Home » Legal Stuff » Trump blocking critics on Twitter violates Constitution: U.S. judge

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 VoteVets.org 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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34 Comments to “Trump blocking critics on Twitter violates Constitution: U.S. judge”

  1. “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?”

    So, out of curiosity, which ten-year-old children are public officials seeking to use a private platform feature to block people from viewing their public communications? I’d say I’m just asking in snark, but I seriously have to wonder at the legal logic that claims that a public official in the US can use a private business for public, official communications suddenly no longer has to follow public access requirements as outlined by the US constitution and existing case law. Twitter having a feature that allows regular users to block people has almost no bearing on a US government official using said function.

    • Except blocking somebody doesn’t prevent you from seeing their Tweets. Just log out, go to google and type “Donald Trump twitter”. Voila. You’re reading it. That’s a barrier even the theoretical ten year old mentioned could easily surmount.

      What I’m curious about is if this opens the doorway to Twitter being considered some sort of public utility where they won’t be able to ban users arbitrarily.

      • I think at this point, some people on both sides consider Twitter to be more Of public utility than a private company.
        At least to judge by all the comments I see about censorship whenever twitter bands a political commentator.
        Since Twitter is a private company, they can ban whoever they like for whatever reason and so long as that person has a way to get their ideas out to the people, it can’t be considered censorship.

        • The thing is, Twitter and its competitors appear to be playing both sides of the coin here.

          Disclaimer: not a lawyer, nor do I play one on the net.

          In my understanding, there used to be two classes of communications companies (and other kinds of carriers, too — for instance, freight companies).

          One type was called a “common carrier”, which included things like the phone company, the Western Union telegraph company, and so on. Among other things, this meant that the company was largely immune to any lawsuits or criminal charges arising out of the activities of its users (for instance, if someone used the phone to plan a murder, the phone company couldn’t be charged with a crime, nor could they be sued). That was a big advantage. The downside of being a common carrier was that the company was obligated to provide identical service (in this case, delivering messages) to any customer who had the money. They weren’t allowed to (for instance) deny service to someone just because he was a Whig while the company directors happened to be Tories.

          The other class (for instance, newspapers) could discriminate. A newspaper didn’t have to print your editorial. However, that control of what messages were transmitted also left them responsible for the messages. You could sue a newspaper for libel, for instance.

          The “common carriers” had no control of the messages that were transmitted, and no responsibility for them.

          The “private carriers” (I’m not sure if this is the right term) had full control over the messages that were transmitted, and full responsibility for them.

          Note that in each category, the control and responsibility were proportional to each other.

          What Twitter, Facebook, and their kin seem to want is full control combined with no responsibility. They sort of have that, thanks to the DMCA, but it doesn’t seem right to me.

          I would bet money that this situation will change eventually but wouldn’t bet on which side it comes down.

          • I just don’t think there can be any two ways about it, either a private business, no matter how large can refuse to serve some people or it can’t.
            If it does, then when it banned someone, it can’t be called censorship, it just seems odd that some peoplewho put forth the argument that a business can refuse to serve anyone based on any reason cry censorship when a business refuses to serve them.

    • > public official in the US can use a private business for public, official communications

      Hmm… but public officials give official press conferences in private (or otherwise restricted) venues all the time. Does that mean that Trump has to open up the White House Press Room to the general public? Surely not.

      • Does it also mean that the White House phone bank must pass every call for the President to his desk? Or the Congressional phone bank to the Representative or Senator that the person on the other end wants to rant at? Does it require that every letter be similarly treated?

        This is simply an attempt – a very stupid attempt – to shut down Donald Trump’s use of Twitter to communicate. Too bad that a judge cannot be impeached for total incompetence.

        • Except that this ruling doesn’t shut down Trump’s use of Twitter in any way.
          He can continue to tweet the same as before. this ruling places no restrictions on his expression.

          It merely allows people to respond to him on the Twitter forum, including people whom he has blocked, and does not place any obligation on him to read those responses or otherwise acknowledge them in any way.

          PG’s argument is compelling. Indeed this ruling may be reversed — but not because it restricts our President’s Twitter expression. It doesn’t. Not in the slightest.

          • > does not place any obligation on him to read those responses or otherwise acknowledge them in any way.

            What about the White House Press Room? Is Trump obligated to let dozens of people yelling “Trump sucks!” in there, given that he could simply ignore them?

          • No, it is a blatant attempt to shut him down – by exercise of the “Heckler’s Veto.”

            This is a private account, not an official government account. In any case, a government official or agency – not just the POTUS – can make statements, even official ones, without providing any avenue for public feedback through the same platform. You have heard of press releases, correct? The whitehouse.gov website also does not have a comment section – and never has, through both Republican and Democratic administrations.

