Donald Trump is our first Twitter President. He comments on public issues, outlines his plans, and excoriates various villains, all in 280 words or less. In Knight First Amendment Institute v. Trump, 302 F.Supp.3d 541 (S.D.N.Y. 2018), appeal filed, Dkt. No. 18-1691 (2d Cir. June 5, 2018), Judge Naomi Reice Buchwald addressed a challenge by several Twitter users President Trump “blocked” from his Twitter account due to their political views. Judge Buchwald concluded that such viewpoint discrimination violated the First Amendment. The decision has already been referenced by another federal judge, Dingwell v. Cossette, 2018 WL 2926287 *4 (D. Conn. June 7, 2018).
Judge Buchwald began her opinion with a primer on Twitter. Knight First Amendment Institute, 302 F.Supp.3d at 550-52. Twitter provides a platform to post short messages — tweets. Twitter’s platform does not limited public access, making tweets accessible to account-holders and non-account-holders alike. However, Twitter enables accounts holders to interact with each other. With respect to @realDonaldTrump, for example, any Twitter account holders can reply to, retweet, or “like” the President’s tweets. Replies become a part of the “comment thread” associated with the original tweet on the President’s Twitter page. Account holders can also “mention” President Trump, by his Twitter “handle,” in their own tweets. They can also “follow” the President’s account, which enables them to view all tweets the President posts or retweets. These features create an “interactive space” surrounding the tweets. See, id. at 549, 566.
Twitter incorporates two features, the “blocking” or “muting” functions, which enable an account holder to limit the above interactions. The blocking function excludes other users from the interactive space surrounding the tweets originating in the blocking account, thereby removing the blocked account holder’s ability to have any reply associated with the originator’s account. However, blocked users can reply through their own Twitter accounts. Blocked users can neither retweet or “like” the blocking account’s tweets nor “follow” the account. Id. at 551-52. The muting function allows account holders to preclude the muted account’s tweets from appearing in his or her “timeline,” the lists of the account holder’s own tweets as well as those from any accounts the account holder “follows.” Id. at 552.
Judge Buchwald accepted forum analysis as the appropriate analytical framework. Id. at 565-70. Governmental entities generally have no obligation to provide fora for private speech. However, some public spaces are open for expressive activity by tradition. In such “traditional” public fora the government cannot preclude speech. When the government designates a place for expressive activity, it is similarly limited. In a nonpublic forum—a space that “is not by tradition or designation a forum for public communication”—the government has greater flexibility to craft rules limiting speech. The government may reserve such a forum “for its intended purposes, communicative or otherwise, so long as the regulation on speech is reasonable and [viewpoint-neutral]”. Perry Educational Assn v. Perry Local Educators’ Assn., 460 U.S. 37, 46-48 (1983).
Judge Buchwald narrowly defined the forum at issue based on the nature of the “access” plaintiffs sought. Knight First Amendment Institute, 302 F.Supp.3d 565-66. The forum was not the President’s Twitter account, because plaintiffs did not claim any right to send tweets in the President’s name or determine who the President “followed.” Rather, the forum to be analyzed consisted only of certain aspects of the @realDonaldTrump account: “the content of the tweets sent, the timeline comprised of those tweets, the comment threads initiated by each of those tweets, and the ‘interactive space’ associated with each tweet.” Id. at 566.
Even though the Twitter platform was not government-owned, the President and White House Social Media Director Daniel Scavino controlled President Trump’s account. Id. at 566-67. And they exercised such control in their official capacities. The Judge noted that the President identifies the @realDonaldTrump account as a presidential account, and uses it to take actions that he could take only in his official capacity. Id. at 567. The President had used the account to announce nominations to or removals from high-level federal positions and to make foreign policy pronouncements. The President’s creation of his Twitter account long before he assumed the Presidency had limited relevance given the account’s current use for governmental functions. Id. at 569.
The Judge then separately analyzed whether the content of the @realDonaldTrump tweets, the timeline comprised of the account’s tweets, and the interactive space surrounding each tweet constituted “government speech” exempt from forum analysis. The contents of the tweets were clearly Donald Trump’s speech as President, and thus “government speech.” Id. at 571. The timeline of Trump’s own tweets were also “government speech.” Id. at 571-72. However, replies to the President’s tweets, were clearly private speech, making the characterization of the interactive space associated with the President’s tweets, as either a public or non-public fora, critical. Id. at 572.
