Legal Stuff

How to Fight Amazon (before you turn 29)

16 June 2018

From The Atlantic:

Shortly after I met Lina Khan, her cellphone rang. The call was from a representative of a national organization, regarding a speech it had asked her to give. Khan was courteous on the phone, but she winced momentarily after hanging up. “That was the American Bar Association,” she confessed. “I don’t know if I’ve passed the bar yet.”

This feeling—that Khan’s ideas are in high demand slightly before her time—has characterized much of her life lately. In the past year, the 29-year-old legal scholar’s work has been cited approvingly by the lefty, rabble-rousing congressman Keith Ellison and by a Trump-appointed assistant attorney general, Makan Delrahim. She has been interviewed by NPR and written op-eds for The New York Times.

She has done it neither by focusing on a hot-button issue nor by cultivating a telegenic demeanor. She is just a young adult—one of many, I would learn—interested in an old topic: antitrust law, that musty corner of American jurisprudence aimed at curtailing monopoly power.

. . . .

For the past few decades of American life, the specter of monopoly was generally raised only regarding companies that seemed custom-designed to rip off consumers—airlines, cable providers, Big Pharma. These were businesses that pulled from the long-standing monopolist’s bag of tricks: They seemed to keep prices artificially high, or they formed an unspoken cartel with other industry titans. Typically, consumers worried most about how monopolies would pinch their wallet.
For Khan and her colleagues at the Open Markets Institute, an anti-monopoly think tank based in Washington, D.C., monopoly power includes all of that. But it goes further. Even when monopolies appear to benefit consumers by offering free services or low prices, Khan contends that they can still be deeply harmful. Among the group’s frequent targets are some of the most popular companies in America: Google, Facebook, and the one to which Khan has committed much of her published work, Amazon. She tells a comprehensive story about how these companies make Americans less free.. . . .“There’s a whole line of critique about Amazon that’s culture-based, about how they’re wrecking the experience of bookstores,” Khan told me as we surveyed Neil deGrasse Tyson’s latest tome. “I personally am less focused on that element.”

Instead, she argues that Amazon has denuded America’s book-buying landscape in other ways. “Amazon has massively—and I’m trying not to use this particular word, but I can’t not use it here—disrupted the business model in publishing,” she told me. “Publishers used to be able to take risks with heavier books that might not be as popular, and they used to be able to subsidize them with best sellers.” But Amazon’s demand for discounts has made it harder to cross-subsidize this way, leading to consolidation among book publishers and reduced diversity.

This is a typically Khanian analysis. In her telling, monopolies don’t just exploit consumers and workers in their part of the economy. Even when they offer low prices to consumers, their influence propagates through the entire system. If one part of an industry consolidates, then all the other parts of the industry will feel pressure to consolidate too.

. . . .

[I]n January 2017, she published the result of that study, “Amazon’s Antitrust Paradox,” in the Yale Law Journal. It went viral—or at least as viral as dense legal scholarship can go. Its driving question is simple: How did Amazon get so big?

The answers are nearly as straightforward. First, Khan says, Amazon has been willing “to sustain losses and invest aggressively at the expense of profits.” This isn’t a controversial assertion: Amazon has posted an annual profit for only 13 of the past 21 years, according to The New York Times. Historically, it has plowed any profits right back into cheaper prices and R&D into everything from robotics to image recognition. Second, Amazon is integrated vertically, across business lines. In addition to selling stuff online, Amazon now publishes books, extends credit, sells online ads, designs clothes, and produces movies and TV shows. It is also one of the world’s largest providers of cloud storage and computing power, renting server space to Netflix, Adobe, Airbnb, and NASA.

. . . .

[Judge Robert] Bork’s views become interesting in light of Amazon. Bork thought vertical integration was fine: Since he believed markets were perfectly efficient, he assumed that a lower-cost competitor would always butt in and fight off a would-be monopolist. And predatory pricing? It is “a phenomenon that probably does not exist,” he wrote. The Chicago school, he said, had proved that companies would always pursue short-term profits over long-term growth.

