'd have had to pretend he hadn't been elected President? Accurately describing himself as President caused him to forfeit control? That seems to be the substance of point #2.

    Suppose the President's private phone number were leaked... Would it be unconstitutional for him to use caller ID and blocking?

    The problem here seems to me to be the leap from the right to petition the government for redress of grievances, to the idea that the right requires that every possible route for delivering the petition be left open.

  • Eugene Volokh||

    Good question -- I didn't discuss this in the original version of the post, but your comment prompted me to clarify things: The court's concern is that replies are a valuable means for the repliers to speak to fellow members of the public. The court recognizes that there's no right to speak to the President in a way that the President is obliged to read; the President remains free, for instance, to use Twitter's "mute" function, which would keep him from seeing the user's replies when he reviews his own feed.

  • Brett Bellmore||

    So this is more about communicating with people other than Trump? That makes more sense.

  • MonitorsMost||

    Thought experiment. Imagine Donald Trump started hosting a radio show in which he delivered his views to the country. A modern day Fireside Chat. But as part of the program, Trump has segements where he would take calls from the listeners. The producer heavily vets calls based on viewpoint discrimination. Is this unconstitutional? What about if Trump instead of taking callers, only invited guests on the show who were also vetted by viewpoint discrimination? What if instead of a fireside chat, this was the "Trump 2020 Show"?

    I think the first scenario is probably unconstitutional while the second one is not. The difference between the shows would be based on the type of forum. Public forum and non-public forum. Once it changes to election, it's not about forum any longer, it's about official or personal capacity.

    I agree with Eugene's analysis more than I agree with the court's opinion. Ultimately, the court largely treated private/official capacity as an extension of forum analysis. I think that is not the correct way to look at it.

  • M.L.||

    The radio show is a very good comparison, I think. There's no way you could properly run a radio show that takes calls without vetting the calls based on viewpoint and content. So, then, it's unconstitutional for a public official to have a radio show? That can't be right.

    In EV's previous posts on this issue, I argued that Twitter reply threads don't seem like a public forum at all to me, because they are merely an extremely selective highlighting of a tiny fraction of a percentage of responses. Just like a radio show, but even far more selective. Only, Twitter and its algorithms are the producer in this case. (Note that it's only the reply threads that are at issue here, blocked users are still free to discuss and quote the President's tweets on their own pages and on Twitter generally.)

    I'm on the fence, because EV's analysis makes sense, too. There does seem to be some valuable speech rights at issue and a public forum of sorts -- but, is that contingent on the degree to which Twitter's sorting algorithms and policies are actually open and neutral as to content and viewpoint? By that I mean, is part of the public nature and openness due to the fact that the crowd is determining (in part) which responses are at the top? Perhaps the "likes" are part of the speech as well? Twitter's algorithms and policies are not content or viewpoint neutral, but they seem quasi-neutral (for now).

  • MonitorsMost||

    I don't agree that it is impossible for a public official to host a radio call-in show and not engage in viewpoint discrimination. C-SPAN (which I don't believe is a state actor) does this. They will vet based on content (on-topic comments and no vulgarity) but they do not vet calls based on viewpoint.

    In the context of a "useful" radio call-in show, the answer is the state actor would have to operate in their individual capacity. Which means not using government funds and not speaking on behalf of the position. The court in this matter faulted Trump for making announcements of official policies from his twitter account as evidence of him speaking in his official capacity.

  • nonzenze||

    That would imply that the court has to engage in a per-account analysis of whether Trump blocked each one due to allowed concerns (vulgarity, relevance) and not prohibited concerns (viewpoint).

    All other points aside, litigating each blocked account does not sound logical.

  • NOVA Lawyer||

    nonzenze,

    Eugene explained this in the main post. There are designated public fora and limited public fora, the first requires content-neutral regulation and the other viewpoint-neutral regulation. A case by case analysis is always required when analyzing whether a particular user (whether in virtual space or physical space) was blocked for content or viewpoint or some other reason. That you don't like case-by-case analysis isn't really a valid objection to the court's analysis or result.

    Any rule that places limits on government conduct will, at the margins, require case-by-case analysis. Only absolutely unfettered discretion ever avoids that and, thankfully, that is not the government our Constitution authorizes.

    (The objection regarding whether the Trump twitter account is a government actor is an entirely separate issue. But your aversion to "per-account analysis" adds nothing to that discussion.)

  • nonzenze||

    That you don't like case-by-case analysis isn't really a valid objection to the court's analysis or result.

    Of course it is. The Supreme Court routinely formulates doctrine in an effort to reduce case-by-case analysis in favor of 'bright line rules'.

    There are many reasons that this is a legitimate judicial interest: it preserve court resources for more important cases, it results in more predictable and uniform judgments and it gives everyone much clearer advance notice of what the law requires.

    Now in this particular scenario, maybe the dis-favoring of doing a case-by-case analysis of tens of thousand anonymous internet posters is counterbalanced by a strong need to maintain an open public forum. I'm open to that possibility, but it has to be squarely addressed in favor of the countervailing interests.
  • NOVA Lawyer||

    nonzenze,

    I think that you are overplaying the conserving judicial resources hand. That is only legitimate if one of two "bright lines" is adopted:

    1. A government website/comment Board/twitter account can block/censor anyone for any reason;

    2. A government website/comment Board/twitter account cannot block/censor anyone for any reason.

    Neither of those seems remotely reasonable.

    Further, if the standard is vulgarity, it is unlikely that blocking someone for vulgarity will result in litigation as, generally, it is pretty clear whether the written comment contains vulgarity. Threats and "offensiveness" may be closer to the line, but those sorts of judgments are made all the time.

    I am not aware that courts are flooded with lawsuits over, say, license plate restrictions. Cases exist, but it isn't exactly an overwhelming flood. So although each Twitter user blocked might have a complaint, very few would go through the trouble and expense of litigating over being blocked, particularly when their comment was close to the line of acceptable behavior and it is far cheaper and easier to open a new account.

  • RickCaird||

    I still am not convinced. Why would these people need access to Trump's Twitter feed in order to talk to people other than Trump. They could use their own Twitter feed, a variety of blogs, or even posting comments on reason.com. It is not as if they do not have significant alternate opportunities. It would follow, then, if person A were commenting on Trump's Twitter feed, then person A could not block anyone from their own Twitter feed who in on Trump's Twitter feed.