Distinguishing cases like National Endowment for the Arts v. Finley, 524 U.S. 569 (1998)(claim of entitlement to NEA grant), Arkansas Educational Television Comm’n v. Forbes, 523 U.S. 666 (1998)(claim of entitlement to participate in a debate among candidates for Congress), and Pleasant Grove City v. Summum, 555 U.S. 460 (2009)(claim of entitlement to place permanent monument in a public park), the Judge noted the interactive space associated with tweets is not constrained by the inherent selectivity and scarcity that characterized those cases. Knight First Amendment Institute, 302 F.Supp.3d at 572-73.
Judge Buchwald concluded that the interactive space associated with tweets from @realDonaldTrump was properly characterized as a “designated public forum.” Id. at 574. The account has been held out by President Trump’s Social Media Director as a means through which the President “communicates directly with you, the American people!” Id. The Judge noted that the interactive space is clearly compatible with expressive activity, observing that Twitter is designed to allow users “to interact with other Twitter users.” Id. Indeed, she observed, not only is Twitter’s interactivity one of the platform’s defining features, but the interactive space associated with President Trump’s tweets accommodates substantial expressive activity. Id. at 574; accord, id. at 553 (President Trump’s tweets “frequently receive 15,000–20,000 retweets or more” and “are each replied to tens of thousands of times”).
The Judge found that the blocking of plaintiffs from @realDonaldTrump reflected impermissible viewpoint discrimination. Id. at 575. Defendants characterized the use of the blocking function as the President’s exercise of his own personal First Amendment rights to choose the people with whom he associates and refuse to hear others. Id. In this regard, the Judge Buchwald distinguished use of the muting and blocking functions. She explained that the muting function merely allows the Twitter account owner, in this case the President, to ignore another account holder, thereby exercising his right to refrain from listening. Critically, the muting function “preserves the muted account’s ability to reply to” the President’s tweets. Id. at 576. The blocking function, on the other hand, prohibits the disfavored user from replying to the President’s tweets in the interactive space associated with those tweets, and indeed even prevents the disfavored user from viewing the President’s tweets as a Twitter account holder. Id. This means that the President’s “followers” cannot easily follow blocked users’ replies to the President’s tweet, thus interfering with the blocked accounts holders’ “right to be heard” by the President’s “followers.” Id. at 577. Judge Buchwald acknowledged that the harm from blocking was de minimis. Id.
Judge Buchwald proceeded cautiously in fashioning the appropriate relief, albeit not before firmly asserting her authority to issue an injunction against President Trump and his Social Media Director. Id. at 577-78. But “before exercising [such] jurisdiction,” she noted, a court “must balance the constitutional weight of the interest to be served against the dangers of intrusion on the authority and functions of the Executive Branch.” Id. at 578 (quoting Nixon v. Fitzgerald, 457 U.S. 731, 754 (1982). In her view, “the intrusion on executive prerogative presented by an injunction directing the unblocking of the individual plaintiffs would be minimal.” Id. Any such injunction would be akin to enforcing a non-discretionary “ministerial duty”; it would not “direct the President to execute the laws in a certain way, nor would it mandate that he pursue any substantive policy ends.” Id. at 578.
Nonetheless, she explained, “[a]s a matter of comity, courts should normally direct legal process to a lower Executive official even though the effect of the process is to restrain or compel the President.” Id. at 579 (citing Nixon v. Sirica, 487 F.2d 700, 709 (D.C. Cir. 1973) (en banc). In her view, injunctive relief directed against Social Media Director Scavino would ameliorate the separation-of-powers issues. Id. Ultimately, however, the Judge issued only declaratory relief, concluding that such relief would likely prove sufficient. Id.
Assessing the Decision
Political discussion in the United States suffers from extreme polarization. In part, that phenomenon can be attributed to advancements in communications technologies that facilitate the segmentation of the public in terms of sources of news and information. Cass R. Sunstein noted this development almost a decade ago in Republic.com 2.0. CASS. R. SUNSTEIN, RUPBLIC.COM 2.0 (2009). Allowing Twitter account holders to “block” other users who can provide a different perspective to the account holder’s “followers” increases such polarization. For example, followers of @realDonaldTrump need not expose themselves to contrasting views. (Granted, given the thousands of replies to President Trump’s tweets surely not all are supportive of his views.) While those who disagree with the President can reply to his tweets via their own Twitter accounts after viewing the President’s tweets (which are accessible to via the general access provided to non-account holders), the President’s followers will not likely search outside the President’s Twitter account for responses to his tweets.
