Patterico's Pontifications

7/9/2019

US Appeals Court To Trump: Blocking Critics On Twitter Violates Constitution (ADDED)

Filed under: General — Dana @ 2:03 pm



[guest post by Dana]

We’ve argued ad nauseam about President Trump and his compulsive tweeting. Debates have included whether the dangers of someone in his position (and with his disposition) publicly opining with little restraint is outweighed by the claimed benefit of having the President of the United States communicate directly to the American people. While his advisors and members of the GOP have urged him to refrain from using the platform, he persists. And after two and a half years of this president tweeting about, well, everything that pops into his head, we all know he’s not just tweeting about innocuous things like the swampy weather in D.C. Far from it. He regularly tweets about global events, his agenda, policies, issues warnings to foreign leaders, engages in dangerous games of one-upmanship with thug dictators, attacks the media and members of the media, attacks Democrats, Republicans, and everything and everyone else in between. And the voluminous amount of tweeting about so many issues, opened him up to condemnation, ridicule and all manner of foul comments. As a result, President Trump blocked his critics.

Today the U.S. appeals court said Trump had violated the Constitution, calling it “unconstitutional viewpoint discrimination”:

U.S. President Donald Trump violated the Constitution by blocking people whose views he disliked from his Twitter account, a federal appeals court ruled on Tuesday.

In a 3-0 decision, the 2nd U.S. Circuit Court of Appeals in Manhattan said the First Amendment forbids Trump from using Twitter’s “blocking” function to limit access to his account, which has 61.8 million followers.

“The First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise-open online dialogue because they expressed views with which the official disagrees,” Circuit Judge Barrington Parker wrote, citing several Supreme Court decisions.

Tuesday’s decision upheld a May 2018 ruling by U.S. District Judge Naomi Reice Buchwald in Manhattan, which prompted Trump to unblock some accounts.

The Justice Department has called her ruling “fundamentally misconceived,” saying Trump used Twitter to express his views, not to offer a public forum for discussion.

Parker, however, said Trump’s account bears “all the trappings of an official, state-run account” and is “one of the White House’s main vehicles for conducting official business.”

Last year, the Justice Department argued that the ruling was “fundamentally misconceived,” and that since becoming the president, Trump was simply continuing to use his Twitter account in the same way as he always had: sharing his thoughts and views about any number of topics. The Justice Department also asserted that President Trump’s account belonged to him “in his personal” capacity” and “not the control of the government,” thus:

… when he exercises the power enjoyed by all Twitter users to block other users from their own accounts, he is not using any authority belonging to or conferred on him by the federal government,” the Justice Department’s legal brief said.

The appeals court also took into consideration that it was the President’s own spokesman, who confirmed that President Trump’s tweets are “official statements”:

“The President is the President of the United States, so they’re considered official statements by the President of the United States.”

Justice Department spokeswoman Kelly Laco said in a statement to NPR, “We are disappointed with the court’s decision and are exploring possible next steps.” President Trump, however, has not tweeted about the ruling. Yet.

The Knight First Amendment Institute at Columbia University et al v Trump et al, 2nd U.S. Circuit Court of Appeals, No. 18-1691 case is here. The 2nd U.S. Circuit Court of Appeals ruling is here.

ADDED: I’m adding this piece by David French, wherein he explains how the 2nd U.S. Circuit Court of Appeals got it wrong in their ruling. I’m copying heavily from it as it’s insightful:

Boiled down to its essence, the court’s reasoning contained two key elements. First, it ruled that Trump’s Twitter account represents an outlet for official communications and interactions that is controlled by President Trump. Second, it found that under these circumstances, Trump’s decision to block users represents impermissible state action undertaken to suppress dissent.

The first element is fundamentally mistaken. By no traditional legal measure of “control” does Trump control his Twitter account. Twitter owns and controls his account, and he has no legal right to wrest control of it from Twitter. The court’s misunderstanding of the platform is made evident by this deeply flawed analysis:

The fact that government control over property is temporary, or that the government does not “own” the property in the sense that it holds title to the property, is not determinative of whether the property is, in fact, sufficiently controlled by the government to make it a forum for First Amendment purposes. See Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 547‐52 (1975) (holding privately‐owned theater leased to and operated by city was public forum). Temporary control by the government can still be control for First Amendment purposes.