    This ruling is just more nonsense.

  • caseym54||

    What if Twitter decided to delete all supporter's comments? Would that be OK? It's not like they are bound by any rules themselves.

  • Brett Bellmore||

    True, they're demonstrably open to treating people differently based on political viewpoint.

    That, of course, is the basic problem with a President relying on any means of communicating with the public that isn't a common carrier.

  • caseym54||

    And now we get to the question of private companies that have functional control of a medium of [removed]even if they created the medium), and at what point they become "common carriers" and subject to 1st amendment rules. Facebook is another example.

  • caseym54||

    odd that "expression" was removed.

  • David Nieporent||

    And now we get to the question of private companies that have functional control of a medium of [removed]even if they created the medium), and at what point they become "common carriers" and subject to 1st amendment rules. Facebook is another example.

    Common carriers are not state actors, and do not become subject to 1st amendment rules.

  • Brett Bellmore||

    OTOH, they don't get to exercise editorial control over the content transmitted over them, either.

  • J555||

    The court's concern is that replies are a valuable means for the repliers to speak to fellow members of the public.

    But that right was never impeded to begin with. You're free to go on Twitter and air your views on Trump or any other political figure. (Though probably not any Democratic political figure, Twitter takes a dim view of that)

    The argument here is that people have a right not merely to air their views, but to have their views aired wherever they wish them to appear. You might as well argue that if my governor gives a speech I have the right to stand there with a bull-horn and give my own running commentary on it.

  • Kai-HK||

    +1. The right to free speech is not the obligation that you be provided platforms upon which to apply your right. Additionally the right to petition is not the obligation of officials to provide you the means to petition. You must exercise your rights using your own means. I really do not see the legal reasoning or constitutional principles at play here that would provide cover for forcing a public official to have to accept any speech that is directed toward them in any fora.

  • nonzenze||

    I think you misunderstand the public-forum doctrine. You are indeed correct there is no right to be provided a platform.

    But it does imply that if the government creates a platform and allow some people to speak in it, it must now allow everyone in a viewpoint neutral fashion.

    That is to say, you are not owed anything except equal treatment with others.

  • NOVA Lawyer||

    nonzense,

    Exactly right.

    If the White House official page opens itself to comments by the public, then it can't censor commenters based on viewpoint. The White House does not, however, have to open its official page to commenters.

    In this case, if Trump blocked all Twitter replies to his comments, presumably that would be okay. But once he allows some, he must allow all without regard to viewpoint (assuming he is using the Twitter account as an official government communication channel, which I think he pretty clearly is, obviously others disagree).

  • nonzenze||

    Yeah, if I were him I'd ask Twitter to just end the comments on his tweets and be done with it.

  • Belial Issimo||

    You may not have a right to have your replies read by the President, but I'd say the Petition Clause gives you the right to have them readable by him.

  • Brett Bellmore||

    I'd say it only requires you to have some reasonable way to petition him, not that he lay open every means of communications he used to your petition.

  • Grumbler||

    Agreed. People with opposing view have the ability to post those views on Twitter accounts which they are free to establish.

  • Joe_JP||

    "reasonable way"

    "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

    If people have a "reasonable way" to speak during political campaigns but are blocked in various ways, is it constitutional too?

  • Careless||

    What law would be preventing people from petitioning the government if this had gone the other way?

  • Rossami||

    re: "If people have a "reasonable way" to speak during political campaigns but are blocked in various ways, is it constitutional too?"

    Well, that already happens. Consider a standard in-person stump speech. You are allowed to clap, applaud, boo, yell questions, etc. But if you start yelling random profanities, you could get arrested under public decency laws. Likewise, if you start yelling threats (and they are credible), the Secret Service will take you to the ground and the courts will back them up. For another example, you can protest the candidate but you may not position your protest on the same stage or sound an air-horn any time the candidate opens her mouth.

    Or consider a different scenario - one even more direct to the 'redress of grievances' purpose. You are going to court to contest an IRS ruling (or any other petty bureaucratic outrage). The court is entirely free to require you to speak through hardcopy written channels and may refuse to acknowledge things sent by email.

    I'm not saying that those are the right social policies but they have all been upheld by the courts and are thus presumably constitutional.

  • NOVA Lawyer||

    All your examples are viewpoint neutral limitations, which is the point.

    The IRS could not, consistent with the Constitution, accept some submissions by email and reject other email submissions using the criteria of whether the submissions are "pro-Trump". The only issue really in question here, it seems to me (and apparently Eugene), is whether the Twitter account is being used as an official government account or a personal account. Given that he transacts government business (official announcements, etc.) using the account, I don't even think that is a very close question.

    But Trump and his supporters don't really seem to mind that he routinely mixes official and personal business. Where have the concerns about an Imperial Presidency gone?

  • damikesc||

    And they do have that. Email works. Mail works.

  • Joe_dallas||

    It would seem that the court expanded 1A from right to free speech and the press to include the right to use someone else's press for free.

  • NToJ||

    I'm not sure this analysis makes sense. The government should not be able to bypass the 1A just because they voluntarily choose to use a private server or service to communicate with the public. If a government leases convention center space, do you think the government should be able to viewpoint discriminate just because the property is privately owned?

  • mad_kalak||

    Would this court have come to a similar conclusion about 1st Amendment rights if this was Prager U.'s suit against Google for Google's de-platforming of conservative videos on YouTube?

  • Eugene Volokh||

    Why would it? Google is pretty clearly not a government actor -- the President often is (though there is some question about whether he is here).

  • caseym54||

    You don't have to be a government actor for a conversation to become a "public forum", and there are plenty of rulings that protect public gathering places, even on private property such as marketplaces, at least at the state level.

  • NToJ||

    This doesn't matter. Even if it is a public forum, the 1A doesn't prohibit a private actor from doing anything.

  • mad_kalak||

    My mistake I suppose was thinking that technicalities don't matter when ideology is on the line.

