Twitter has undoubtedly been a hegemon amongst social media platforms, particularly because it is a platform used by some of the world’s most influential people and companies. The government, and President Trump, is no exception, as President Trump uses his personal Twitter account, @realDonaldTrump to make comments, statements, and direct questions to the public.
The Knight First Amendment Institute filed suit in the Southern District of New York, claiming that President Trump unconstitutionally blocked several people from the @realDonaldTrump account. The account blockage means that those private citizens who wish to see or reply to the President’s Tweets cannot do so, and those citizens would be unable to see the Tweets of other private citizens who reply to President Trump’s Tweets. The suit alleges that President Trump, through his personal Twitter account, blocked those private persons because they criticized the President and his policies. The basis for the suit stems from a First Amendment claim—that the government cannot engage in viewpoint discrimination in a “public forum” without meeting strict scrutiny.
The Supreme Court of the United States has defined a public forum as governmental property that “has immemorially been held in trust for the use of the public.” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n. Traditional public forums have been areas such as sidewalks or public parks. However, can the President’s Twitter account be said to constitute governmental property? Can the account be said to constitute governmental property that has immemorially been used for the public? Because of Twitter’s relative recency as a communicative platform, and the fact that Twitter itself is a private company, these questions can be difficult to answer. But, they likely need not be answered because even if President Trump’s Twitter account was not deemed a public forum, it may likely be deemed a “designated public forum” and must still meet the same strict scrutiny standard.
Designated public forums are areas typically not open for the public but were made open to the public for the expression of ideas. This definition gets around the problem with the “public forum” definition, because it does not matter whether Twitter or the President’s Twitter account is governmental property. Instead, the question is simply: Did the government designate or use Twitter as a place for expression to and from the public? The Southern District Court of New York answered yes. It found President Trump’s Twitter account to be a designated public forum, and although the appeal is pending, it held that the President violated the First Amendment in its actions to block several Twitter accounts from accessing his page. If President Trump’s personal Twitter account is deemed a designated public forum, then the President and his communications team must act cautiously when making new attempts to block Twitter users from accessing the President’s Twitter page. The government must meet strict scrutiny, meaning that the blockage of accounts must serve a “compelling state interest” and is “narrowly tailored” to achieve that state interest. Courts do not typically find compelling state interests unless safety is a major concern. Is it really a compelling state interest to block a few Twitter users from talking to the President? And, even if the government can successfully claim a compelling state interest, there may have been less restrictive ways to meet the alleged interest. For example, the government could have communicated with Twitter’s regulatory team to provide warnings to the Twitter users who the President felt offended by.
Ultimately, President Trump will need to tread lightly on social media
Carlos Zapata, 3 April 2019.