Amazon’s history seems to belie this claim. For more than a decade, Wall Street allowed the company to plow any profits into price discounts. Partly as a result, Amazon has grown so large that it can undercut other companies just by announcing that it will soon compete with them. When Amazon purchased Whole Foods, its market cap rose by $15.6 billion—some $2 billion more than it paid for the chain. Meanwhile, the rest of the grocery industry immediately lost $37 billion in market value. (Amazon protests that it has no control over how investors value its competitors.)
When a company has such power, Khan believes, it will almost inevitably wield that power far and wide, distorting not just the market itself, but the whole of American life. With sufficient power, companies can commission studies, rewrite regulations, bulldoze neighborhoods, and impoverish education and welfare systems by securing billions in sweetheart tax cuts. When a company comes to monopolize a market—when it grows so big that it can threaten other industries just by entering them—it ceases to be merely a company. It becomes an institution so powerful that it can rule over people like a government.

Link to the rest at The Atlantic

PG suggests Ms. Kahn, as an “expert” in antitrust law, is remarkably ignorant about American publishers. Publishers are a classic example of a shared monopoly, offering identical royalty rates and nearly identical contract terms to authors and attacking competitors who don’t join the cartel.

Additionally, there is the inconvenient fact that most of the largest American publishers have already plead guilty to conspiring to fix book prices, a classic antitrust violation, in order to keep Amazon from lowering book prices for consumers. Publishers are, by their own admissions, violators of antitrust laws.

It is possible for an organization to violate antitrust laws by lowering prices to drive competitors out of business, then raising prices once it obtains the monopoly power to do so.

However, lowering prices by itself is a benefit to consumers, not a detriment, and speculation that, at some time in the future, Amazon is going to use monopoly power to raise prices is just that, speculation, without any facts to back it up.

“Predatory pricing” is a characteristic of this type of monopoly activity – cutting prices to drive competitors out of business, then raising prices to capture monopoly profits.

When Amazon starts taking advantage of its market position to force unconscionable price increases on consumers, PG will be happy to condemn the company, but amateur mind-readers who claim this is Amazon’s business plan are simply speculating for purposes that likely aren’t connected to the welfare of consumers at all.

Looking into a crystal ball and perceiving an evil Amazon that will be going into the price-gouging business is a bizarre practice that is often funded by Amazon’s competitors who find Amazon’s consistent price-cutting business strategy offensive because Amazon takes sales away from them or disturbs their way of doing business in their particular fiefdoms.

If we are to speculate, let us speculate about the state of the book business had Jeff Bezos started the company selling something other than books online and stayed out of the book business because he didn’t ever want to upset people like the author of the OP. For the purposes of our speculation, we’ll assume no Bezos clone stepped in to do what Bezos has done.

Would readers be purchasing more or fewer books today? Would the price of books be higher or lower today? (remember that Steve Jobs wanted publishers to fix the retail price of ebooks so there would be no price competition) Would authors be earning more or less than they do today? Would there be a wider or a narrower selection of books offered to readers today? Would more or fewer authors be publishing their own books than do that today?

For any Amazonians who happen to stumble across this post, PG suggests that it might be a good idea for Amazon to consider publicizing how much money they pay directly to individual indie authors each year through KDP and similar programs, bypassing the Big Publishing and small publishing middlemen and middlewomen.

Heffel auction house takes to court over barred shipment of French painting

14 June 2018

From The Globe and Mail:

A prominent auction house is arguing in court that the government gatekeepers for exporting art are too sweeping in their definition of what it means for something to be Canadian.

Heffel, which operates auction houses across the country, has asked the Federal Court of Canada to quash a decision by the Canadian Cultural Property Export Review Board that prevented the shipment of a French Impressionist painting last year.