    But (with seriousness) if Twitter is a "designated public forum," isn't YouTube? And if YouTube is a designated public platform, do they have the right to restrict or demonetize under the 1st Amendment? In a recent ruling that the judge said Prager failed to state a case on either First Amendment or copyright-law grounds.

  • DKWalser||

    Even if we are to consider YouTube a 'public forum', the 1st Amendment only restricts governmental actors, not non-governmental actors like Google. So, even in your hypothetical, no, designating YouTube a public forum wouldn't make a difference in the battle between Prager University and Google -- at least not based on 1st Amendment protections.

    If Prager U is to win, it will have to be for breach of contract or for violation of a state or federal statute. It won't be because Google violated Prager U's 1st Amendment rights. It's not even possible for Google to do that.

  • Careless||

    So Trump could tell twitter "these people annoy me" and twitter could block them from his account and that's fine?

  • DKWalser||

    It depends. If the court were to view Twitter as acting as a government agent, then, no, it could not block them on Trump's behalf. If the court were to view Twitter as acting on its own -- even it it were acting to try to curry favor with Trump -- then, I would think, yes, Twitter could block them on Trump's behalf. The question is whether Twitter is properly seen as a government actor.

  • IReadAboutStuff||

    Is a Pruneyard Shopping Center v. Robins-type argument going to get traction against social media giants?

  • David Nieporent||

    Is a Pruneyard Shopping Center v. Robins-type argument going to get traction against social media giants?

    Well, it can't, because that was a state constitutional issue, and that has to yield to § 230. (Besides, Pruneyard was wrong.) Marsh v. Alabama is the argument you're looking for, I think.

  • IReadAboutStuff||

    Yes, Marsh reasoning also would advance this idea (not that I'm advocating for it).

    However, has 47 U.S.C. § 230 specifically been held to prevent state constitution claims? I see nothing published on point.

  • khm001||

    "Google is pretty clearly not a government actor"

    Neither is twitter.

  • David Nieporent||

    Neither is twitter.

    And this case wasn't about Twitter's actions. It was about the president's.

  • Caphon||

    The opinion is limited to public officials.

  • Brian Whittle||

    Prager U are anti-science fuck them.

  • Careless||

    Yes, that's how we determine law. "I don't like them. Fuck them"

  • Bob from Ohio||

    That is how the judge here determined it.

  • fgsll||

    Of course not. It seems quite obviously that this court would find SOME reason to vote against PragerU. No matter that they would be contradicting themselves. Persons of a certain mindset holding two completely contradictory thoughts in their head at the same time.
    Does this mean conservatives can not block Progressives on Facebook too?

  • M.L.||

    What happens when Twitter removes comments or blocks users from this designated public forum based on viewpoint? They're not the government, of course, but it seems to me you have the same end result of viewpoint discrimination in a public forum.

    Might a state actor, with a wink and a nod, enjoy the perceived benefit of favorable viewpoint discrimination in an ostensibly public forum, while avoiding any 1st amendment problems, if only the censorship is carried out independently by a private third party?

  • Chem_Geek||

    Precisely. Now Twitter cannot suspend or shadow-ban based on conservative statements.

  • MonitorsMost||

    If a private individual acts on behalf of the state, the. They become a state actor for the purposes of constitutional analysis. So wink and a nod would be unconstitutional. Twitter doing what it wants because it's twitter is constitutional.

  • caseym54||

    Not in the state of California. Ask any shopping center owner.

  • M.L.||

    I'm afraid this doesn't illuminate very much. Would campaign donations be evidence of a wink and a nod? Lobbying? Cross-pollinated personnel and evident shared political agendas? How about when Google CEO Eric Schmidt founded Hillary Clinton's election campaign tech firm "The Groundwork" ? Or the remarkably close relationship with the Obama WH?

  • Grumbler||

    I have this image of Hillary straining facial and neck muscles.

  • M.L.||

    What if the comments are #FakeNews, or worse yet, made by Russians?

    The decision seems to present an obstacle for those who championed it, but who have also assured us that a couple of laughably bad Russian internet memes are among the gravest threats ever posed to democracy, and who have determined that all #FakeNews must be removed from social media and the internet by some ministry of truth.

  • J555||

    Which means in practice that Twitter will continue to ban conservative critics of liberal politicians, but that conservative politicians on Twitter cannot block liberal critics. Correct?

  • aluchko||

    It's completely irrelevant.

    This is about the President's ability to exclude people from speaking in a public forum, not the blocking policies of a private company.

  • J555||

    You don't seem to have any understanding of the issues.here. Trump is not preventing anybody from "speaking on a public forum". Trump has no power to prevent you from posting whatever you like on Twitter. The 'blocking' function does not grant Trump the power to silence you.

  • David Bremer||

    You don't seem to have an understanding of the issues. The claim isn't that he's blocking them from Twitter. The claim is that he is blocking them from adding comments to the chain of replies at the end of his message.

  • caseym54||

    But Twitter itself is NOT content neutral, and has been willing to shut down public figures due to viewpoint. This ruing would also indicate TWITTER cannot do that, at least with respect to public figures (lest some public speakers be protected from annoyances on the basis of Twitter liking them more). At which point we find that government can maybe impose 1st Amendment rules on Twitter.

  • Caphon||

    well this gets at that public forum question, right? Twitter's a private actor so can filter content as they see fit. What if Twitter was blocking people from replying to Trump's tweets? For instance, if the President were a Democrat and Twitter took it upon themselves to block users critical of that President's tweets - and this scenario is obviously not far-fetched - are they allowed to do so? And if they are able to do so on behalf of a political viewpoint (on behalf of the President), why can't the President do it directly?

  • BadLib||

    Knowing that Twitter blocks conservative viewpoints (if true), it would seem a Democratic President would be unable to post to a Twitter account in her official capacity because she would know that the platform imposes restrictions on comments that are not content neutral and not viewpoint neutral.

    Indeed, I don't think the ideology of the President matters - if comments by right-wingers agreeing with a right-wing President were blocked by Twitter's algorithms due to their content and the President was aware of this, even a right-winger President seemingly couldn't post in their official capacity and let everyone (attempt to) comment on their tweets. People agreeing with the President have the same First Amendment rights as those disagreeing.

