President Trump’s Twitter habits have been the subject of controversy since he became a candidate for president in 2015. He used the platform to communicate to the people without the intermediation of reporters, which create new opportunities to reach voters directly and at low cost. His free-wheeling style also gave rise to continual controversy as he tweeted (or retweeted) things that would have destroyed the electoral hopes of any normal candidate.
There have been a lot of complaints, but recently some people literally made a federal case out of it, suing Trump because he blocked them. It sounds like a joke, but the laughter stopped when a federal judge ruled Wednesday that Trump’s actions violated the First Amendment and declared that the practice must cease.
The order was written by Judge Naomi Reice Buchwald of the United States District Court for the Southern District of New York. Buchwald, a 1999 Clinton appointee who took senior status in 2012 blazed a new trail in First Amendment jurisprudence in her opinion (found here). Unfortunately, that trail is a dead end that only takes us farther from any ordinary understanding of what the freedom of speech is and whom it protects.
The plaintiffs, which include a public interest group and seven individuals the president has blocked, claimed that Twitter was a public forum, one from which the president has unilaterally excluded them based on their political beliefs (namely, their criticism of him). Already this requires some creativity no matter which way the ruling goes because most forums discussed in First Amendment terms are physical places. But the Constitution is one of broad principles, and analogies may be made. To call an online forum the equivalent of an actual forum, which was literally a public square in Roman times, is not so much of a stretch.
The mental acrobatics come in where the First Amendment applies to public forums because that Amendment, of course, does not restrict private limits on speech or assembly. It is not enough that Twitter be some kind of virtual gathering space, which it certainly is; it must be a public gathering space. In terms of the precedents relevant to this case, that means a place that is, in Judge Buchwald’s summation “owned or controlled by the government.”
There is a lot of weight resting on that word “or.” Clearly, Twitter is not owned by the government. There is hardly even a decent argument to say that the @realDonaldTrump account is owned by the government, any more than the President’s clothes, books, or other personal property is. All presidents own things in their individual capacity, and that ownership does not pass to the government for the four or eight years in which they are employed in Washington.
But is it controlled by the government? The three people with access to the account (Trump, Dan Scavino, and Sarah Huckabee Sanders) are all government employees. But not everything a federal government employee touches comes under the control of Uncle Sam. Federal employees drive to work in privately owned cars and live in privately owned houses. Even things they use at work, like the clothes they are wearing, do not pass into the public domain. Some government employees have even been known to keep work e-mails on a privately owned server. And even though Scavino and Sanders use the account as a part of their duties, that is little different from a presidential valet picking out the President’s clothes, or the Secret Service staying at a president or vice president’s private home.
This seems all the more obvious when the White House does have a publicly owned account, @POTUS, which passes from president to president. Personal accounts, like @realDonaldTrump or @BarackObama, stay with the person who owns them. Both of those accounts tweeted about things related to the government. And both, like all communications by a president, are subject to the Federal Records Act under the changes to that law passed in 2014, even though they are private accounts. If Trump’s private account was nationalized, it was probably news to him. Knowing Trump, he may ask for retroactive compensation.
Much of Judge Buchwald’s decision hangs on that tenuous definition of control, but the precedents she cites are not exactly on point. In Cornelius v. NAACP (1985) and in Lehman v. City of Shaker Heights (1974), the forums to which plaintiffs sought access were, respectively, a charitable fundraising campaign in federal offices and advertising space on the side of city buses. These were both things to which the public at large had some access, but they were also located physically in government-owned and controlled spaces. The fundraising campaign in Cornelius was not a government project, but it was initiated by President Eisenhower through an executive order. The advertising on city buses may have been open to all market participants within certain guidelines, but it was physical space on government-owned vehicles.
Twitter is not that. Twitter is a private company, free of government ownership or control. It allows any user, even an anonymous user, to create an account, but it imposes its own rules. That is Twitter’s right because it owns the platform. Users who violate its rules and conditions may have their accounts locked or deleted. Twitter also makes certain tools available to its users, including the right to block other users from interacting with them. All of these things are the acts of a private company, not something taking place on government property.
As times and technology change, the Constitution must be interpreted to apply to the new facts. Just as the Fourth Amendment was held to prohibit warrantless searches of cell phones, the First Amendment applies to various segments of the internet. But the analogies have to make sense. A cell phone is a lot like personal papers: both are stores of private information. But is Twitter anything like an ad on a city bus or a charitable solicitation in a federal office building?
Maybe if Twitter had been started by the United States Postal Service, the analogy would ring true. Maybe, even, if social media platforms ever come to be regulated like electric and gas utilities, a quasi-governmental status might make sense. But neither of those things are the facts in this case. The closest analogy of a private Twitter account is not to a city bus or a federal building, but to a privately owned bulletin board. Forcing that square peg into the round hole makes the ruling hard to figure.
So why do it? This case is the latest in a line of many that involve lawsuits as politics by other means. By claiming that Trump is so very different, the plaintiffs in these cases imagine an “emergency” that clouds their judgment and convinces them to make arguments they would never have otherwise made. It sometimes convinces judges to agree with them.
Consider the travel ban cases, where Trump’s words on the campaign trail were held to impute some animus to a ban that changed it from constitutional to unconstitutional through the bizarre legal alchemy of Trump Derangement Syndrome. Or the Emoluments cases, where plaintiffs insist that if representatives of a foreign government rent a room in a Trump hotel, it somehow violates the Constitution. These are laughable legal theories, but when Trump is president, a lot of people pretend to take them seriously.
The Twitter case is less obviously wrong than those, but it is wrong for the same reason. Elites discomfited by the rise of Trump are using any arrow in their quiver, even dull projectiles like lawsuits against Twitter bans, to take a shot at the president. If Hillary Clinton were president and she blocked some Twitter troll who posted hateful words in reply to her post (and this happens on nearly everything she posts) no one would say a word. They would insist that Madam President had the right to not associate herself with such cretins and would likely scold Twitter itself for not blocking them preemptively.
If a normal president had done it, it would have been thought normal. But we do not live in normal times, politically, and when our abnormal president does anything, normal or now, the legal brickbats start flying. This is one more of the same, and will hopefully be deflected by the appeals courts before it tears a new hole in the Constitution.
