Blocked: The Trump Twitter Case in Context
This week, the White House notified the Knight Institute that the @realDonaldTrump Twitter account unblocked seven plaintiffs following their victory the week before in the case the Institute brought against President Donald J. Trump and others for blocking critics on Twitter.
Judge Naomi Reice Buchwald ruled that “the ‘interactive space’ where Twitter users may directly engage with the content of the president’s tweets” are “properly analyzed under the ‘public forum’ doctrines set forth by the Supreme Court, that such space is a designated public forum, and that the blocking of the plaintiffs based on their political speech constitutes viewpoint discrimination that violates the First Amendment.” The government said it will appeal this decision to the United States Court of Appeals for the Second Circuit.
The Trump case matters because the president is often governing through tweets so, when he blocks citizens from this account while he is using it to carry out official business, he is effectively blocking the workings of American democracy. After the White House notified the Knight Institute, Katie Fallow, an Institute senior attorney, said, “We are concerned by reports that individuals other than our clients are still blocked from the account. It should go without saying that those individuals have the same rights as our clients. If they have been blocked on the basis of their viewpoints, the White House should unblock them immediately.”
The case also matters because many other public officials, federal, state, and local, are carrying out their work on social media and have blocked users from their accounts. The Trump Twitter case is among the first of several like it making their way through federal courts. The Supreme Court will likely consider one or more of them and determine the law of the land on this novel and important issue.
The Trump Twitter case is among the first of several like it making their way through federal courts. The Supreme Court will likely consider one or more of them.
Angela Greben, a blogger in Sunnyvale, California, has collected the names of many state and local public officials who have blocked people from accessing their accounts on Twitter, Facebook, and other social media outlets in the past four years. In October of 2016, for example, she posted the list she obtained under California’s Public Records Act from the city of San José of the almost sixty people that Sam Liccardo, the city’s Democratic mayor, was then blocking on Twitter.
“Taking a look through all the blocked accounts,” Greben commented, “you'll notice that Mayor Liccardo mainly uses the block feature to silence republican voters.” In the Liccardo post on her blog at govblock.blogspot.com, she provided links to all of those accounts, making it easy for a visitor to check out a critic’s tweets.
Many examples indicate that Greben was correct that the mayor was blocking mainly Republicans. Tweets and retweets of @RosaleeAdams include “Ronald Reagan was the greatest modern day president” and “The Democratic Party is in COMPLETE denial. No message. No platform. No Leader. NO BLUE WAVE.” Tweets and retweets of @cmccullough58 include “Democrap clowns want to steal our crumbs!” and “The biggest THREAT our nation faces is Democrats in power!”
Since Greben lives in a very blue state, it’s not surprising that a majority of the officials she has investigated seem to be Democrats. Some blockers she identifies are Republicans, however, like Florida’s governor, Rick Scott. He blocked, among others, @LoyalDemJim, who describes himself like this: “Democrat for 42 yrs, my heart is in the U.S. Constitution. Facts do still matter. Democratic Keyboard Activist.”
Greben’s blog contained 95 posts as of this week, covering apparently hundreds of public officials and public agencies that have blocked social media users. Others have corroborated some of her findings — for example, the First Amendment Coalition prompted the disclosure by the office of California’s Governor Jerry Brown that he has blocked more than 1,500 people on his Twitter and Facebook accounts.
Some blocking reported on Greben’s blog seems to be the result of vulgar and vituperative tweets, posts, and comments from critics of officials. But many users got blocked, very likely, because of the political content of their messages, in response to a social media message of an official that clearly addressed a public issue. In June of 2016, for example, @chiefbig1 tweeted about Mayor Liccardo and the San José Police Department: “Thanks for showing the country where San Jose stands in regards to ones right to assemble. Pathetic mayor & pd.”
Since 2008, the share of Americans using at least one social media site has climbed from around 25 percent to almost 70 percent.
President Trump’s current 52.3 million followers on Twitter loom larger than the collective tens of millions who follow other federal, state, and local officials. (According to TwitterAudit this week, 16 percent of these followers are fake.) His dominance of digital news over the past two years, thanks largely to the pugnaciousness of his tweets, often leaves the impression that his use of social media is the most significant in American public life.
On Inauguration Day last year, though, Barack Obama had around 80 million followers, compared to Trump’s 21 million. Obama now has almost twice as many followers as Trump (103 million: TwitterAudit has 15 percent of them as fake). Obama used the Internet and social media to revolutionize how politicians run for office and to expand the executive branch’s dealings with the public through digital technology. The number of regular monthly Twitter users in the U.S. grew from around 5 million in 2008, when Obama was first elected president, to around 70 million today. In the same period, the share of Americans using at least one social media site has climbed from around 25 percent to almost 70 percent.
Trump’s tweets follow a path that Obama marked for him and thousands of other public officials, in a major structural change in American governance over the past decade. Until Obama’s presidency, government meetings with citizens largely took place in physical spaces. Now, they increasingly happen in virtual spaces, especially on social media.
As the New York Times reported, these gatherings are “the kind of direct-to-voter messaging strategy that has become increasingly common among politicians — both as a way to shape information about their goals and to avoid difficult questions from the news media, particularly in the midst of scandal or controversy.” The use of social media to avoid accountability to traditional media makes officials’ accountability to citizens especially vital.