    • Terrence OBrien

      hat a public official in the US can use a private business for public, official communications suddenly no longer has to follow public access requirements as outlined by the US constitution and existing case law.

      Trump’s Twitter posts are not public, official communications. Note his recent Tweet saying he would issue an official order the next day. The tweet was not an official communication. The subsequent order was, and it was not sent via Twitter.

      • As I noted already, it does not matter whether it is an “official” communication or not. The whitehouse.gov website has never had a comment section, throughout all of the administrations since it was set up. There is no requirement that public feedback be enabled on the same platform as the communication (just that it cannot be prohibited entirely).

        What irks the Left – and this judge is a dues paying member of same – is that Twitter actually gets to people. This ruling is simply a blatant attempt to shut down this effective avenue of communication via the “Heckler’s Veto.” (Note that this, as usual, is an about-face by them – Obama blocked multiple people from his account, without a single voice of protest being raised by “his people.”)

        • Terrence OBrien

          I live in hope of brighter days to come when the Federal Register has a comment section.

  2. As I saw on another site, there’s nothing stopping twitter from banning/blocking Trump (other than all the tweets the twits tweet) so there’s no reason Trump can block those he feels like.

    (It does make me glad I never signed up for it …)

    It ain’t an official anything, it’s just Trump mouthing off so most twits won’t notice what else he and his friends are up to … (and they’re falling for it!)

    • Dang my hitting submit without reading it twice …

      … so there’s no reason Trump [can’t] block those he feels like.

      And those poor fools on twitter can lower their blood pressure by blocking him …

  3. Terrence OBrien

    Public forum? If so, how can anyone be banned? Is PV a public forum? Would it become a public forum if Trump posted?

  4. Sniff. Myself and many others were banned from T’s t feed. We thought of it after the fact as a little bit of a badge of facing the maw head-on. But now, we have been stripped of our little tin medals. Woe.

  5. Sniff. Myself and many others were banned from T’s t feed. We thought of it after the fact as a little bit of a badge of facing the maw head-on. But now, we have been stripped of our little tin medals. Woe.

  6. And Agree with PG. It is way likely to be reversed on appeal, but if not, could go to the supremes.

  7. One might note that when you block someone on Twitter you block them from responding to you and stop seeing their Tweets. If Trump wants to spew his opinions all over Twitter, does it not seem appropriate for other users to be able to respond to him? Obviously this one is going to the Supremes who will probably side with Trump.

    • Or of course you(we) can block him if we don’t care for what he tweets – right?

      What a laugh it would be if it were announced that there were only a few thousand twits actually following the big twitter in chief. 😉

      • Terrence OBrien

        If that were the case, I suspect the few thousand would all work for news organizations. They seem particularly attuned to his Tweets.

    • Nothing is stopping anyone from responding to Trump’s tweets, or anyone else’s. If you block me on Twitter, I can still see your tweets, and can still say whatever I like about them. They just won’t be linked to the original tweet and you won’t see them on your feed.

  8. With my behaviouralist hat on, Twitter allows one to Tweet. People can chose to follow the person who Tweets.

    The crux of the matter here, is proportionate response.

    I observe that if one says something that others don’t like, then what happens is that a mob forms to swamp the originator.

    The President is known for saying things that others don’t like. Said others think he should be refuted, which sounds fair until you factor in the mob response. And just because there’s a lot of people in a mob, it doesn’t follow that the opinions of said mob are any more correct than the one they refute.

    As a behaviouralist, I say don’t follow the President’s Tweets.

    If opinions were facts, then that would be another matter.

  9. IMO they shouldn’t appeal it at all, and let this judges decision stand.

    Because it would mean any public official, regardless of their affiliation, cannot block anyone.

    And, as a public forum, twitter can no longer use its own “judgement” in who to block/allow access to use it.

    The law of unintended consequences strikes again…

    • Felix J. Torres

      I expect Twitter would have a vested interest in appealing.
      They aren’t profitable enough to survive that scenario.
      Not that I particularly want them to survive but there’s no telling what would replace them.

  10. Every time I see the Supreme Court being called ‘the supremes’ I picture 9 justices in black robes breaking into song.

    • At least then they’d be more entertaining than some of the rulings they lay out … 😉

    • The playlist for those Supremes:

      “Stop! In the name of Law”
      “Where Did Our Law Go?”
      “You Can’t Hurry Law”
      “I Hear a Certiorari”
      “Back in My Court Again”

      And many more! Only $9.99 at your local record shop.

  11. We do of course have a right to free speech. We do not, however, have a right to an audience.

  12. Upon further reflection, this ruling could clarify what a ‘public forum’ is when it is used by elected officials in the age of the internet.Further court action and arguments will be very interesting indeed.

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