“Believe Me!” Trump’s Twitter Habits Trigger a Fascinating First Amendment Fiasco

By: Jason Wiener, Summer Blogger

What’s the difference between blocking and muting someone on Twitter, and does it really matter? More importantly, who owns a social media profile? The users that create and run the page or the social media company that runs the platform? 

On May 23, 2018, Judge Naomi Buchwald of the United States District Court for the Southern District of New York ruled that President Donald Trump cannot block Twitter users from the @realDonaldTrump page, but he can mute them. For those not on Twitter, when one user blocks another, the blocked user cannot see or interact with the Tweets or profile of the blocking user. By contrast, muted users can see and reply to Tweets posted by their muter, but the muter avoids seeing anything posted by the muted.

Although the opinion is not binding precedent, the answers to the core legal question in the case could have far-reaching effects for public officials, social media users, and communication-based technology companies. The dispute, however, is far from over. On June 4, 2018, the Department of Justice filed its notice of appeal.

In the court order, Judge Buchwald asserts that certain portions of the @realDonaldTrump account, including the “interactive space[s]” where Twitter users can comment and engage with one another, are classified as designated public forums. It follows that government actors cannot suppress political speech in such an area, nor engage in viewpoint discrimination. The order only granted the plaintiffs a declaratory judgment against the President and White House Director of Social Media Daniel Scavino.

Judge Buchwald determined that President Trump and Daniel Scavino own and officially operate the @realDonaldTrump Twitter account. The District Court opinion hinges on classifying the comment sections to public officials’ tweets as designated public forums. There is however a lack of consensus on whether that classification is correct.

Knight First Amendment Institute v. Trump stands in contrast to a similar case decided this year. The ACLU filed a lawsuit on behalf of two plaintiffs seeking an injunction to stop Kentucky Governor Matt Bevin from blocking users from accessing his Facebook and Twitter pages. In denying the motion, U.S. District Judge Gregory Van Tatenhove determined that a forum analysis was improper because the governor’s Twitter and Facebook accounts are “privately owned channels of communication and are not converted to public property by the use of a public official.” The District Court characterized blocking certain individuals as “culling” the accounts “to present a public image that [Governor Bevin] desires.

When Knight v. Trump was filed, Noah Feldman, a Harvard constitutional law professor, argued that the First Amendment cannot be used to prevent President Trump from blocking Twitter users. Feldman, who has been critical of the Trump presidency, insists that the @realDonaldTrump account and comment section cannot be a designated public forum because it is “a stream of communication that’s wholly owned by Twitter, a private company with First Amendment rights of its own.

Twitter has permanently banned several individuals from using its platform. Feldman wonders if it makes sense that a private company can prevent some people from accessing a designated public forum. Furthermore, he makes a compelling case that applying First Amendment rules to a private social media company could inhibit the company’s ability to curtail harassment, spam, and fake news.

As the courts enter this uncharted territory, it is important to remember that technology always outpaces the law and that we must patiently consider issues to mitigate unintended consequences.

* Jason Wiener is a second-year law student at Wake Forest University School of Law. He holds a Bachelor of Science in Genetics and Plant Biology from the University of California, Berkeley.