June 8, 2017

Earlier this week, a First Amendment group based at Columbia University sent a letter to President Trump demanding that the commander in chief unblock two of his critics on Twitter or face the possibility of legal action.

The letter, which was published by the Knight First Amendment Institute, quickly garnered coverage from The New York Times, Wired and Poynter because it raises an important question not yet settled by the courts: Are social media profiles for politicians “public forums” for free expression protected by the First Amendment? Or can President Trump and other public figures block their critics without running afoul of the Constitution?

For more, Poynter asked one of the signitories on the letter. Jameel Jaffer is the founding director of the Knight First Amendment Institute and the former deputy legal director at the American Civil Liberties Union. In an interview with Poynter, he expanded on the institute’s justification for sending the letter and touched briefly on the possibility of legal action against the president.

Can you tell me a little bit more about the decision to send this letter? How did the institute get in touch with the two clients it’s representing? Why were they selected?

We sent the letter because we think the President’s Twitter account constitutes a designated public forum under the First Amendment and that the President’s blocking of users because of their viewpoints is unconstitutional. We reached out to a number of people who had indicated on Twitter that they’d been blocked from the President’s most-followed account, @realDonaldTrump. We filed the letter on behalf of a subset of the people we spoke to. If we file litigation—and we haven’t yet decided to do that — we may file on behalf of a broader group.

The letter is getting a lot of attention because President Trump’s Twitter account is arguably the most important social media account in the world, but the argument we’re making extends to other public officials’ social media accounts as well. Elected officials all over the country are using social media to communicate with their constituents, which is great, but some of those officials have adopted Trump’s practice of blocking individuals who disagree with them. (Charles Ornstein at ProPublica wrote a really good story about this yesterday.) If elected officials use their accounts to communicate with the public at large about government affairs, their silencing of critics raises the same First Amendment concerns that we describe in our letter to President Trump.

In the institute’s statement, you call President Trump’s Twitter account a “public forum.” Is there legal precedent for social media accounts qualifying as public forums?

It’s black letter law that the government can’t eject someone from a designated public forum on the basis of viewpoint, but the question of whether and in what circumstances a public official’s Twitter account constitutes a designated public forum is not a question that courts have yet confronted. One federal judge in Virginia did hold last month that a public official’s Facebook page could constitute a public forum for First Amendment purposes. (The opinion is here.) With so many elected officials now using social media, I’m sure there will be many more cases.

The account that blocked the Twitter users mentioned in your letter is Donald Trump’s personal account, not his POTUS account. Does that make a difference?

This is not, by any stretch of the imagination, a “personal” account. The president uses this account to communicate directly with Americans about his decisions and policies. He tweets about economic policy, international affairs, and appointments to senior government positions. The president hasn’t limited access to the account; the account is open to essentially everyone. In addition, the press secretary has indicated that the administration considers the President’s tweets to be “official statements.” Some of the president’s aides reportedly have access to the account, and some of the president’s tweets are apparently written by those aides. And the president sometimes announces important decisions for the first time on this account. For example, he used @realDonaldTrump to announce at 4:44 a.m. yesterday morning that he would be nominating Chris Wray as FBI director.

If the President wants to set up a personal account, he’s certainly free to do that, and the First Amendment wouldn’t be an impediment. The President could set up a Twitter account that excluded everyone but close family members, or business associates, or golf partners. This isn’t a personal account. This is an account that the President uses to communicate about government policy with millions of people. Here’s a tweet from earlier this week:

Twitter is a publicly traded company, not a government institution. Why would it be subject to the First Amendment?

Our complaint isn’t about Twitter; it’s about the way President Trump is using Twitter. And our argument isn’t that Twitter is a public forum, but that President Trump’s Twitter account is. The important point is that the nation’s most senior official has established a forum for expression and opened it up to the public at large. Having done that, the First Amendment bars him from excluding people from that forum based on their viewpoints.

The fact that Twitter is a private company isn’t material. If President Trump rented out Yankee Stadium to deliver weekly addresses to—and hear questions from — a crowd of thousands, and then selectively denied access to people because of their disagreement with his policies, we’d be making essentially the same arguments, and the First Amendment would apply in essentially the same way.

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Benjamin Mullin is the managing editor of Poynter.org. He previously reported for Poynter as a staff writer, Google Journalism Fellow and Naughton Fellow, covering journalism…
Benjamin Mullin

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