Welcome to the 21st Century. If you lived 100, or maybe even just 30, years ago, you would have likely thought that this century would be filled with flying cars, useful robots, and a higher level of prosperity than ever believed possible.
Instead, people are suing the President because he blocked them on Twitter.
What a time to be alive!
President Trump frequently blocks people on Twitter for criticizing him. Here’s a list of 26 of them. But I’m only really interested in one of them: Rebecca Buckwalter-Poza, a journalist who is now suing the President on the grounds that “she has been harmed professionally by not being able to see Trump’s tweets.”
Ordinarily, I might give her the benefit of the doubt, but after seeing the tweet that got her blocked, I have to call her out.
<blockquote class=”twitter-tweet” data-lang=”en”><p lang=”en” dir=”ltr”>To be fair you didn't win the WH: Russia won it for you. <a href=”https://t.co/iPUXKopd9B”>pic.twitter.com/iPUXKopd9B</a></p>— RPBP (@rpbp) <a href=”https://twitter.com/rpbp/status/872064723084333057?ref_src=twsrc%5Etfw”>June 6, 2017</a></blockquote>
<script async src=”https://platform.twitter.com/widgets.js” charset=”utf-8″></script>
Well, Rebecca, that’s not good journalism.
I understand that the tweet is over a year and a half old now, but you’re actively promoting a conspiracy theory for which, despite a federal investigation, not a single shred of evidence has been produced. As a journalist, it’s ethically irresponsible to be pushing narratives that aren’t based in fact.
Furthermore, it tells us a lot about her political alignment. The lawsuit isn’t so much about the merits of the cause but instead motivated by political alignment. This is somewhat confirmed by the fact that if Rebecca wanted to have access to Trump’s tweets, it would be as easy as logging out of her account, making a new account, and following the President. If she can’t be bothered to do this minimal amount of work, journalism probably isn’t the right profession for her.
So, pushing past how disingenuous this lawsuit is, let’s try to evaluate it on its merits.
Rebecca Buckwalter-Poza’s case has been taken up by the Knight First Amendment Institute at Columbia University, who is suing the President on behalf of her and six others who have been blocked by the President.
Reading through the text of the lawsuit, there appear to be two major points on which the entire case hinges.
- Is the President’s Twitter account a “public forum for speech by, to, and about the President?”
- Do the President’s “actions violate the First Amendment rights of these individual Plaintiffs?”
Just to get this out of the way, according to Sean Spicer, the former White House Press Secretary, and White House Communications Director, Trump considers his tweets to be official statements. While I don’t know if I agree with that position, the government did officially concede that point before a court, so we’re going to treat it as though it is true.
Our next step is to establish if the President’s Twitter account can be considered a public forum.
According to First Amendment Schools.com, “A public forum is a place that has, by tradition or practice, been held out for general use by the public for speech-related purposes.” Furthermore, it appears that the Knight Institute is alleging that Twitter is “A ‘traditional’, or ‘open, public forum’ . . . a place with a long tradition of freedom of expression, such as a public park or a street corner. The government can normally impose only content-neutral time, place, and manner restrictions on speech in a public forum.”
Let’s be fair here, Trump’s blocking isn’t content-neutral. The Knight Institute has that going for it.
But is it the government imposing the restrictions?
Donald Trump is not using the military or the police to prevent people from reading his Tweets. He is not passing executive orders or ordering the FBI to interfere. I point this all out in order to say that he is not using any of the power granted to him in his role as the President of the United States.
Instead, as a user of Twitter, he is using powers that are granted to him by Twitter. While I would agree that there is interference going on, I don’t think it is government interference, even though it is a government official making the move. Donald Trump could and did block people before he became President, which means that blocking people on Twitter is not a power given to him due to his role within the government. Consequently, it can’t be a violation of First Amendment rights because the First Amendment only applies to government action.
Let’s imagine a parallel scenario. I’m elected governor of Texas. I go on vacation, but I decide I’m going to spend it in my private residence, one that I owned before I became governor. If someone breaks into my house in order to rob it and I shoot them in response, there is no legal recourse available to them because I’m a governmental figure. I’m merely exercising an option I have as a private citizen in the State of Texas. The fact that I am the Governor neither allows me nor prevents me from taking the actions I did, as the justification lies elsewhere.
But even Trump’s actions don’t violate the journalists’ First Amendment rights, it is still possible that a public forum is being violated. There is some evidence that the law is vague. Law professor Neil Richards says, “the law here is famously muddled.”
However, my research suggests that public forums typically fall into two categories: traditional public forums, such as sidewalks, parks, and streets, and designated public forums, where the government “intentionally opens a nontraditional forum for public discourse.”
It’s hard to define Twitter as a traditional public forum because access to Twitter itself is regulated. Full participation requires an account that must be registered with the company, and the company can terminate access at its own discretion—as opposed to a park, which is government-run and already open to everyone.
Likewise, it is hard to make the case that Twitter is a designated public forum. When did the government do such a thing? I don’t they did, and it’s possible they wouldn’t have the power to do so even if they wanted to.
While I think the courts will rule in favor of the government in this case, I wouldn’t be especially surprised if I heard the opposite was happening. I just hope that someone points out to the judges that 1) The majority of accounts that were blocked directed something abusive at the President, which is one of the situations for which the “block” button was created, and 2) The only people preventing the journalists from seeing Trump’s tweets are themselves. Go make a new account.
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