@realDonaldTrump and the First Amendment

By
Alex Abdo
June 19, 2017

The Supreme Court’s decision today in Packingham v. North Carolina explicitly recognizes the centrality of social media to public discourse. The Court highlighted “Twitter, [where] users can petition their elected representatives and otherwise engage with them in a direct manner.”

We were particularly interested to read the Court’s thoughts on Twitter, given the letter we sent to President Trump on June 6 contending that @realDonaldTrump is a “designated public forum” under the First Amendment and that the Constitution bars the President from blocking users from the account based on their views.

While the White House hasn’t responded to our letter, the letter has sparked a lively debate among First Amendment scholars and commentators. Packingham will, no doubt, feature in that debate going forward. Below are our replies to a few of the objections raised so far:

Objection 1: @realDonaldTrump can’t be a public forum because Twitter is a private company.

At Bloomberg, Noah Feldman argues that @realDonaldTrump can’t be a public forum because Twitter is a private company. The mere fact that a forum is on private property can’t be determinative, though. In Southeastern Promotions v. Conrad, the Supreme Court held that the government had created a public forum by opening up to the public a private theater that the government had leased. Just this year, a federal district court held that official use of Facebook may create a public forum, notwithstanding Facebook’s private ownership. These cases make sense. Imagine that your county held town hall meetings at a private community center and excluded people who belonged to a particular political party. Would anyone defend those exclusions on the ground that the meetings were held on private property?

As Amanda Shanor writes at the Take Care blog, the public-forum doctrine “may apply to spaces or channels of communication that the government controls or uses for official purposes, even if they are owned by a private entity.” Eugene Volokh, writing at the Washington Post, makes the same observation. The fact that Twitter is a private company doesn’t mean the First Amendment is inapplicable to President Trump’s Twitter account. The key question is whether the President has opened up a forum for expressive activity to the public.

Objection 2: @realDonaldTrump can’t be an official account because Trump established the account before he became president.

Some online commentators think it’s decisive that President Trump created his Twitter account prior to his election. This formalistic approach to public-forum doctrine makes little sense. The appropriate test is a functional one: has President Trump used his account in a way better understood as personal or as official? Thus, in Davison v. Loudoun County, a federal district court allowed a public-forum claim to proceed after noting that a county board member had used her private Facebook page in a manner seemingly official in nature.

Commentators who focus on when President Trump’s account was established may be concerned with protecting President Trump’s own First Amendment rights. But while the President certainly has First Amendment rights, the strength of those rights turns on whether he is speaking in a private capacity or an official one.

In other contexts, courts conduct a functional analysis to disentangle public officials’ private speech from their official speech. For example, lawsuits by government employees alleging that they have been fired in violation of the Constitution on the basis of the content of their speech often turn on how closely the speech relates to the official position they held at the time—the more closely the speech relates to their official duties, the less likely the speech will be found to be protected. Courts have also construed the Freedom of Information Act to require disclosure of correspondence determined to be official in nature even if it was sent over private email accounts. (Think back to the controversy over Hillary Clinton’s private email account.)

The appropriate inquiry here is a functional one, not a formalistic one. That @realDonaldTrump was created before Donald Trump was elected is not determinative.

Objection 3: @realDonaldTrump is best characterized as a personal account.

Eugene Volokh argues that @realDonaldTrump is best understood as a personal account. John Samples of the CATO Institute makes a similar argument: “It is difficult to understand Trump’s tweets as official government communications of the sort that might push his account into designated public forum territory.”

In our view, neither Professor Volokh nor Mr. Samples fully engages the relevant facts. Given the way that President Trump uses the account, it’s hard for us to see how the account can plausibly be characterized as “personal.” To expand on a list that Jameel Jaffer began in an earlier post, here’s why:

  • In the account’s “bio” line, President Trump identifies himself precisely as he does on the @POTUS account, as the “45th President of the United States of America.” The location line says “Washington D.C.” The background image is a photograph of Air Force One.
  • The President uses the account almost exclusively to communicate about government affairs, including international affairs, economic policy, and appointments to senior government positions. This is not an account focused on personal interests, say, television, golf courses, or family.
  • The President makes major official announcements—sometimes for the first or only time—on the account. For example, the President announced at 4:44 a.m. on June 7 that he intended to nominate Christopher Wray for the position of FBI director. The President announced this through @realDonaldTrump before he (or anyone else) announced it through any other channel. @POTUS did not tweet it at all.
  • The President uses the account to engage foreign leaders, to frame world events, to conduct diplomacy, and to state foreign policy goals.
  • The White House press secretary, Sean Spicer, has said that the administration considers the President’s tweets to be “official statements.”
  • The White House social media director, Dan Scavino, promotes @realDonaldTrump, @POTUS, and @WhiteHouse equally as channels through which “President Donald J. Trump . . . communicat[es] directly with you, the American people! #USA.”
  • In the travel-ban litigation, the Ninth Circuit treated tweets from @realDonaldTrump as official statements.
  • Some of the President’s aides are reported to have posted some of the tweets.
  • The President hasn’t limited access to the account to, for example, family members, friends, or business colleagues. To the contrary, the account is open to everyone—except those who are blocked because of their viewpoints.

