A fascinating court decision regarding The Donald and the First Amendment. The Verge reports:
It is unconstitutional for public officials, including the president, to block Twitter followers who criticize them, a court ruled today in a legal dispute over President Trump’s account.
The lawsuit, brought by Columbia University’s Knight First Amendment Institute, argued that Twitter users blocked by @realdonaldtrump had their First Amendment rights violated. In a decision released today, a federal judge hearing the case ruled that Twitter’s “interactive space,” where users can interact with Trump’s tweets, qualifies as a public forum, and that blocking users unconstitutionally restricts their speech. The decision rejected arguments from the president’s team that President Trump’s own First Amendment rights would be violated if he could not block users.
“This case requires us to consider whether a public official may, consistent with the First Amendment, ‘block’ a person from his Twitter account in response to the political views that person has expressed, and whether the analysis differs because that public official is the President of the United States,” the decision begins. “The answer to both questions is no.”
The court, while not going so far as to enter an order against the president and social media director Dan Scavino specifically, ruled more generally that public officials violated users’ rights when blocking them on the platform. The decision says such action is “viewpoint discrimination,” and that “no government official — including the President — is above the law, and all government officials are presumed to follow the law as has been declared.”
Note that this decision only applies to public officials. Private individuals can presumably block at leisure.
Eugene Volokh highlights the key point of the judgment over at Reason:
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.
This makes me increasingly think — as bad a lawyer as I am — that there is a fair argument to be made in court (whether successfully or not is another question, and this will also vary from judge to judge) that the platforms themselves; Twitter, Facebook and so on, should not be able to ban or censor users engaging in public debate with other users, including with public officials. Stay tuned.
Arthur Chrenkoff blogs at The Daily Chrenk where this piece also appears.
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