There is no “control” at all, temporary or otherwise. When a politician rents a theater or other private venue, there is typically an exchange of money and a rental agreement that explicitly grants enforceable legal rights to access the property and control others’ access to the property, and — critically — limits the landlord’s power during the course of the rental.

Compare that level of control to the absolute lack of rights the user has under Twitter’s terms of service:

We may suspend or terminate your account or cease providing you with all or part of the Services at any time for any or no reason, including, but not limited to, if we reasonably believe: (i) you have violated these Terms or the Twitter Rules or Periscope Community Guidelines, (ii) you create risk or possible legal exposure for us; (iii) your account should be removed due to prolonged inactivity; or (iv) our provision of the Services to you is no longer commercially viable.

There is no exchange of money, the user has no right to the platform, and Twitter can not only eliminate your access entirely but censor any single tweet. If it chooses, it can even remove Trump’s ability to block, mute, or take any other action. And that’s not all — when you use Twitter, your speech isn’t even purely “your” speech any longer. Twitter grants itself the right to your communications, too…

Writing in response to the trial court’s ruling against Trump last year, law professor Greg Dolin compared Twitter to a radio call-in show that is hosting a government official as a guest. The politician has no right to be on the show, the host can send the politician packing at any time, and the host has ultimate control over not only the politician’s presence but also any callers’ speech. In other words, Trump remains on Twitter entirely at Twitter’s discretion.

In that circumstance, there is no “public forum.” There is instead a public official using a private platform to attempt to amplify his specific message, with the permission of the entity that controls the platform. The court’s ruling, in this circumstance, represents government intervention in Twitter’s control of its own service. The court is overriding the permissions Twitter gave its own user.

Moreover, the court gives short shrift to Trump’s own free-speech rights under the government-speech doctrine. Again, to borrow one of Professor Dolin’s analogies, “If a politician is holding a rally in a park (a traditional public forum), it doesn’t follow that he must permit critics to share the stage with him.” The Twitter thread beneath any tweet can undermine or amplify the president’s chosen message. So long as Twitter grants the user the ability to regulate his or her Twitter replies, then that regulation is an integral part of the user’s expression…

Read the whole thing.

(Cross-posted at The Jury Talks Back.)

–Dana

27 Responses to “US Appeals Court To Trump: Blocking Critics On Twitter Violates Constitution (ADDED)”

  1. Hello.

    Dana (bb0678)

  2. Trump could tweet and then just ignore all the replies. But I suppose if he did that, he would not be Trump.

    On another Twitter front
    https://hotair.com/archives/ed-morrissey/2019/07/09/hmmm-twitter-finally-actioned-farrakhan-tweet-jewish-termites-publishing-new-rules/

    Kishnevi (65f98d)

  3. Someone so thin skinned and self-centered should be the last person on Twitter. That he is the President of the United States, even more so. Every other president has been able to communicate with the American people when they have wanted. There are plenty of outlets available to him to do so. Yet Twitter is his chosen go-to. Further, he isn’t the least bit concerned about any viewpoint discrimination or First Amendment rights. That is what is so troubling about the whole thing. He is POTUS, for god sake.

    Dana (bb0678)

  4. “Or at least… until today, courtesy of a 2nd U.S. Circuit Court of Appeals decision which essentially guts Twitter’s sometimes abusive Terms of Service, whether the court realizes that or not.

    If the First Amendment applies to Twitter, and therefore Twitter can’t allow public officials to block users even from their personal accounts, then it follows that, well, the First Amendment applies to Twitter, and therefore Twitter can’t censor political content or ban users for their political views.”

    —- Stephen Green

    Colonel Haiku (0e0056)

  5. Trump is unusual in that unlike 99% of other national politicians, he probably composes at least 50% of his Tweets and I wouldn’t be at all surprised if he reads at least 50 or so replies to each tweet, just because he is desperate for the approbation that he is sure he will receive. I know there are at least a few other politicians on Twitter who operate this way — Ted Lieu comes to mind — but it certainly is curious behavior.