    Suppose the Federal government leased a venue to use as a public forum on abortion _knowing_ that the owner (the Catholic church) will religiously remove all posters on the walls that are pro-choice but let the pro-life ones remain. Surely the government can't take refuge in the fact that the actual censorship is being done by a third party at their own initiative.

  • Gospace||

    Carrying the (il)logic of the ruling, Twitter can't ban

  • Gospace||

    Carrying the (il)logic of the ruling, Twitter can't ban

  • Larvell Blanks||

    Trump doesn't write Twitter's code — all he does is put his thumb on some words that say "block user" (or whatever). Twitter is the one that then keeps the person from posting. Twitter is the one that creates the rules about who can say what on its own platform, and enforces those rules regardless of whether the speaker is a politician or a private citizen. It seems absurd to say that Twitter is a "public" forum, since it is not controlled by anyone in the government. If a president gives a speech in a private park, the park's owner can exclude anyone he wants. And he can enforce the same rules about who gets to come into the park that he enforces when other people are speaking. And a court can't say, "Hey, President, when you speak in the park, you have to tell the owner to let anybody in."

  • aluchko||

    I assume you're going to use that same logic to charge the gun manufacturer with murder every time someone is shot?

    Just because Twitter made the "block user" tool doesn't mean Trump is forced to use it to violate the first amendment.

    Your park analogy is also quite broken since it's the President, not the park's owner, who is making the decision to exclude people based on viewpoint.

  • Larvell Blanks||

    Wait, you're talking about murder and you say MY analogy doesn't work?

  • aluchko||

    Yes.

    Your argument is basically "Twitter is responsible for the action because Twitter created the tool".

    That's logic would lead to charging gun manufacturers with murder.

  • mepton||

    I completely agree.

    However, there are plenty who will say that no, the park's owner can't exclude just anyone he wants, that his rights to his property are trumped by the 1st Amendment concerns.

    I wish people didn't go down that road, but they do.

  • damikesc||

    Good to see attention whoring is now a Constitutional right.

    The judge, to be gentle, is an imbecile.

  • Cloudbuster||

    Me emanate your penumbra long time!

  • fgsll||

    It is a shame that I cannot indicate my complete agreement that the 'judge' is an idiot without adding a comment. Why isn't there a simple 'thumbs up' indicator in addition to 'reply to this' and 'report spam'?

  • Citizen Jeff||

    I share your concern, but are you sure the judge ruled that Trump couldn't limit the number of posts from the same account holder? Or are you thinking of some other way to measure attention-whoring?

  • Gospace||

    Didn't publish my whole comment- and I can't find an edit or delete button. Is there one?

  • mad_kalak||

    Naw, that's the downside of Reason's system. Personally, I like it because I hate Disqus keeping track of you across platforms and the way people edit their comments. Reporting it as spam doesn't work either. I've seen mods (thanks!) delete double posts (which seem to happen often for some reason).

  • BadLib||

    I think one reason that you see so much editing on Disqus is because of the lack of a preview button. I know I edit quite a few of my comments because of formatting issues (such as using the wrong formatting tag or failing to close it properly).

  • MikeP2||

    I think the court opinion is flawed, as the Twitter feed of Trump is provided as a forum on a private space, not a free public forum. Denying the right to block, amounts to forcing an account holder to openly provide the forum without limitation. in no other venue is this the case. The plaintiffs never lost the option to view or comment. No speech was restricted....just the location of the speech.

    If the Potus held a public q and a session with questions provided beforehand, is it then unconstitutional to limit them? This ruling would imply that it is.

  • OldCurmudgeon||

    >a forum on a private space,

    As an analogy, suppose the President chooses to give a major policy speech at a private event (e.g., CPAC). Can that event hand out tickets in a view point discriminatory manner?

    Note, like Twitter, shouting/jearing at that event would certainly be "a valuable means for the repliers to speak to fellow members of the public." Also like Twitter, other means of expressing your message are available, but being forced to use them would "delay their ability to respond." Particularly, if the relevant standard includes "de minimis harms."

  • damikesc||

    I'll note the former President locked reporters in bathrooms. That's cool, apparently.

    Blocking on Twitter? Constitutional crisis.

  • tkamenick||

    "a major policy speech at a private event " - not a public forum of any kind, which is where the analogy breaks down.

  • redbanzai||

    "the President remains free, for instance, to use Twitter's "mute" function, which would keep him from seeing the user's replies when he reviews his own feed."

    The President remains free to continue on as he has on Twitter because a) the judge had no power to order him to change his blocking policy and b) the judge declined to enter any orders to put her ruling into effect... probably because of a).

  • J555||

    Si if I have the constitutional right to say critical things to political figures on Twitter, shouldn't it be against the law for that right to be infringed? By anybody?

    The judge here went to great pains to craft her ruling in such a way that "political figures" (effectively, Trump) may not block critics, but Twitter itself may continue to do so. And Twitter has a well established history of viewpoint discrimination against people on the right. So how does Twitter have the right ban people for saying critical things about e.g. Nancy Pelosi? That certainly sounds like an infringement on peoples right to "petition their government'.

    Let's be honest here ... the sort of people who get blocked on Twitter are not 'petitioning government'. They're posting crude and defamatory insults.

  • ThePublius||

    This is a terrible decision, for many reasons. The hecklers have won. The court says that Trump can't exclude people who's aim it is to disrupt his freedom of speech. Many twitter Trump critics are no different than those who prevent speakers from speaking by protesting disruptively.

  • BadLib||

    It seems there's a fairly easy remedy available to Trump.

    First, pay for someone to manage his account from personal or party funds (or use volunteers) instead of using Federal employees to do so. Second, never post an official action or decision (something that is obviously part of his official duties) before it's announced publicly by some other means (such as a press release) -- simultaneous release via Twitter and a press release would seem fine. Third, include a disclaimer that this Twitter account is Trump's private personal account and postings or comment restrictions reflect that.

    Outside of requiring some discipline on Trump's part (which may be expecting a lot), at very low cost it seems this ruling would no longer apply to the "new reformed" @RealDonaldTrump account.