Professor Volokh argues that some of these factors aren’t sufficient in themselves to establish that @realDonaldTrump is something other than a personal account. Perhaps he’s correct about that, but it doesn’t matter. The question isn’t whether any of the factors individually would be sufficient, but whether the combination of them is. And in our view the answer to that question is clear. As Bob Loeb writes at Lawfare: “Given how the account is used, it is clear that Mr. Trump is writing in his official capacity as President of the United States.” We agree with Loeb—and the White House Press Secretary, the White House Social Media Director, and the Ninth Circuit—that tweets from @realDonaldTrump should be understood as official statements.

The press secretary’s description of the tweets as “official statements” is also more probative than Professor Volokh credits. It’s true, as he says, that the press secretary’s statements do not “bind the president,” but that’s not the claim. It’s not that President Trump is bound by the press secretary’s statement, but that the press secretary’s statement is good evidence of what President Trump intended and how the White House itself views the tweets.

Objection 4: holding that @realDonaldTrump is a public forum would impose unworkable obligations on Twitter.

Noah Feldman and John Samples suggest that recognizing @realDonaldTrump as a public forum would impose unworkable or even unconstitutional obligations on Twitter. Mr. Samples writes: “A determination that Trump’s account represents a designated public forum would greatly undermine Twitter’s ability to establish rules for the digital pseudo-commons it maintains.” And Professor Feldman writes: “A judicial decision forcing Twitter to make Trump unblock followers would actually violate Twitter’s First Amendment rights.”

These critiques suggest a misunderstanding of our complaint. Our quarrel is not with Twitter; it’s with President Trump. Twitter is entitled to allow its users to block whomever they want to, but the President, in using his account in an official capacity, is bound by different rules, one of which bars him from blocking people because of their viewpoints. Any remedy for what we contend is unconstitutional blocking would run against Trump and his subordinates, not against Twitter.

Objection 5: even if @realDonaldTrump is a public forum, the First Amendment doesn’t bar President Trump from blocking trolls.

This argument doesn’t fairly characterize what’s going on. We’ve now spoken with many people blocked by @realDonaldTrump. All of them were blocked soon after they criticized the president or his policies. The president isn’t blocking “trolls”; he’s blocking critics.

The situation might be different if the president were intervening, in some viewpoint-neutral way, to ensure the integrity of the forum he established. The First Amendment surely doesn’t require public officials to surrender online public forums to individuals whose actions would render the forums worthless. Perhaps the President could impose a bar against users who tweet at him more than 100 times a day. But any government intervention in this public forum would have to be viewpoint neutral, and it would have to be applied evenhandedly.

Objection 6: even if @realDonaldTrump is a public forum, the injury to individuals who’ve been blocked is trivial.

The @realDonaldTrump account allows several functions relevant to our letter: (1) it allows President Trump to broadcast messages to the public; (2) it allows members of the public to respond; and (3) it allows members of the public to engage each other directly in the comment threads created by each of the President’s tweets.

When President Trump blocks someone from his account, he interferes with each of these functions. A blocked user can’t read the President’s tweets, respond directly to the President’s tweets, or participate in the discussions surrounding each of the President’s tweets.

Some have pointed out that there are workarounds to the first of these burdens: blocked users can still view the President’s tweets by logging out of their accounts or by logging in under different accounts. That’s true. If President Trump blocked my @AlexanderAbdo account, I could still read his tweets by logging out of that account or creating a new one.

But these possibilities are not constitutionally adequate alternatives for users blocked by President Trump any more than the possibility of reentering a town meeting in disguise, or listening in through an open window, would be a constitutionally adequate alternative for a person wrongly ejected from a town hall.

And, in any event, the objection goes only to the first burden. Even if a person blocked by President Trump can view the President’s tweets, she will be seriously inhibited in her ability to participate in the discussion surrounding his tweets, and this is a substantial constitutional harm, akin to any classic viewpoint-based exclusion of a speaker from a public forum. A blocked person could participate using a new account that hasn’t been blocked, but assuming she maintains the views that caused President Trump to block her in the first instance, the result would be a game of whack-a-mole. Even then, she would be participating not as herself, but in pseudonymous disguise, without her followers or social status to give context and weight to her contributions to the debate.

The president’s practice of blocking critics has a subtler distortive effect, too. By excluding those with opposing viewpoints, President Trump is manufacturing echo chambers in the discussions that surround his posts. Those in the echo chambers aren’t exposed to the views of those who disagree with the President, and they lose the opportunity to engage those people in debate.