    JVW (54fd0b)

  6. law professor Greg Dolin compared Twitter to a radio call-in show that is hosting a government official as a guest.

    And in New York City, both Mayor Giuliani and Mayor Bloomberg used to regularly be a guest on a radio call in show, usually taking questions, once a week, on Fridays at about 11 am.

    You could say everything they said was official.

    Sammy Finkelman (102c75)

  7. “If the First Amendment applies to Twitter”

    Twitter wasn’t a party in this ruling.

    Davethulhu (fab944)

  8. 7… duly noted, and time will tell.

    Colonel Haiku (0e0056)

  9. The same press that covered up Weinstein and Epstein for at least a decade, that set upon the Covington boys like jackals that deplatformed the one who pointed out the fraud that was nathan Phillips,

    Narciso (23765c)

  10. JVW,

    I think it’s easy to distinguish which tweets come directly from Trump, and which come from his staff, and I’m guessing his personal tweets are more than 50% of the total number. I think his constant tweeting is more about him needing a fix of adoration throughout the day more more than something newsy… Of course, he likes to troll his opponents too…

    Dana (bb0678)

  11. You expect the press to tell the truth, about. The immigration pause, about the war on Islamic state, about the Iran deal, no you need to use a megaphone.

    Narciso (23765c)

  12. You expect the press to tell the truth, about. The immigration pause, about the war on Islamic state, about the Iran deal, no you need to use a megaphone.

    Was this intended to have meaning?

    Colonel Klink (Ret) (6e7a1c)

  13. “The First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise-open online dialogue because they expressed views with which the official disagrees.”

    Yup. That just about kills it:
    1. All manner of official purposes;
    2. Otherwise open dialogue; and
    3. Only persons who express disagreeable views are excluded.

    Trump is in an even worse position First Amendment-wise than if it were a physical town hall because the “hecklers” are not preventing him in any wise from being heard, nobody (including him) has to “hear” them if they don’t want to, and the only cost is to Twitter’s bandwidth.

    And why Twitter was not an indispensable party in this case, I don’t know.

    nk (dbc370)

  14. Three examples of egregious uncorrected errors by the press, I have more examples

    Narciso (23765c)

  15. Some of this isn’t very hard. Hopefully someone will create a document that may enumerate these things somewhere. Just a suggestion, something like…

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    Colonel Klink (Ret) (6e7a1c)

  16. It’s not a law or even an executive order, but our betters know best occasionally dinging farrakhan while letting Hezbollah and Hamas recruit

    Narciso (23765c)

  17. Oh, thanks for the link, JRM.

    Dana (bb0678)

  18. The decision seems facially wrong to me…if only for the reason that it’s Trump’s “private” Twitter account. If the POTUS “official” account was blocking people for dissent, a stronger case could be made.

    Demosthenes (7fae81)

  19. It’s official administration policy on the account, according to the administration, which is why all the times they claimed it so was introduced into evidence.

    Colonel Klink (ret) (6e7a1c)

  20. @ Col. Klink, #21:

    Now that I’ve had a chance to sleep and think on the case a bit, both my initial thought and your response are immaterial. The issue is whether a public official blocking someone on Twitter constitutes the selective closing of a public forum. When considering how Twitter works, I think it’s plain that it does not.

    Blocking someone on Twitter does not prevent them from reading what you wrote, or what you write subsequently…all they have to do is access your account through a search engine while signed out. They are also free to talk about it with other people. Nor does a block prevent them from replying to what you said, either by starting a new thread on their own account or by tweeting at you (though you won’t see it). They can even reply to you directly…simply by creating a new account.

    So it’s hard to see how anyone’s First Amendment rights are infringed by Trump blocking them. This is not analogous to members of the city council stopping you from using the microphone to ask your questions…because there is not just one microphone, there is an infinite number of them. Just grab another. And it is not analogous to kicking someone out of the room and preventing them from participating in the discussion…because on Twitter, that is literally impossible for anyone other than Twitter itself.