  • Citizen Jeff||

    I don't think the judge ruled it would be unconstitutional to ban EXCESSIVE heckling. I think it would have to be measured by the number of posts from the same account holder, not by what = heckling. The latter would be viewpoint discrimination. But I think Trump could set a limit on the number of replies allowed, and then block anyone who exceeds the limit. Something like that.

  • ThePublius||

    There's a guy who was blocked, who may have been a party to the suit, I'm not sure; but I heard him interviewed on NPR a few months ago. What he did was set up an alert of some kind so he would know immediately when Trump tweeted anything; it would even wake him up if he was sleeping. He would then reply, countering what Trump said, regardless of what it was. His goal was to be among the first replies so the maximum number of followers would notice his reply. I don't see anything wrong with blocking such a persistent, serial harasser, one who's only purpose was to counter or disrupt, regardless of the message.

  • mepton||

    This is just another example of how the legal system has strayed from the path in trying to deal with computer issues, particularly in putting way too much into accepting as literal some barely applicable analogies.

    When referring to the virtual space provided by Twitter they lose sight of what's actually going on. There is no virtual space; there is only a service. Twitter provides a service, not a virtual space, and Trump and his critics subscribe to the service offered by Twitter.

    They do not enter any space; they do not command a presence there. Instead, Twitter accepts content and distributes it by following certain rules.

    The critics here aren't losing any right; instead they're facing a service they're subscribed to not performing the way they'd prefer. Talking about virtual spaces turns the factual situation on its head.

  • Beldar||

    It's Twitter-dot-com, after all, not Twitter-dot-gov. And yes, that has constitutional implications that I think this judge has missed. Twitter is not a public square or park created and owned by the government; its virtual space continues to be owned, and therefore controlled ultimately, by Twitter.

    As the court concedes, "for a space to be susceptible to forum analysis, it must be owned or controlled by the government." To get to that conclusion with respect to Trump's Twitter account, the court has to distinguish between ownership and control of the total account, including its tweeting privileges, and some subset of the account's features, which it does thusly:

    Because the access [the plaintiffs] seek is far narrower, we consider whether forum doctrine can be appropriately applied to several aspects of the @realDonaldTrump account rather than the account as a whole: the content of the tweets sent, the timeline comprised of those tweets, the comment threads initiated by each of those tweets, and the "interactive space" associated with each tweet in which other users may directly interact with the content of the tweets by, for example, replying to, retweeting, or liking the tweet.

    [Comment continues in reply below:]

  • Beldar||

    Then after carving off that aspect of the account privileges, the court finds that there's enough "ownership" inherent in Trump's and Dan Scavino's practical ability to control that "interactive space":

    Here, the government-control prong of the analysis is met. Though Twitter is a private (though publicly traded) company that is not government-owned, the President and Scavino nonetheless exercise control over various aspects of the @realDonaldTrump account: they control the content of the tweets that are sent from the account and they hold the ability to prevent, through blocking, other Twitter users, including the individual plaintiffs here, from accessing the @realDonaldTrump timeline (while logged into the blocked account) and from participating in the interactive space associated with the tweets sent by the @realDonaldTrump account, Stip. ¶¶ 12, 28-32, 39, 54. Though Twitter also maintains control over the @realDonaldTrump account (and all other Twitter accounts), we nonetheless conclude that the extent to which the President and Scavino can, and do, exercise control over aspects of the @realDonaldTrump account are sufficient to establish the government-control element as to the content of the tweets sent by the @realDonaldTrump account, the timeline compiling those tweets, and the interactive space associated with each of those tweets.

    [Comment continues in reply below:]

  • Beldar||

    While their control does not extend to the content of a retweet or reply when made — "[n]o other Twitter user can alter the content of any retweet or reply, either before or after it is posted" and a user "cannot prescreen tweets, replies, likes, or mentions that reference their tweets or accounts," Stip. ¶ 26 — it nonetheless extends to controlling who has the power to retweet or reply in the first instance.

    I think this is where the opinion is vulnerable to attack on appeal. I think that to reach this conclusion, the district judge has essentially ignored the practical power that Twitter itself has, through its terms & conditions of usage and end-user license agreements that are enforceable in civil law, to reassert control — including content-based control — over this specific forum. And I think that the underlying contract-based control over the content published by anyone, including the POTUS or these plaintiffs, is inconsistent with even this particular aspect of a Twitter account being considered a "designated public forum" owned or controlled by the government.

    [Comment continues in reply below:]

  • Beldar||

    Regardless of this opinion and its real-world impact if any, though, I maintain: Twitter delenda est. It is a spreading rot, a heckler's medium, and a constant encouragement to the abandonment of good judgment and decency. I do not propose that the government shut it down; that would be unconstitutional. I continue to propose, instead, that people who value decency and robust communication avoid it like the plague.

  • M.L.||

    Good analysis. But I would add that Twitter does not merely have power to assert control over this forum, they actively exercise this power with every single interaction.

    Twitter decides which 3, or 4, or 50 comments will ever see the light of day within the specific forum of a reply thread, out of the total 20k, 40k, 100k or whatever comments. A very tiny percentage.

  • DKWalser||

    Beldar -- Thank you for that very perceptive insight. In essence, the Court held that each time Trump sends out a Tweet, he is creating a designated public forum for the public to reply to his comments within his Twitter feed. The Court further held that this forum was government controlled because Trump retained the ability to determine who could participate in the forum by choosing whether or not to block individual members of the public from posting to his Twitter feed.

    It is this retained power to block someone from posting to his Twitter feed that causes these 'reply forums' to be covered by the 1st Amendment. Absent this retained power to block, the forums would not be controlled by government and 1st Amendment protections would not apply -- because, as you pointed out, the 1st Amendment only applies to forums owned or controlled by the government.

    Isn't the Court's ruling self-defeating? Once Trump is ordered to not block anyone from replying to his Twitter feed, the forum is no longer government controlled and the 1st Amendment no longer applies!

  • Beldar||

    @ DKWalser: That's very interesting!

    It would be very hard for this judge to distinguish the comments here from the sort of "designated public forum" in which the government is forbidden to make content-based regulation, to the extent that Trump ever decided to post comments here. Under her theory, a sort of cloud of "designated public forum-ness" must float around the POTUS wherever he or she walks, talks, speaks, or tweets. You can always subdivide the "forum" down to the "Comment" field on this blog, right? And within this comment field, Trump would have the practical ability to prevent anyone else from putting up their competing First Amendment content, therefore it must be a government owned or -controlled forum!