Moreover, such segmentation of the public furthers the use of the “known lie” for political purposes, a practice “at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected.” Garrison v. Louisiana, 379 U.S. 64, 75 (1964)(“At the time the First Amendment was adopted, as today, there were those unscrupulous enough and skillful enough to use the deliberate or reckless falsehood as an effective political tool . . .”) When the President spreads untruths via Twitter for political purposes, a response is less likely if the President can “block” those who do not share his perspective or who can unmask the lie. The same is true for other public officials.
But the argument that government can structure private communications media to ensure that audiences are exposed to contrasting viewpoints has been rejected by the Supreme Court. Such arguments were proffered in the 1970’s in support of “right to reply” statutes that required newspapers to print responses from those they attacked. In Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), the U.S. Supreme Court held such statutes unconstitutional. Cass Sunstein, and others, attacked Tornillo, bringing to bear arguments similar to those outlined above — urging that Government be allowed to counteract “market dysfunctions” afflicting the “marketplace of ideas.” CASS R. SUNSTEIN, DEMOCARCY AND THE PROBLEM OF FREE SPEECH xviii-xx, 18-19, 107-08 (1993). The Court reiterated its rejection of such a ”market correction” approach in Turner Broadcasting System v. FCC, 512 U.S. 622, 637-40 (1994)(“Turner Broadcasting I”).
The Court did accept the argument in upholding the “fairness doctrine” applicable to television and radio broadcasters. Red Lion Broadcasting v. FCC, 395 U.S. 367 (1969). (It was also accepted the argument outside the media context, in Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980), where the Court held that states could require shopping malls to open their public spaces to expressive activity without running afoul of the First Amendment.) But Red Lion was heavily based on a “scarcity” rationale, which is inapplicable in the case of Twitter. In any event, both the FCC and the courts have questioned Red Lion’s scarcity rationale as a justification for limiting broadcasters’ First Amendment rights, Telecommunications Research and Action Center v. F.C.C., 801 F.2d 501, 508-09 (D.C. Cir. 1986), cert. denied, 482 U.S. 919 (1987); In re Complaint of Syracuse Peace Council, 2 FCC Rcd. 5043, ¶¶76, 82-97 (1987), pet’n for review denied, Syracuse Peace Council v. FCC, 867 F.2d 654 (D.C. Cir. 1989), and the FCC has determined that with the expansion of communicative media the “fairness doctrine” is no longer appropriate. In re Complaint of Syracuse Peace Council, 2 FCC Rcd. at ¶¶ 71=72, 99.
There are differences between Knight First Amendment Institute and Tornillo. There were limitations on the physical capacity of the media in Tornillo, the newspaper had only so much space. Such spatial limitations do not plague the interactive space associated with Twitter accounts. However, in our digital age the constraint on the volume of messages that can be accommodated is not physical, but psychological, namely recipients’ capacity to process communications. Arguably the audience’s conceptual limitations, in terms of processing information, create a different type of scarcity. But such limitations are no less real, and ones that creators of intangible expressive spaces should be allowed to consider.
There are other differences between Knight First Amendment Institute and Tornillo. It is less clear who actually is entitled to exercise control of the expressive space at issue, the Twitter account holder or Twitter itself. And while the establishment and continued existence of a newspaper requires skill and hard work, it is not clear that creation of a Twitter account reflects merit or hard work in quite the same way. The burden of creating an expressive space could be used to justify greater editorial control by its creator.
Even accepting forum analysis as the proper framework, the District Court’s narrow definition of the forum can be questioned. The putative forum is perhaps better viewed as the President’s Twitter account as a whole. Of course, Twitter’s engineers, not the President or any particular account holder, designed the Twitter platform. And while the platform as a whole seeks to ensure that individuals can follow whomever they like, the platform is designed to provide some control, albeit limited, with respect to the replies that appear in the conversations associated with an account holder’s tweets. The communications threads associated with a Twitter account may indeed appear to be a public forum open to all, but that is not its design. It is designed to given the account holder one element of control (apart from the content and timing of the account holder’s tweets), namely the power to decide who can participate in the discussion through the account holder’s account. Such a choice itself qualifies as an exercise of freedom of expression. Thus in Turner Broadcasting I, 512 U.S. at 636, the Court noted that by exercising editorial discretion over which stations or programs to include in their repertoires, cable operators are engaging in expressive conduct.