The work, Iris bleus, jardin du Petit Gennevilliers(1892) by Gustave Caillebotte, was sold at a Toronto auction to a British buyer for $678,500.

In its decision, the review board said an object can be of “national importance,” even if it or its creator has no direct connection to Canada.

“Canada is a diverse country with a multitude of cultural traditions,” the decision said. “The loss of an object to Canada could significantly diminish the national heritage if that loss would deny a segment of the population exposure to or study of their cultural traditions or the cultural traditions of other Canadians.”

A private collector brought the Caillebotte canvas to Canada from France in the 1960s and has never exhibited it publicly.

. . . .

“[The law] requires the board to consider the degree of importance or connection to Canada’s heritage – our shared identity as a country – not to world arts or culture generally,” Heffel’s lawyers wrote. They also raised concerns with some of the board’s procedures.

The question of what art is important to Canadian heritage came up last month when the National Gallery of Canada announced it would sell Marc Chagall’s 1929 The Eiffel Tower on the global markets to raise money to purchase a 1779 Jacques-Louis David painting.

The National Gallery said the David, which has been in Canada for more than a century, was important to Canada’s “national heritage” and was at risk of being sold to a foreign buyer. Both Chagall and David are French painters and both works were created overseas. The Eiffel Tower, which came to Canada in 1956, was given an export permit so it could be sold at a Christie’s auction in New York. The National Gallery has since said it will cancel the sale because of public outcry.

Canada’s cultural property export regime was created in the seventies to keep important art or historical artifacts in the country. Export permits are required if the item is more than 50 years old, made by someone no longer living and if it meets other criteria, such as monetary value, that depend on the kind of object it is. The item must be judged to be of both outstanding significance and of national importance.

. . . .

In a statement, auctioneer David Heffel said he was concerned there could be a chill on international buyers purchasing works in Canada if they aren’t sure they will be allowed to take the items out of the country.

Link to the rest at The Globe and Mail

PG predicts a surge in Canadian art collectors who make arrangements for large storage vaults in Switzerland.

The Big Secret Why Behind Everything so Far

7 June 2018

From Chuck Palahnuick:

On the plus side I’m not crazy.  For several years my income has dwindled.  Piracy, some people told me.  Or the publishers were in crisis and slow to pay royalties, although the publishers insisted they’d sent the money.

More recently, the trickle of my income stopped.  Not that there wasn’t always a good excuse.  Someone’s mother was suffering from Alzheimer’s and needed constant looking after.  The bank’s wire transfer system wasn’t secure, and hackers were a new threat.  You don’t question someone who claims to be the caregiver for a mother with dementia.  You let it slide.  I let it slide.

That’s why my big shows on book tour stopped.  Because the payment for Fight Club 2 and the two coloring books and Adjustment Day never seemed to arrive.  Years of income.  Each of those big shows cost north of ten grand to stage.  Money I paid.  For the glowing beach balls, the severed arms, the $150 leather-bound books as prizes, not to mention the dog toys, the shipping, the candy.  So much candy.  For each event, shopping carts full of candy.  It was justified in my mind because most of my readers had never attended an author reading, and I wanted their first to be exceptional.  But when my income stopped, when I had to choose between health insurance and autographed rubber arms… the shows stopped.  There, I’ve said it.

In comics, you pay your own way.  Invitations arrived from Comic-Cons, Dragon Cons, Wizard Worlds, but my money for travel had dried up.  Instead of income, I got excuses.  But this entire time an idea nagged at me:  What if someone’s stealing?

But that, that was insanity.  I’ve worked with the same team of people since 1994.  To suspect anyone was stealing, I had to be crazy.

And then I wasn’t.  You may have read about this over the weekend in the New York Post.  All the royalties and advance monies and film option payments that had accumulated in my author’s account in New York, or had been delayed somewhere in the banking pipeline, it was gone.  Poof.  I can’t even guess how much income.  Someone confessed on video he’d been stealing.  I wasn’t crazy.