    Twitter — which by the way wasn't even a party to this litigation! — could decide tomorrow that Trump has violated its terms and conditions of use or its end-user license agreements, all of which give it contractual power to exclude users on an essentially arbitrary basis that can, and frequently does, include the political content of the users' communications. And it could, with a keystroke, abolish entirely this "designated public forum."

    That alone is inconsistent with, and fatal to, the notion that even some subset of Trump's Twitter account is a "designated public forum" that's owned or otherwise adequately controlled by the government.

  • Beldar||

    From the Twitter Terms of Service Agreement (emphasis mine):

    You retain your rights to any Content you submit, post or display on or through the Services. What's yours is yours — you own your Content (and your incorporated audio, photos and videos are considered part of the Content).

    By submitting, posting or displaying Content on or through the Services, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed). This license authorizes us to make your Content available to the rest of the world and to let others do the same. ...

    Twitter has an evolving set of rules for how ecosystem partners can interact with your Content on the Services. These rules exist to enable an open ecosystem with your rights in mind. You understand that we may modify or adapt your Content as it is distributed, syndicated, published, or broadcast by us and our partners and/or make changes to your Content in order to adapt the Content to different media.

    This seems inconsistent to me with any claim that Trump, or the government through him, "owns or controls" anything but the text of Trump's Tweets.

  • theobromophile||

    Good point: the reasoning is rather circular.

  • OldCurmudgeon||

    "but "the First Amendment recognizes, and protects against, even de minimis harms.""

    Is that really true? I thought amble alternative channels was a 1st A defense. And, more generally, courts don't act on de minimis harms.

  • Eugene Volokh||

    Content-neutral restrictions are often permissible if they leave open ample alternative channels, i.e., if they impose only a minor burden on speech. But that doctrine generally doesn't apply as to content-based restrictions (in traditional public fora, or when the government is restricting speech on private property), or as to viewpoint-based restrictions in designated or limited public fora.

  • Whorton||

    So, if the President can't block someone on social media, then it follows that no other individual who uses the same service, even if for a single political point, MAY NOT block anyone either.

  • Rev. Arthur L. Kirkland||

    then it follows that no other individual who uses the same service, even if for a single political point, MAY NOT block anyone either

    It appears the mothers of all right-wing cranks used the same discount homeschooling outline.

  • TwelveInchPianist||

    Is that the one that teaches that there's no distinction between freedom of expression at public universities and private religious schools?

  • Rev. Arthur L. Kirkland||

    Right-wingers are free to censor, suppress science, and teach nonsense on private campuses they control.

    Their betters are free to call them on it.

    People who care about free speech are free to assert that cloaking censorship with superstition does not improve authoritarian repression of expression.

    Others are free to contend that religion-based nonsense and censorship are better than other nonsense and censorship.

    Polemical right-wing blogs with a thin legal veneer (thing Trump-finger thin) are free to nip at the ankles of strong schools while ignoring the censorship at conservatives' snowflake-coddling goober factories.

    Others are free to call them on it.

    This should not be so difficult to understand.

  • Caphon||

    The opinion was not limited to the President, but was limited to public officials.

  • jdgalt1||

    That is, the President presents the @realDonaldTrump account as being a presidential account as opposed to a personal account and, more importantly, uses the account to take actions that can be taken only by the President as President.

    This part of the decision is blatantly false-to-fact. The president does not and cannot appoint an official, sign or veto a bill, a treaty, or even issue an executive order by tweeting, and that's all of his official functions. So Twitter remains its investors' private forum, and this ruling should be overturned.

  • Sarcastr0||

    The President has in fact made policy via tweet. DoD famously heard about the transgender ban via tweet, and started working to implement it without anything official coming to them.

  • Tearfang||

    There is a difference between announcing policy and making policy. Executive orders must be signed not tweeted etc.

  • Sarcastr0||

    Sure, but the President can order agencies without an EO. This is what happened with the DoD - there was no EO.
    It is also what happened with the DoJ and opening an IG investigation. Twice.

  • David Nieporent||

    The president does not and cannot appoint an official, sign or veto a bill, a treaty, or even issue an executive order by tweeting,

    I don't know what makes you think that any of these things are true.

  • MonitorsMost||

    Based on this logic, Trump could never be acting in an official capacity by speaking. That's not correct. When Trump is speaking with foreign leaders, he is doing so in his official capacity.

    You are correct that the line between what actions are taken in an official capacity as opposed to in an individual campaigning/advocacy capacity is not a bright line.

  • BT||

    Could a court require @realdonaldtrump to respond to all comments on his tweets? Is @realdonaldtrump an official component of the federal government? This lawsuit is nonsense and the court's ruling as much or worse. Trump aside, there are plenty of sources to obtain @realdonaldtrump tweets. Perhaps this judge could ask for a transfer to the immigration courts where they need help on real problems.

  • RPGuy16||

    This is going to be another one of those court decisions that somehow only applies to Trump. Other politicians will go on being able to block whomever they want.

  • Sarcastr0||

    Ain't no double standards like speculative predictive double standards!

  • Chem_Geek||

    Do you [i]really[/i] doubt the existence of TrumpLaw? Virtually [b]every[/b] decision from now until early 2025 (God willing!) will not apply to any subsequent Democrat party Presidents. And the opinions will say, "Because reasons. So ordered."

  • Sarcastr0||

    Yes, I really do doubt it.

    Unless you have a time machine, your certainty about how venal future legal rulings are sure to be is just fan fiction based on nothing but your feelings.

  • RPGuy16||

    Speculative? This very article cites a case decided on March 30 involving a different politician that came out exactly the opposite way.

  • Andrew Hyman||

    At first glance, this seems like a silly ruling, though I could be wrong. For starters, there is a freedom of assembly in the First Amendment too, which of course should not be construed as giving anyone a right to crash the assembly of one's opponents. And likewise every petitition for redress of grievances need not include opposing views.

