Supreme Court Hints That Trump Can’t Legally Block You on Twitter

Is the president’s Twitter feed a public forum?

|
Jun 20 2017, 2:37pm

Image: Shutterstock/Twitter Remix by Louise Matsakis

President Trump has a habit of blocking people he doesn't like on Twitter. Everyone from novelist Stephen King to VoteVets, a progressive group that advocates on behalf of veterans, have been barred from viewing the president's tweets and interacting with his account.

Earlier this month, the Knight First Amendment Institute sent a letter to President Trump, demanding that he unblock individuals who were denied access because they disagreed with or criticized him. If he refuses, the Knight Institute plans to file a lawsuit.

The Institute argued that because Trump uses his personal Twitter account, @realdonaldtrump, to communicate about his role as president, it should be considered a "designated public forum," like a sidewalk or public park. If it were categorized that way, blocking the American people from seeing and interacting with Trump's tweets could be considered a violation of the First Amendment. A new Supreme Court ruling issued Monday bolsters the Knight Institute's argument.

In 2010, a North Carolina man named Lester Packingham posted on Facebook about a traffic ticket that had been dismissed and was quickly arrested. Packingham is a registered sex offender and had violated a state law prohibiting him from using any website where he could interact with a minor, including social media sites.

Packingham fought the charges, arguing that the law violated his First Amendment rights. On Monday, the Supreme Court ruled in his favor.

The court ruled that "cyberspace" is the most important place for the "exchange of views" in society today. Most importantly, Justice Kennedy specifically mentioned the importance of social media for communication between elected officials and their constituents online: "On Twitter, users can petition their elected representatives and otherwise engage with them in a direct manner," he wrote.

The ruling "is quite helpful to our argument because it confirms that social media is a critical forum for public discourse," Katie Fallow, a senior attorney at the Knight First Amendment Institute, told me.

Several legal scholars agree the ruling serves as an important precedent for a case like the one the Knight Institute could bring.

"Even before the court ruled today, I believed that the president uses his Twitter account as a public forum," David Greene, the Civil Liberties Director at the Electronic Frontier Foundation told me. "This is how he communicates directly with the people. He can't discriminate who gets those messages."

"It's just not a private Twitter account anymore," Lata Nott, the Executive Director of the First Amendment Center at the Newseum Institute in Washington DC, said.

Designated "public forums" are subject to First Amendment protections. For example, the government can't stop a protester from speaking on a sidewalk because it doesn't like her opinion. The Knight Institute believes Trump similarly shouldn't be able to block people on Twitter when he doesn't like what they have to say.

Before Monday's ruling, the Supreme Court had said little about free speech online. "This case is one of the first the Court has taken to address the relationship between the First Amendment and the modern Internet," Justice Kennedy wrote in the opinion.

Packingham v. North Carolina sets an important precedent for protecting digital expression, but still doesn't fully spell out what would happen if a case concerning Trump's Twitter feed were to be brought to court.

For one, the ruling says nothing about what private companies like Facebook and Twitter can or can't do. They're still free to ban anyone who violates their terms of service and to censor content however they please.

"It creates a really difficult line-drawing argument," Richards explained. "It's trying to police a messy line between what is public and what is private."

"It's to the credit of these companies that they have—without admitting it in court—taken the responsibility of the custodians of public debate," said Neil Richards, a law professor at Washington University in St. Louis who specializes in the First Amendment. "We have to decide if that's a question we want to have left to a publicly traded corporation."

Richards offers a different perspective from the Knight Institute regarding how Trump's Twitter feed could be characterized by a court. "I think it's closer to the inside of his office than to the part of Pennsylvania Avenue that runs outside the White House," he said. The public doesn't have the right to decide who gets to see what happens behind Trump's closed office door.

Richards did say he thinks @POTUS, Trump's other Twitter account that is run by the White House, is closer to being a public forum than Trump's personal account. "But the question is: how close are they?"

Even if the court did rule that Trump's Twitter feed is a public forum, it would open the door for a series of related problems. Would that mean that every elected official's social media account should be deemed a public forum? It's just not clear.

"It creates a really difficult line-drawing argument," Richards explained. "It's trying to police a messy line between what is public and what is private."

Packingham v. North Carolina is a victory for anyone concerned about free speech online, but it's only the beginning of the court's long task of figuring out what protections internet expression should have. It will likely be years, or even decades, before we have a robust legal framework for our new digital lives.

"I don't think anybody knows just yet how this is going to go," Nott explained.

In the meantime, Trump is still free to block citizens, at least until someone sues him.

"Although some powerful people might disagree, not everything can be worked out in 140 characters," Richards said.