Trump, Twitter, and the First Amendment
Social media plays an ever-increasing role in politics, in the U.S. and around the world. However, the Trump White House has elevated Twitter communications to a status few could have imagined just a few years ago. Trump has used the social network to share his positions on various issues, complain about judges and legislators, and even threaten the leaders of foreign nations.
If there was any question as to the significance of those communications, the White House cleared that up for us last summer, when then-press-secretary Sean Spicer stated that Trump’s tweets should be interpreted as “official statements by the President of the United States.” In fact, multiple courts have referenced Trump’s tweets, in rulings on issues including the travel ban, discontinuation of the DACA program, and blocking the enlistment of transgender Americans in the U.S. military. Foreign heads of state have responded to or taken action based on tweets from Trump’s account.
Does blocking someone on Twitter violate the U.S. Constitution? A lawsuit filed last summer by the Knight First Amendment Institute at Columbia University and seven people who have been blocked by Trump or his staffers argues that the President’s account, used by Trump and aides for official business, is a public forum.
The First Amendment
In relevant part, the 1st Amendment to the U.S. Constitution reads:
Congress shall make no law…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.
Although the text refers specifically to Congress, the United States Supreme Court has interpreted the 1st Amendment to apply to the whole of the federal government, not just the legislature.
Of course, there are exceptions to the prohibition on abridging freedom of speech. In determining whether limitations on speech are permissible, the Court applies differing standards depending on the type of speech involved. The actions in this case demand rigorous scrutiny because political speech is entitled to the highest level of protection under the Constitution, and content-based limitations are subject to strict scrutiny.
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Trump’s Twitter Account as a Public Forum
The complaint alleges that, although Donald Trump used the Twitter account for several years before ascending to the presidency, it is currently used almost exclusively to communicate with the public about his administration. The pleading goes on to say:
Because of the way he uses the account, President Trump’s tweets have become an important source of news and information about the government, and the comment threads associated with the tweets have become important forums for speech by, to, and about the President.
The President and his staff have made it clear that they consider the President’s Twitter account an official communication channel, and aides participate in management of the account. The complaint characterizes the account as “a kind of digital town hall.” Thus, excluding individuals from that interaction has a different character than a private individual blocking another individual from his or her account. While those blocked from interacting with the President’s account can still view his tweets by logging out of Twitter, and are free to tweet on their own, they are cut off from the public discussion triggered by and surrounding the President’s public statements.
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Blocking of Individual Accounts from @realDonaldTrump
Each of the individual plaintiffs in the lawsuit is a Twitter user who has been blocked from viewing or interacting with tweets from @realDonaldTrump. The decision to block each of these individuals appears to be content-based. For example, plaintiff Rebecca Buckwalter is a writer and legal analyst who actively engaged in comment threads relating to Trump’s tweets. On the morning of June 6, 2017, Ms. Buckwalter responded to a Trump tweet about the election with, “To be fair you didn’t win the WH: Russia won it for you.”
Her reply was favorited and retweeted thousands of times, and shortly thereafter she discovered that Donald Trump or one of the aides assisting in management of the account had blocked her.
The remaining plaintiffs tell similar stories:
- Professor Philip Cohen was blocked approximately 15 minutes after replying to a Trump tweet with a photo of Trump bearing the words, “Corrupt Incompetent Authoritarian. And then there are the policies. Resist.”
- Political organizer Holly Figueroa was blocked on the evening of the day she tweeted a series of replies to @realDonaldTrump’s tweet about the recent British terror attacks. Her responses included a photo of the Pope looking incredulously at Trump, with the notation, “This is pretty much how the whole world sees you.”
- Dr. Eugene Gu was blocked within about two hours of tweeting this reply to the Trump account: “Covfefe: The same guy who doesn’t proofread his Twitter handles the nuclear button.”
- Veteran and police officer Brandon Neely discovered that he’d been blocked the day after tweeting “Congrats and now black lung won’t be covered under #TrumpCare” in response to a Trump announcement about the opening of a new coal mine.
- Author and speaker Joseph Papp found that he had been blocked the day after replying to a Presidential tweet with “Why didn’t you attend your #PittsburghNotParis rally in DC, Sir?”
- Comedian and writer Nick Pappas was blocked on the same day he responded to a Trump tweet about “EXTREME VETTING” with “Trump is right. The government should protect the people. That’s why the courts are protecting us from him.”
The Trump Administration Can End this Case without a Ruling
At a hearing in early March, the presiding judge in the Knight case reportedly urged the parties to settle, suggesting that they might be unhappy with the outcome if they held out for a ruling. The judge suggested that perhaps simply muting Twitter users the President didn’t want to hear from could solve the problem, since Trump could avoid reading messages he didn’t want without cutting users out of the public discourse based on their viewpoints.
If the parties reach a resolution, the court won’t have to rule on the Constitutional question. However, the growing importance of social media in political discourse suggests that the issue is likely to arise again, if a clear rule isn’t articulated in this case.
To learn more about Sujit Choudhry and to read more of his expert constitutional law analysis follow him on Twitter, Facebook, LinkedIn or YouTube.