Thus the interactive space associated with a Twitter account is designed to represent the account holder and those who find the account holder worthy of following. The account holder can appeal to “followers” and seek to ensure their continued interest not only by the content and timing of tweets, but also by “moderating” the accompanying discussion through use of the privilege to exclude participants who do not appeal to the account holder’s audience.
The exercise of the moderator’s limited prerogatives may be benign, for instance excluding people who wish to tweet about a subject that is not the focus of interest of the account holder or the account holder’s followers. Or the account holder may exclude those who denigrate others or spread falsehoods. Perhaps less benign is an account holder’s use of the blocking function to exclude views followers find uninteresting or contrary to their perspective. In any event, account holders can wield only one “moderator’s” tool in seeking to ensure that his or her Twitter account continues to appeal to “followers,” the power to exclude participants whose participation conflicts with the conception or the image of the account. After all, the original tweets and accompanying chatter are associated with the account-holder’s account, not the general Twitter account.
Of course, President Trump is not the only elected officeholder or political figure who maintains a Twitter account or uses it in connection with his or her official duties. View Twitter’s Government Officials & Agencies page here. Elected officials have Free Speech rights as well. Not only do represent their constituents by urging public bodies or other public officials to take certain actions, but their speech is critical to the process by which officials seek re-election. Tri-Corp Housing Inc. v. Bauman, 826 F.3d 446, 449 (7th Cir. 2016). Presidents, no less than other elected officials, use communications to rally their supporters and mobilize their political parties. See, Kevin Drum, Presidents and the Bully Pulpit MOTHER JONES (May 13, 2012). Even in the context of presidential communications, the D.C. Circuit has distinguished the personal and institutional aspects of the Presidency. In Sherrill v. Knight, 569 F.2d 124, 129 (D.C. Cir. 1977), the Court was careful to distinguish reporter’s entitlement to equal access to the White House press room from a journalist’s entitlement to an equal opportunity to get a personal interview with the President.
Many elected officials block users from their Twitter accounts, Leora Smith & Derek Kravitz, Governors and Federal Agencies Are Blocking Nearly 1,300 Accounts on Facebook and Twitter, Propublica (Dec. 8, 2017). Thus Judge Buchwald’s ruling raises the question of the extent of its applicability to federal, state, and local elected officials more generally. Perhaps Judge Buchwald’s ruling in Knight First Amendment Foundation is limited to the President. Or perhaps it is limited to chief executives, and thus encompasses governors and mayors.
With respect to the President, it has been said the Presidency is a unique office — a unitary executive at the apex of the national government. See, Clinton v. Jones, 520 U.S. 681, 688-89 (1997); id. at 711-12 (Breyer, concurring); Mary E. Stuckey, The President As Interpreter-In-Chief 1 (1991)(“The President . . . tells us stories about ourselves, and in so doing he tells us what sort of people we are, how we are constituted as a community.”); Katherine Shaw, Beyond The Bully Pulpit: Presidential Speech In The Courts, 96 Tex. L. Rev. 71 (2017)( The President’s words play a unique role in American public life. No other figure speaks with the [same] reach, range, or authority . . .”). The federal government’s other elected officials (apart from the Vice President) are members of multi-member legislative bodies. While the Presidency melds together the individual office holder with a governmental institution, the Executive Branch, that is not true for legislative bodies. Perhaps such a contrast could justify some distinction in the treatment of legislators’ and chief executives’ Twitter accounts. The unique power of the President to set the national agenda and stimulate debate could justify distinguishing the President’s use of Twitter from that of state and local elected executive officials. Notably, however, neither of these rationales for limiting the ruling’s reach appear to have been a part of the District Judge’s rationale for her decision.
Assuming the Second Circuit resolves the standing issues favorably to plaintiffs, it will soon have an opportunity to address the issues raised by the President’s use of Twitter’s “blocking” functions and its implications for other elected officials.