    I’m no fan of Donald Trump. But this decision is, at best, misguided — based on a fundamental misunderstanding of the important differences between real-world forums and their technological counterparts. And at worst, it is nakedly partisan, made by a judge who understands the differences but has an ideological axe to grind.

    Demosthenes (7fae81)

  21. To me, the principle is like the City Council microphone. Citizens can protest on the City Hall steps or go to the media, but City Hall is a public forum that should not block anyone. Similarly, people can respond to Trump’s tweets in other forums or ways, but he is the President and he uses his Twitter account to tweet about his official decisions, duties and opinions. IMO he shouldn’t be able to use it to support his Presidency while shutting out criticism.

    DRJ (15874d)

  22. What French said was technically true, that Twitter controls Trump’s account but, as president, Trump has the power to shut down Twitter or change how the company does business. For lesser political figures with less power, French has a point.

    Paul Montagu (fc91e5)

  23. To me, the principle is like the City Council microphone.

    Right, except that it’s not. If the city council takes away the public microphone and kicks you out, then you have no way of getting back into that forum. So even if you can speak in other times and in other ways, you have lost an opportunity to speak because of a government decision. If I block you on Twitter, you can create another account. And if I block that account, you can create another account. Again, it’s infinite microphones as opposed to just one. And there’s always a way back into the forum.

    I have never thought it was advisable for Donald Trump to use his personal Twitter account to talk about his activities as president. But he does. And since he does, we now have to deal with this question. And since we do, I feel compelled to point out that Trump did not lose his constitutional rights to freedom of speech or freedom of association when he became president. The only possible reason for forbidding him from blocking people from his personal Twitter account if he pleases is that it would infringe on their First Amendment rights. And so far, you haven’t made that case. Neither did the judge.

    Demosthenes (7fae81)

  24. Now that I’ve had a chance to sleep and think on the case a bit, both my initial thought and your response are immaterial. The issue is whether a public official blocking someone on Twitter constitutes the selective closing of a public forum. When considering how Twitter works, I think it’s plain that it does not.

    The court disagree’s. The public official blocking users does limit the users ability to petition the Government for a redress of grievances on the platform that the official has chosen to interact in a bidirectional manner.

    Also, as with most things Trump, his and his administration’s inability to think about the consequences of their actions, using Twitter as an official interaction method, and claiming verbally and in writing that it is, in fact, official; then trying to argue the counterfactual in front of a the court, have shot themselves in the foot. See census case, Muslim bans, etc.

    Colonel Klink (Ret) (6e7a1c)

  25. The court disagree’s.

    Since my point involves the claim that the court’s decision was wrong, any attempt to refute me by citing the decision is an appeal to authority — hence, fallacious reasoning.

    The public official blocking users does limit the users ability to petition the Government for a redress of grievances on the platform that the official has chosen to interact in a bidirectional manner.

    This statement manages to be both misleading and beside the point.

    How it is misleading: Blocked users’ ability to contact Trump is limited only insofar as they cannot use their blocked account to directly see or interact with Trump’s tweets. This is not a substantial limit; it is, at most, a mild irritant. There are plenty of ways around the block. I mentioned some of them already, and on p. 11 of her decision, the judge mentions those and others as well. She notes that the plaintiffs contend these workarounds are “burdensome,” which I contend does not reflect well on the capabilities of the plaintiffs.

    How it is beside the point: Plaintiffs were not using their accounts and tweets to “petition the Government for a redress of grievances.” Had they been, it would have been noted in the decision, where the word “petition” is not found at all. They only claim to have been criticizing Trump and/or his policies. So this is a straightforward freedom of speech case…and while plaintiffs obviously have a First Amendment constitutional right to criticize both, they do not necessarily have a constitutional right to criticize in any time, place, and manner that they might wish. The question is whether Trump’s blocks impermissibly infringed on their protected speech. You obviously think they did; I obviously disagree. Fine. But “petition” has nothing to do with it.

    …his and his administration’s inability to think about the consequences of their actions…have shot themselves in the foot.

    Here, I suspect, we are in complete agreement. This whole situation need never have arisen if Trump used the @POTUS account for official business, instead of his personal account. To the best of my knowledge, Obama never did this.

    Demosthenes (7fae81)


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