Link to the rest at Chuck Palahnuick’s blog

PG is interested to see a couple of articles describing the literary agency, Donadio & Olson, as a victim of the wholesale theft of client funds.

If a community bank closes because of financial improprieties that have continued for years, is the president of the bank regarded as an innocent bystander? Can he/she credibly point to a clerk and say, “It was all her fault! I had no idea this was happening over all these decades.”

In a criminal trial held in a court of law, the president is presumed innocent until proven guilty. In the court of public opinion, the president is presumed to be part of the scheme or too incompetent to be responsible for running a bank.

PG suggests that in the court of public opinion, the agents that own (and have owned) and operated Donadio & Olson during the lengthy period of time over which client funds were stolen from authors should be similarly judged.

In the  event of a bank failure or financial difficulties, typically, an aggressive federal agency swoops in late on a Friday afternoon and takes over the books and records and operations of the bank. All the bank’s employees walk out the  door while the government agency figures out what went wrong and who is entitled to how much money. The bank reopens on Monday morning under the direct management of the Federal Deposit Insurance Corporation. (Similar enforcement actions by other government agencies if a bank is not federally insured or a savings & loan has problems.)

It is PG’s impression that, like California, New York’s legislature has passed a law about nearly every subject imaginable. New York City prides itself as being the center of the traditional American publishing industry.

Where is the government regulation requiring that, if literary agencies are receiving and holding money that really belongs to someone else – authors – the literary agencies act like banks that receive and hold money belonging to other people and be treated as custodians of funds held to the highest standard of care?

If Big Publishing really cares about authors and doesn’t take them for granted, why don’t the standard terms of a traditional publishing contract include provisions that pay royalties directly to authors and agency fees directly to agents? Publishers will do this if asked by an attorney for the author. Why not make it the default?

As PG has stated before, nothing that is good for the author happens when an agency receives royalty payments to which the author is entitled. Passing funds through the agency bank account adds no value whatsoever and only provides an opportunity for something bad to happen to those royalties.

Romance writer’s bid to stop authors from using word ‘cocky’ fails in court

5 June 2018

From The Guardian:

Romance writers around the world can breathe a sigh of relief after a US court ruled that they can continue to use the adjective “cocky” in their book titles, after one author attempted to stop other writers from using the word.

In September 2017, self-published author Faleena Hopkins filed a trademark claim for the word “cocky” in relation to a romance novel series, which was registered by the US Patent and Trademark Office in April 2018.

. . . .

In May, several romance authors reported receiving letters from Hopkins asking them to stop using the word in their titles and requesting that they change them. Hopkins, according to the Authors Guild, later “tried to block the sale of books by other romance writers that included the word”. She then applied for a preliminary injunction and a temporary restraining order to prevent the publication of a collection of stories by various authors, Cocktales: The Cocky Collective, which was written as an act of protest against Hopkins’s trademark.

Link to the rest at The Guardian

PG says when your first appearance in court involves your arguments gaining no apparent traction with the judge, you just  might have a weak case.

PG also suggests that attempting to persuade a judge that he should issue an order preventing anyone  from challenging the validity of a trademark in The United States Patent and Trademark Office is also poor litigation strategy. A judge presiding in a court of general jurisdiction such as the federal district judge in this case will generally welcome a knowledgeable review of the issues he is asked to decide by an expert and neutral party like the USPTO.

If anything, such an attempt by Ms. Hopkins’ counsel gives the appearance of having a weak case for the validity of his/her client’s trademark.

Freedom to Publish Advocacy: Authors Guild Wins ‘CockyGate’ Court Ruling

4 June 2018

From Publishing Perspectives:

The Authors Guild reports that it has won a court ruling that means writers can continue to sell books with titles that use the word cocky despite a trademark registration owned by author Faleena Hopkins for a romance book series titled “Cocky.”

The Authors Guild and the Romance Writers of America (RWA) worked together in this case of legal advocacy for writers, defending the principle that no one should be able to own exclusive rights to use a common word in book or book series titles.

