Thursday, March 08, 2018

Is Trump's Twitter a Public Forum and the Limits of the Law

By Eric Segall

On Thursday, various plaintiffs argued in New York federal court that President Trump does not have the right to block people on Twitter. This issue is enormously difficult, has serious implications, and also demonstrates the limits of "legal reasoning."

Twitter is a private company not bound by the First Amendment because the Constitution only limits what governmental actors can and cannot do. There is virtually no doubt that Twitter could decide to remove President Trump or require him to only block people who make threats or treat him in a manner that is so offensive it would violate other Twitter policies. In a perfect world, Twitter would take this step. As the past 15 months have starkly shown, however, we don't live in a perfect world.

Although his lawyer argued to the contrary on Thursday, Trump clearly uses Twitter for official business. Sean Spicer once said that the President considers his tweets "the official business of the United States." However, the fact that Trump uses Twitter officially does not come close to answering the question whether he can block people from his account. Trump uses his phone and his email for official business also, but that doesn't mean he has to take phone calls or let any member of the public e-mail him.

The legal doctrine at issue in the case is the "public forum doctrine." Where the government has traditionally allowed speech on its property, such as in parks, open town hall meetings, and sidewalks, as Mike has written before, the government may only enact narrow, content-neutral, time, place and manner restrictions. In a public forum, the government is not allowed to censor speech it doesn't like because of the content of the speech. Some government places, such as the United States Senate floor, or the Supreme Court courtroom, are clearly not public forums. Other places, like the national mall, are clearly public forums. There are also limited public forums, such as government owned theaters or public university spaces where the government has a bit more leeway to restrict speech, though how much is a matter of debate.

Is President Trump's Twitter account a public forum, a limited public forum, or a place, like the Oval Office, where the President can unilaterally decide who can visit and who can be excluded? An initial rational reaction might be that Twitter is a private company, and absent the most compelling of interests, the government cannot regulate it at all. Thus, how can a Twitter account be a public forum for First Amendment purposes? If a judge requires Trump to act a certain way on Twitter, but Twitter allows Trump to make a different decision, isn't the judge telling Twitter what it can and cannot do? If so, that suggests such a decision would violate the First Amendment, and also demonstrates how complicated it is to treat a private space as a public forum.

On the other hand, Trump engages with the public regularly on Twitter, and often uses Twitter to announce (or try to announce) official policies such as banning people who are transgender from serving in the military.  At least one lower court judge has said that a local government official who uses Facebook for official business and to interact with the public created a public forum where she is not allowed to ban people who disagree with her positions.

It is certainly true that technology has transformed the way we communicate with each other. Social media platforms like Facebook and Twitter are analogous to public parks and other traditional places where the government has allowed speech regardless of its content. On the other hand, as Thomas Wheatley pointed out, Facebook has many policies concerning minors, offensive speech, and malicious speech that the government could not adopt in a traditional public forum. A governmental official using Facebook must abide by those policies whereas that same official would be barred from adopting those policies for a public park or other government owned property where people have traditionally been allowed to peacefully protest.

Much has been written about the difficulties the Court has created through its public forum analysis. The reality is that little the Court has said before about the appropriate places to be considered public forums helps answer the Trump Twitter dilemma. In other words, prior doctrine could be easily used to justify designating Trump's Twitter account a public forum . . . or not.

I don't envy the judge who has to decide this case. The President of the United States regularly engages with millions of people and should not be allowed to pick and choose who gets to see his messages. But he has very little control over Twitter should that private company decide to impose its own rules on how governmental officials use its platform. The government's lack of control over the space Trump is using to communicate his nonsense, insults, and occasionally important decisions, suggests Twitter (and Facebook) are not public forums. Maybe we need a different doctrine to resolve the question whether governmental use of privately owned social media platforms limits how officials can use those platforms, but I seriously doubt such a doctrine exists.

The law has simply run out here, and I truly don't know the best answer to this difficult question. Do you?