    Moreover, Trump does not seem to be using any governmental power here. It's a power that Twitter chooses to give every user. If Twitter wants to take this power away from Trump, then no one disputes that Twitter can lawfully do so at any time, because it's a private company operating private property.

    This reminds me of the phenomenon in TV news reporting when cameras show up. People often use that opportunity to demonstrate or behave very differently from how they do before and after the cameras appear. And that's perfectly fine on public property, but not on private property if the owner forbids it. I don't see a First Amendment right to parasitic publicity, nor a federal power to regulate content within private channels of communication.

  • Kristian H.||

    Can twitter prevent people, like Stacy McCain or other from having accounts so they can participate in the public forum, especially since they are being blocked via viewpoint discrimination?

    Can a state office holder block non-residents?

    How does a change in job change a forum from one with privacy rights to one with no privacy rights?

  • Kristian H.||

    Does this mean twitter must change it'ts blocking features?

    Also, last I checked, twitter was .com not .gov.

  • Joe_JP||

    Trump acting is the issue ... or some other government official.

    Other people can block without a problem.

  • Kristian H.||

    Does this mean twitter must change it'ts blocking features?

    Also, last I checked, twitter was .com not .gov.

  • GamerFromJump||

    So, they'll be putting on the boots against wannabe silencers in campuses, then?

  • Alan Beck||

    I disagree with the part of the opinion where she says the government can mute you. Part of the first amendment is the right to shout down government officials. As I see it this is not different than telling all the protesters of one political party they have to leave while letting the other protesters stay. If the President is giving a speech part of the civic involvement is the right to shout him down so he knows that you are displeased assuming the speech is being held in a public place.

  • Alan Beck||

    sorry I mean to say shout him down to drown out his speech and the speech of his followers. The same should apply to twitter. You have a right to drown out the positive comments about someone. The government does not need to read it but you have a right to make it hard for the government to read the positive comments. If the government does not want to read any of the comments because of that then so be it.

  • David Nieporent||

    Neither your understanding of Twitter's mute function nor your understanding of the first amendment is correct.

  • Alan Beck||

    I don't have a twitter so you might have a point there. I am a little unclear as to why I don't understand the First Amendment. Do you disagree with the statement that the First Amendment protects a right to heckle and otherwise shout down government officials?

  • IReadAboutStuff||

    So, are social media giants subject to a Pruneyard Shopping Center v. Robins-type argument in the future?

  • Tearfang||

    It seems that if the 1st amendment applies to replies to Trump's tweets then they prohibit Twitter exercising control over the content as much as Trump, or perhaps more than Trump since the argument included Trump actually having control of the account, which means that the ordering or the tweets must be examined for 1st amendment compliance as well as Twitter level institutional block, bans and shadow-bans.

  • ||

    Trump should simply start ignoring the judiciary. Do what Andrew Jackson did and say "Let them enforce it."

  • Tionico||

    the Constitution, Art 3 Sec 2 Par 2 says he SHOULD. He is a "minister of the public trust", thus ONLY the Supreme Court can take up any matter where he is named as a party in the action as the President.

    He SHOULD have thrown that in the faces of those two bit local Fed judges who "ruled" on his entry EO's Stood on national TeeVee, read that part of the Constitution, and said THIS is to be upheld, per my oath of office. Let SCOTUS examine the evidence and render an oipinion. Untilthen, my EO stands and WILL be enforced.
    Same with this one.

  • ||

    Same goes for the EO reversing DACA. The judges are acting in a lawless manner, and shouldn't be allowed to get away with it.

  • theobromophile||

    The logical effects of this will result in all sorts of asinine litigation. Politicians have an interest in monitoring their Facebook pages for profanity, insults, off-topic commentary, etc.,; now deleting people's crummy comments will be a First Amendment violation - or the offended would-be commenter will claim it as such, essentially leaving it to the politician to prove that it was done in a viewpoint-neutral or content-neutral manner. Faced with that, many will simply decide that communicating in a way that enables most people to respond is not worth the effort.

    The other factor is that politicians may not view this as a "traditional public forum," so much as a means of communicating *to* people (with their communication to the politician being a mere side effect), somewhat like a town hall or a rally. They likely use the platforms because they are popular and many people can see what is on them without signing up; the reply feature may be merely tolerated. (As far as I know, you cannot set FB or twitter posts such that no one can reply.) The alternative is not some utopia of free exchange of ideas; it's for the politician to decide that they will not use those platforms to communicate.

  • ||

    Just like the result of "desegregation" is white flight. Liberal ideas never work in practice, because they run contrary to human nature.

  • Chem_Geek||

    [i]As far as I know, you cannot set FB or twitter posts such that no one can reply.[/i]

    I know that on FB groups, an Admin can set a post to no comments allowed.

  • Sarcastr0||

    I don't think this is some slippery slope towards floodgates of litigation.

    Despite the partisan passion some are bringing, I love this topic because (at least for now) it's just good, clean, legal geekery fun - it's a law school hypothetical come to life!

  • Carey J||

    Can the President simply shut the public comment section and send a tweet along the lines of, "Judge rules I must let enemies address audience I drew. Not happening. Comments are closed. This is why we can't have nice things."

  • Tionico||

    READ ARticle 3 Section 2 paragraph 2... ALL matters involving "ministers of the public trust", which would certainly include a sitting president, can ONLY be taken up by the Supreme COurt, and then only on original jurisdiction.

    This suit is against Donald Trump s president, certainly a "minister of the public trust". therefore the two bit local fed level court cannot take the matter up.
    Only SCOTUS can.

    As to the matter of blocking a user such that other users are unable to see their replies, I suppose it should come down to HOW they are "disagreeing". If they're just saying things lie "that's stupid" or "he's wrong", "he's a racist becuase of ______", block them. However, if there are legitimate responses to specifics, suggestions to do it diffferently, or other valid contributions to a free and open discussions on the issues raised, perhaps these SHOULD be allowed.

    In any case, the loca Fed court CANNOT be allowed to rule in any binding way on this, as they have no jurisdiction. Nor did that judge Robart in Seattle when he "ruled" on the EO on entry.

  • David Nieporent||

    READ ARticle 3 Section 2 paragraph 2... ALL matters involving "ministers of the public trust", which would certainly include a sitting president, can ONLY be taken up by the Supreme COurt, and then only on original jurisdiction.