In ruling against Hopkins—who had claimed exclusive rights to cocky for romance titles—Judge Alvin Hellerstein of the Southern District of New York, the guild tells Publishing Perspectives, stated that he did not believe that Hopkins was likely to succeed on the merits.

Earlier this year, news of Hopkins’ trademarking of the word sparked initial amusement and wise cracks, followed by growing consternation in the American author corps: ‘CockyGate,’ as it was called by writers, began to look quite serious. Not only were authors reportedly taking cocky out of their titles out of fear of expensive litigation, but it was also said that another author was working to trademark the word forever.

. . . .

The interpretation of the legal team at the Authors Guild, which is led by executive director Mary Rasenberger, is that no one author should be able to prevent others from using a commonly-used word or phrase in book titles. The law, in the guild’s reading, is clear that an individual title cannot be trademarked—only series titles can—and that common words cannot be trademarked at all unless they develop an association in the minds of the public with a particular source, in this case a single author.

Link to the rest at Publishing Perspectives

A Model Privacy Policy Courtesy of XKCD

30 May 2018

Accountant embezzled $3.4M from famed literary agency

30 May 2018

From The New York Post:

A Manhattan accountant cooked the books at a prestigious literary agency that represents top writers, including “Fight Club” author Chuck Palahniuk, bilking its clients of millions and leaving the company on the brink of bankruptcy, according to legal papers.

Darin Webb, 47, faces 20 years in jail on wire-fraud charges for embezzling $3.4 million from storied Manhattan agency Donadio & Olson, according to a recently unsealed federal criminal complaint.

Although the agency, which also represents the estates of “Godfather” writer Mario Puzo and radio legend Studs Terkel, was not named in court papers, a lawyer representing the firm confirmed to The Post that Donadio & Olson was the subject of the alleged theft.

. . . .

The stolen money — allegedly lifted between January 2011 and March of this year — was earmarked for author royalties and advances, the complaint says.

But the theft could be exponentially more, a source told The Post, noting that a forensic accountant is combing through Donadio & Olson’s books all the way back to 2001, Webb’s first year at the agency.

He allegedly fessed up to the theft in March in a videotaped interview with company executives and their attorneys at the agency’s Chelsea office, saying he filed monthly financial reports that “contained false and fraudulent representations in order to accomplish the theft and evade detection,” the complaint states.

. . . .

The alleged theft was first discovered last fall when an unidentified author who was expecting to receive a $200,000 advance from his publisher asked Webb why he had not received the payment.

According to the complaint, Webb put the author off for months.

“The author did not receive the payment because Webb had converted the funds to Webb’s own use,” says the complaint.

Link to the rest at The New York Post

For those who are new visitors to TPV, PG will repeat his previous observations about literary agencies – The agency adds no value for an author by receiving all or any portion of the royalties to which the author is entitled from the publisher.

The solution is split checks – the publisher sends 85% of the royalties directly to the author and 15% to the agency together with a royalties report to each.

Unfortunately, this is not the first time an agent or an employee of an agent has stolen money that should have been paid to the agency’s clients.

According to the OP, this alleged embezzlement has been going on for about 17 years.

What does this say about the agent’s financial management skills? Does the agency ever pay attention to its authors’ money? Does the agency have even the most rudimentary accounting systems and safeguards in place to protect authors? Does the agency care?

The Guardian has a story about Fight Club author Chuck Palahniuk who says that he is “close to broke” because of the embezzlement.

Meet Ms. Got Proof, the Lebron James of the Legal World

27 May 2018

Not exactly to do with books, but PG suspects a TV program will be coming.

From Medium:

I don’t ever network,” 28-year-old criminal defense attorney Nicole Fegan tells me on the phone, a sentiment that resonates. An attorney myself, I’ve always found “networking” unnatural and uncomfortable, particularly when other lawyers are involved, most of whom are conservative white men — not my ideal audience. But Fegan is changing the game, providing hope where not much existed before, particularly not in law, and especially not in this column.

