Many of the strange situations we encounter thanks to the digital media era are really just old problems in new clothes: Your employer was able to find out if you got drunk and embarrassed yourself at a party long before Facebook, for example. But some of the questions of our modern age really are unique. Among them, now: If the President of the United States gets annoyed enough with you that he blocks you on Twitter, has the government just violated your Constitutional rights?
When you think about social media, you probably think about your friends and family, or maybe a brand or company you’ve interacted with. But the question of government presence on private platforms like Twitter, Facebook, and Instagram opens up a can of worms that really is unique to our age.
Can official government accounts block people? What if they only broadcast, and don’t interact? Does it matter if the account is for an agency (“The FCC”) or a person (“Ajit Pai, who happens to be FCC chairman”)? What say does the platform have over the content shared on it when that content comes from official sources?
These are some of the questions we’re now facing — and now, we’re facing some of them in a very pressing, very legal way.
Because the Knight First Amendment Institute — a non-partisan, non-profit organization founded by Columbia University and the Knight Foundation — says that when the President blocks you, that violates your First Amendment rights, and he needs to stop blocking people or they’ll sue.
That’s the gist of a letter [PDF] the Knight Foundation sent to the White House this week.
“Dear President Trump,” the letter begins. “Your vigorous use of Twitter to comment about matters mundane as well as momentous has afforded Americans valuable insight into your policies, actions, and beliefs.”
But, it continues, that means that the Presidential accounts are a “‘designated public forum’ for First Amendment purposes,” and therefore “the viewpoint-based blocking” of individuals who “disagreed with, criticized, or mocked you or your actions as President” is unconstitutional.
Not only can people the President has blocked not interact with him, the Knight Foundation points out, but also they have a very hard time seeing what he is saying: They cannot view his Tweets on his timeline, nor can they easily find them in search results. And this is a problem.
No, Twitter’s not the government…
That may seem like an unusual legal stance to take. Twitter, after all, is a business, not a government entity. And that means that generally, your rights and ability to Tweet something exist at Twitter’s discretion.
People who get banned for hate speech or harassment often complain about their “free speech” rights, but that only means the government can’t stop you from doing something. You don’t have unlimited free speech rights when you’re on private property: The owner of the house gets to make the rules, and that goes for digital private property too.
So under Twitter’s rules, if you’re a jerk to anyone, that person has an absolute right to block you. You can yell, but that doesn’t mean the target of your ire has to listen to your abuse.
From one point of view, then, Donald J. Trump, on his personal @realDonaldTrump account, is a Twitter user like any other: If he doesn’t want to see you yelling at him on Twitter, he has the tools available to block you. But is he actually allowed to use them?
Because when it comes to the President’s Twitter account, well, that’s a little different. While Twitter may be a private platform, Trump is using it in his official capacity. And “President of the United States” is about as public and governmental as a job can possibly be.
There is also an official administration Twitter account, @POTUS, that the Obama administration first created in 2015. That one is, as it points out in its bio, subject to federal record-retention laws and is an official government communication voice, so the boundaries and obligations around it seem more clear.
…but also in this case, it kind of is.
The President uses his personal Twitter accountto express what are clearly personal opinions, such as his rant yesterday against the “Fake News of CNN, NBC, ABC, CBS, washpost or nytimes.”
But he also regularly blends the professional and the personal. For him, the two are intertwined inextricably. Just this morning, for example, he used the platform to formally announce his next choice for Director of the FBI, Christopher Wray.
Since the beginning of the administration, it has been comparatively unclear whether everyone else in the world should consider presidential Tweets from Trump’s personal account to be official statements or not. But then White House Press Secretary Sean Spicer helpfully confirmed just this week that anything Trump Tweets is as official as it gets.
“The President is President of the United States,” Spicer said in a press briefing Tuesday, “so they are considered official statements by the President of the United States.”
Spicer’s confirmation would seem to bolster the Knight Foundation’s argument that Trump’s personal Twitter account is, in fact, a public space.
“When the government makes a space available to the public at large for the purpose of expressive activity, it creates a public forum from which it may not constitutionally exclude individuals on the basis of viewpoint,” the letter reads.
“This is true even if the space in question is ‘metaphysical’ rather than physical; even if the space is privately rather than publicly owned; and ‘even when the limited public forum is one of the government’s own creation.'”
“This is a context in which the Constitution precludes the President from making up his own rules,” Jameel Jaffer, the Knight Institute’s executive director, said in a statement.
“Though the architects of the Constitution surely didn’t contemplate presidential Twitter accounts,” Jaffer added, “they understood that the President must not be allowed to banish views from public discourse simply because he finds them objectionable. Having opened this forum to all comers, the President can’t exclude people from it merely because he dislikes what they’re saying.”