    The phrase in quotes is, uh, something you made up. It does not appear in the constitution.

  • posmoo||

    The original sin was the fiction that any private property is a public forum.

  • Sarcastr0||

    Which would either forbid the government from ever renting private property, or allow the government to circumvent the First Amendment by holding events on private property.

  • posmoo||

    The government holds events on public property all the time where citizens aren't invited to come and vent their support/criticism and it's not an infringement of your first amendment rights. When FDR gave fireside chats was your grandpappy excluded from walking in and chiming in?

  • apedad||

    This is easy.

    If Pres. Trump was using his social media for solely for personal purposes (including re-election), then he can take any action he wants to.

    If he uses it for govt purposes, then he cannot block people.

    Since it appears that he uses it for BOTH personal AND govt purposes (not a smart idea BTW), then the govt usage means he CANNOT block people.

    Simple.

  • ||

    How is he using it for government purposes?

  • Hugh||

    No doubt Trump's overruled blocking of twitter accounts will be seen as abother impeachable offence.

  • Sarcastr0||

    More speculative double standards!

    Will the unfair victimization of Trump in the imaginations of these posters ever stop?!

  • Voyager||

    If the Presidential twitter feed is a public space, would it not follow that regardless of who is performing the blocking, that it would be an unconstitutional prohibition on the posters 1st amendment rights? And, if that holds, would that not also imply that the Twitter shadow banning and arbitrary account suspension processes are also stripping people of their ability to speak in that space, often in a far more insidious way than merely blocking them?

    It just seems like saying that that area is a public forum, yet Twitter as a whole is not is the equivalent to saying you have a free speech zone, that only certain people are allowed to enter.

  • Jim Johnson||

    Exactly. This would be like the government leasing a parcel of land in the middle of a privately owned lot, for public forum purposes, debates, voting, etc. And then when a black person shows up to vote or engage in the town hall debate, the land owner says, "Sorry, I don't allow blacks on my property." Or when somebody shows up in a Bernie shirt, "Sorry, no liberals allowed on my property."
    Twitter owns Twitter. It bans people for purely speech reasons. How is it possible for the government to create a public forum, which means everybody has a fundamental right to access it, in the middle of a privately controlled property that nobody has a right to access? Where forms of discrimination that would unconstitutional if being used by the government, are perfectly acceptable to prevent you from accessing the government public forum?

  • David Nieporent||

    How is it possible for the government to create a public forum, which means everybody has a fundamental right to access it,

    There's your error. What it means is that the government can't ban people (for viewpoint based reasons, I mean), which is something entirely different.

  • Jim Johnson||

    Huh?
    The court is saying Trump's Twitter comment section is now a designated public forum. It's the equivalent of a street corner where everybody has a fundamental right to come stand on it and yell and hold signs. Any preventing of that must be for some non-speech purpose (although I can't really think of a constitutionally justified purpose of preventing someone from standing on a street corner that wouldn't involve prison or arrest arrest).
    But the government has "leased" (to borrow the Court's analogy) this street corner in the middle of private property that DOES ban people for speech reasons. You're saying it would be perfectly constitutional for the government to lease a building that did not allow liberals, for purposes of conducing a town hall debate on a tax cut? Sorry liberals, you stand outside while the rest of us engage in our fundamental speech right. And that's okay, because the government isn't the one doing the banning, they just leased the building from someone that is doing the banning.
    "Hey kids, today we are going to go on a field trip. But this particular building doesn't allow blacks, so all the black kids have to stay at school. But that doesn't violate the 14th Amendment, because we aren't the one actually doing the discriminating."

  • Rossami||

    I came to the same answer - conclusions 1 and 3 are reasonable but conclusion 2 is suspect. It seems to me that a very trivial set of differences in circumstances would have lead to a vastly different legal conclusion - and that seems like an indicator that the underlying theories might be wrong.

    As a policy matter, I think the court might be setting up a standard that is infeasible to meet. We do not and should not expect government officials to give up all rights to privacy or autonomy.

  • Bob from Ohio||

    Partisan government lifer makes another ButTrump ruling. Yawn.

  • Bob from Ohio||

    On the "merits" [such as they are], the idea that random "Twitters users' right to use the reply function to communicate to fellow members of the public" is impacted in any meaningful way is ludicrous.

    No one, not even friends and family, except the comment/reply poster cares to read "You suck" and "Drumpf" responses that no doubt litter the Trump twitter feed.

    No "fellow member of the public" pays any attention whatsoever to the primal rage replies.

  • Amy Peikoff||

    Thanks for this, Eugene. For me the difference that made the difference was the fact that the "block" prevents a reply tweet from being viewed in the reply thread, along with everyone else's. True, there's a minuscule chance of your reply tweet ever being viewed in that thread. But a President, acting as President, shouldn't act so as to reduce that chance to zero--particularly when he admits doing so because you've criticized him!

  • Scott K.||

    I have a hard time wrapping my head around the court's contention that the forum for Twitter replies is "government controlled." Yes, the White House has some control over the content via the blocking function, but that control is exercised on private property (Twitter's servers) and it is Twitter that ultimately has all authority over the activities on its site. If the POTUS were to give a speech in a private house, could he deny a citizen a right to openly criticize him by asking the citizen to leave or go to another room? I would think that the answer would be yes.

  • nonzenze||

    If the homeowner had a sign in front that says "everyone is welcome" then it ceases to be a private house and becomes a forum that's accessible to the public.

  • WoodChipperBob||

    But Twitter *doesn't* have a sign in front that says "everyone is welcome" - they specifically do block people for content-related reasons.

  • Alpheus W Drinkwater||

    My understanding is that government cannot launder unconstitutional actions through non-governmental actors. President Trump through his actions has made his Twitter account a public forum, and thus constitutional restrictions apply, regardless of the fact that Twitter is a non-governmental entity. Just as President Trump and/or Congress couldn't tell the NFL "Require players to stand during the national anthem or lose your antitrust exemption."

  • aaronshem||

    What about figures at public academic institutions who mostly serve a PR, fundraising, and grant proposal writing role, like Michael E. Mann?

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