“I just do Instagram marketing,” Fegan tells me on her client-outreach strategy. And in fact, it was after a friend alerted me to Fegan’s Instagram that I became fascinated by her. All my lawyer friends are secretive as hell on the Internet. We’re constantly monitored by our local bar associations; to pass, we must pass a “moral character” test. This renders us paranoid to share anything on the internet that might jeopardize our careers. In sharp contrast, Fegan Instagram’s feed features her posing with guns and large stacks of money — props, she assures me (“I know the best prop guy in Atlanta”) — and wearing merch promoting her trademark slogan “Got Proof” over blunt-smoking red lips. In Atlanta, Fegan is frequently known as “Ms. Got Proof” — a moniker that took off after she represented rapper Peewee Longway.

. . . .

Fegan decided to go to law school after catching her own criminal charges for “intent to distribute” in college. The experience highlighted to her the unfairness of the system. “The state prosecutor really puts your back against the wall,” she tells me. “You either have to do what they say or you fight, and if you fight there’s such a risk involved that most people don’t.”

“So you took a plea?” I ask.

“No I fought it.” She won the trial, which “fueled” her. Afterwards, she “switched it all the way up.” A self-proclaimed “bum” in college, Fegan graduated magna cum laude at John Marshall Law School. In law school, she interned for Parag Shah, a well-known Atlanta criminal defense attorney, judge, and adjunct law professor. They met when she invited him to speak at a Georgia Association for Women Lawyers event in law school, and his brazen attitude made her want to work with him. “He’s different now because he’s a judge,” Fegan told me. “But after a few drinks at the strip club, he’ll be eating chicken wings with you.”

After she graduated, Shah helped Fegan “set up shop” on her own. But first, Fegan had to join the bar, which involved being questioned about her criminal past before 10 lawyers, a psychologist, and a stenographer. When they asked her why she thought she was searched for drugs, she responded “because I had a black man with me.”

. . . .

“My client is my co-counsel,” she tells me, explaining that her firm is just her. “Two things,” she tells me regarding her decision to work closely with her clients throughout every stage of the trial. “There is nobody better to know their case than themselves. And there is nobody better to beat a criminal case than a criminal.”

She says that what separates her from the old white men who saturate the field is her passion, and the fact that she always listens to her clients. She spends hours before trial going to jail for visits, even if she has nothing specific to discuss. “I just know they wanna know that someone is thinking about them.”

. . . .

When I asked Shah about Fegan’s Instagram, he responded, simply, “I love it.” For a client to trust you, he told me, they have to know you and be able to connect with you. “Social media has allowed an avenue for clients to develop that trust with their lawyers.” Fegan’s Instagram gives her clients a glimpse at how hardworking, passionate, and charming she is.

Link to the rest at Medium and here’s a link to Ms. Fegan’s Instagram account.

Judge Clears ‘Gone Girl’ Creators in Copyright Dispute

25 May 2018

From Courthouse News Service:

A federal judge dismissed an author’s claim that the popular thriller novel and movie “Gone Girl” is based on her copyrighted screenplay, finding that the stories are considerably different.

“Overall, no ordinary observer could conclude that [Out of the Blue] and Gone Girl are substantially similar. Their common elements are standard in thrillers and at the level of particular expression they tell very ‘different stories,’” U.S. District Judge John Robert Blakey wrote in a 33-page opinion issued Monday.

Author Leslie Weller filed a lawsuit in December against “Gone Girl” author Gillian Flynn, claiming she gave a copy of her screenplay “Out of the Blue” to a script consultant linked to Flynn, who then copied several elements of it.

Weller argued both stories focus on the central theme of “how well one person can really know another person.”

. . . .

Judge Blakely wrote that Weller failed to “connect the dots.”