The Trump Twitter case is important as a check on Trump’s avoidance of accountability. As the Knight Institute said when it filed the lawsuit, “President Trump’s tweets have become an important source of news and information about the government, and the comment threads associated with the tweets have become important forums for speech by, to, and about the President.”
The writer and legal analyst Rebecca Buckwalter, for example, was blocked from the president’s Twitter account on June 6, 2017: “At 8:15 that morning, President Trump tweeted, ‘Sorry folks, but if I would have relied on the Fake News of CNN, NBC, ABC, CBS washpost or nytimes, I would have had ZERO chance winning WH.’ Ms. Buckwalter replied, ‘To be fair you didn’t win the WH: Russia won it for you.’ Ms. Buckwalter’s reply tweet received 9,033 likes and 3,371 retweets. Soon thereafter, Ms. Buckwalter discovered she had been blocked from the @realDonaldTrump account.”
In physical forums that the government opens for debate among citizens, the Supreme Court permits officials to impose only narrow restrictions to achieve compelling government interests — such as rules against inciting others to violence. It’s a well-established rule of free speech that officials can’t discriminate against people based on their viewpoints. Even in “limited” public forums, where the government may draw lines based on content – a school board can say that a school-board meeting is limited to school-related topics and disallow complaints about trash collection – it can’t exclude viewpoint-related comments, like criticism of the board’s members.
That entails the government throwing its weight against a given side in a debate, which is a basic violation of the First Amendment. Viewpoint-based exclusion infringes the free-speech speaking rights of the people who are excluded as well as the listening rights of those in the forum now devoid of dissent.
The legal logic of the Trump and Hogan cases should apply to all other public officials in federal, state, and local government who have blocked users because of their viewpoints.
After the ruling in the Trump case, can other public officials still block followers on Twitter and other social media in a form of government censorship, because they don’t like viewpoints that followers have expressed?
In April, Maryland’s Governor Larry Hogan reached a settlement with the American Civil Liberties Union of Maryland and four plaintiffs blocked from the governor’s official Facebook page — as the ACLU wrote in its complaint in federal court, they were “arbitrarily censored by the Governor just for posting comments on the Facebook Page with which the Governor or his staff apparently disagreed.”
The state agreed to pay the plaintiffs $65,000 and, more importantly, to adopt a revised social media policy. The old policy, the ACLU said, created “a social media Star Chamber,” which “allowed blocking particular comments, or indeed all comments from a constituent, ‘at any time without prior notice or without providing justification.’”
The new one, the ACLU said:
1. Mandates that the Governor will not discriminate based on viewpoint and will permit all commentary on his Facebook page on any past topic he has covered;
2. Also calls for the creation of a second “Constituent Message Page” as an additional social media forum with and among users and the Governor about any topic related to governmental concerns – even topics Governor Hogan has not addressed in the past;
3. Creates a process to contest restriction of access to the Governor’s social media platforms; and
4. Governs all of Governor Hogan’s social media accounts on Facebook, Twitter, Snapchat, and YouTube.
The legal logic of the Trump and Hogan cases should apply to all other public officials in federal, state, and local government who have blocked users because of their viewpoints. The logic already applies in the Davison Facebook case, in which Judge James C. Cacheris of the Federal District Court in Alexandria, Virginia, ruled that Phyllis Randall, an official in Loudon County, violated Brian Davison’s free-speech rights by blocking him from a personal Facebook page that she was using in an official capacity. Randall appealed. The case is expected to be the first about social media blocking that a federal appeals court will hear. (The Knight Institute is representing Davison in the appeal.)
The legal scholar Noah Feldman has pushed back against the Trump Twitter ruling. “On the surface,” he wrote in an opinion piece in the Times, “this apparent expansion of free speech may seem sensible, even exciting. After all, if social media is where we do our political talking, it would seem logical to bring the Constitution to bear there. The problem, however, is that applying the First Amendment to social media will make it harder or even impossible for the platforms to limit fake news, online harassment and hate speech — precisely the serious social ills that the world is calling on them to address.”
In the ruling, though, the judge made a distinction between a public official’s blocking of a constituent from her purely personal Twitter account and the official’s blocking of a citizen from an account she is using to conduct official government business. The judge’s distinction addresses Feldman’s concern: “No one can seriously contend that a public official’s blocking of a constituent from her purely personal Twitter account – one that she does not impress with the trappings of her office and does not use to exercise the authority of her position – would implicate forum analysis, but those are hardly the facts of this case.” The judge’s decision also applies only to the official’s control of access to her account, not to Twitter’s control. The First Amendment applies only to state actors – someone acting on behalf of a governmental body – and Twitter is not a state actor.
It may be a year or more before the Trump case, the Davison case, or a similar one makes it to the Supreme Court and the Justices resolve the law throughout the U.S. on this issue. But each time a lower federal court decides that it’s unconstitutional for a public official to block a user from a social media account used for official business because of this or that viewpoint about an official matter, all federal, state, and local officials who have done that, or are tempted to do it, will receive further notice that doing so violates the First Amendment and is prohibited.