“She describes a chain of professional relationships—most of which have no relation to Gone Girl—and invites speculation that some unidentified intermediary, for some reason, showed Flynn—who was by then two years into her work on the novel—an unproduced screenplay by a writer whom [her agency] did not represent,” the ruling states.

The judge also found that “numerous and significant differences” between the stories “weigh against finding substantial similarity.”

Link to the rest at Courthouse News Service

Here’s a copy of the court’s decision:



Trump blocking critics on Twitter violates Constitution: U.S. judge

23 May 2018

PG understands that the following may have little to do with writing and books, but this case raises an interesting point about the use or misuse of social media, which is of increasing importance to authors.

From Reuters:

A U.S. judge in New York on Wednesday ruled that President Donald Trump may not legally block Twitter users from his account on the social media platform based on their political views.

. . . .

Trump has made his @RealDonaldTrump Twitter account an integral and controversial part of his presidency, using it to promote his agenda, announce policy and attack critics. He has blocked many critics from his account, which prevents them from directly responding to his tweets.

U.S. District Judge Naomi Reice Buchwald in Manhattan ruled that comments on the president’s account, and those of other government officials, were public forums, and that blocking Twitter users for their views violated their right to free speech under the First Amendment of Constitution.

Eugene Volokh, a University of California Los Angeles School of Law professor who specializes in First Amendment issues, said the decision’s effect would reach beyond Trump.

“It would end up applying to a wide range of government officials throughout the country,” he said.

The U.S. Department of Justice, which represents Trump in the case, said, “We respectfully disagree with the court’s decision and are considering our next steps.”

. . . .

The individual plaintiffs in the lawsuit include Philip Cohen, a sociology professor at the University of Maryland; Holly Figueroa, described in the complaint as a political organizer and songwriter in Washington state; and Brandon Neely, a Texas police officer.

Novelists Stephen King and Anne Rice, comedian Rosie O’Donnell, model Chrissy Teigen, actress Marina Sirtis and the military veterans political action committee are among those who have said on Twitter that Trump blocked them.

Link to the rest at Reuters

PG thinks this decision will be reversed on appeal.

Just as the President is not required to permit everyone who wishes to attend a White House dinner or a political rally to come to such events, he is not required to provide an electronic place at his Twitter table for those he does not wish to attend.

Twitter isn’t a public forum because it’s owned and controlled by Twitter, not the government. Twitter can ban anyone for any reason and has done so on a political basis for some former Twitter members who have posted political opinions Twitter doesn’t like.

Twitter could deactivate Trump’s account if it wanted to do so. Twitter could likewise prevent selected users from making posts on the Trump account if Twitter decided that was a good idea. Or Twitter could prevent the President from using the Twitter block feature. It’s Twitter’s online space and it can set the rules.

In this case, however, a federal judge is trying to control how the President uses Twitter. That’s an exercise of government power by the judicial branch to control who President Trump invites to his digital White House. Under the First Amendment, is the President prohibited from using a Twitter feature that 99.99999% of the rest of the users of Twitter, including ten-year-old children, are free to use without any government constraint?

Every place in which government officials desire to speak is not automatically turned into a public forum in which anyone is permitted to speak. A public park is traditionally used as a prototypical example of a public forum. In a park, anyone can start speaking and gather a crowd to listen to whatever ideas the speaker wishes to express. Others can verbally dispute what the initial speaker is expressing.

PG suggests that Twitter does not qualify as a public forum because Twitter controls access and, as part of Twitter’s control, it permits the owner of a Twitter account to block the expressions of third parties that appear on the account.

Presumably, the President created his Twitter account for the purpose of communicating his ideas in the manner he chose. The opinion in the OP essentially says that the President is not permitted to communicate electronically in the manner he chooses. An unremitting and uncontrollable wave of hostile posts would have the effect of preventing the President from such effective communication of his ideas, effectively drowning out the President’s messages with a deluge of calculated electronic assaults (which, presumably could even be automated from a variety of Twitter accounts created for that purpose).

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