July 17, 2017

In an act of defiance against Donald Trump’s Twitter obsession, the Knight First Amendment Institute sued the president last week on behalf of seven people he’s blocked. That makes for a good headline, but what’s the likelihood of the Knight Institute actually winning the case?

It’s complicated. While some legal experts think there’s a good chance the court will rule in the Knight Institute’s favor, determining that Trump blocking people on Twitter is an unconstitutional violation of free speech, some believe it’s still too close to call.

“It all depends on whether the court agrees that Trump’s Twitter account is, in essence, a governmental forum,” said Wayne Giampietro, a Chicago-based attorney and longtime member of the First Amendment Lawyer’s Association. “It seems to me it is. He’s communicating to the world these days by sending these tweets.”

At the center of the Knight Institute’s case is the claim that the @realDonaldTrump account is a public forum that is constitutionally protected from viewpoint-based speech discrimination. By blocking people from viewing and engaging with his tweets, the institute argues that Trump is preventing people from exercising their First Amendment right to free speech, as well as their right to petition the government for a redress of grievances.

“President Trump’s Twitter account has become an important source of news and information about the government and an important forum for speech by, to, or about the president,” said Jameel Jaffer, the Knight Institute’s executive director, in a press release sent to Poynter last week. “The First Amendment applies to this digital forum in the same way it applies to town halls and open school board meetings. The White House acts unlawfully when it excludes people from this forum simply because they’ve disagreed with the president.”

The lawsuit also contends that Trump has violated the speech rights of those he hasn’t blocked on Twitter because they can only participate in a public forum free of critical voices. Giampietro, who said he believes the Knight Institute will probably prevail, said Trump’s seemingly indiscriminate use of the block feature on Twitter likely constitutes a viewpoint-based violation of speech.

“There doesn’t appear to be any rational basis on why he blocks people from his account,” he said. “If he is saying certain individuals can’t have access to (his tweets) and can’t be heard … then I think he is interfering with their First Amendment rights to be heard.”

The lawsuit comes a month after the Knight Institute, a nonpartisan, nonprofit organization established by Columbia University and the John S. and James L. Knight Foundation, sent a letter to Trump threatening legal action if he did not unblock Twitter users who he’d shut out because of their views. After the letter was sent, Eugene Volokh, a law professor at the University of California, Los Angeles, wrote a piece for The Washington Post in which he argued that Trump blocking people on Twitter isn’t quite a violation of the First Amendment. He wrote:

Government officials can act in two different capacities: on behalf of the government and expressing their own views … Certainly Trump’s actions in moderating @RealDonaldTrump weren’t constrained by the First Amendment before he was elected; they presumably wouldn’t be if he runs for reelection, either.

This distinction between government and private speech will be key to determining whether or not restricting some users from engaging with @realDonaldTrump is unconstitutional — one that has been blurred in the past several weeks.

In early June, White House Press Secretary Sean Spicer said the president’s tweets were official White House statements. Based on those comments, it would follow that Trump’s tweets are official government speech. But Volokh told Poynter that it doesn’t matter — it’s still fundamentally up to the court to determine how to classify Trump’s Twitter account.

“It’s up to a court to decide — it’s not up to Sean Spicer,” he said. “The fact that it’s @realDonaldTrump and not @POTUS, and that it’s been his personal account for years, that cuts in favor of Trump being the politician. I’m inclined to say that’s probably so … (politicians) can be speaking not on behalf of the government, but on behalf of themselves — even when they are talking about government matters.”

Volokh said there are other factors that the court could deem relevant in its determination, including how people talk about the president’s Twitter account, whether his staff helps edit or create posts and whether or not Trump has been tweeting important government announcements. Giampietro takes a different view from Volokh, saying that while Trump’s @realDonaldTrump account has been his personal one in the past, he now uses it as if it’s an official government communication channel.

“He’s speaking as a president — he’s not talking as an individual,” he said. “All the tweets he’s sending have to do with him and what comments everyone is saying about him. I don’t see how anybody can really argue with a straight face that this is just him personally doing stuff and not him as the president.”

Because of the legal vagueness, it’s unlikely the lawsuit will be resolved soon. Giampietro said it could be several years before a trial court issues a decision and the case ends up in an appeals court.

The situation is also complicated by the fact that there is little precedent for cases about elected officials’ use of social media. In his article for The Post, Volokh cites two cases from the Eastern District of Virginia — Davison v. Plowman and Davison v. Loudoun County Board of Supervisors — in which Judge James Cacheris discusses the deletion of Facebook comments by government officials.

Cacheris said that when a Facebook page is run by the government and users are allowed to comment on it, then it becomes a limited public forum where users’ free speech rights are protected. However, the judge also said that an officeholder’s Facebook page could be viewed as a private project under the right circumstances, and therefore wouldn’t be bound by the same constitutional provisions.

“The mere fact that Defendant Randall holds public office does not subject every social media account she controls to First Amendment scrutiny,” Cacheris said in the Davison decision.

Ultimately, Cacheris concluded that officeholders’ accounts can sometimes be viewed as operated by the government and not merely a government official, particularly if their staff is involved in its maintenance.

“Not very clear factors, to be sure; and it’s also not clear whether they are the right factors,” Volokh said of the decisions in his Post article.

If the Knight Institute wins the case, Trump isn’t the only politician whose communication strategy could change. ProPublica reported last month that many elected officials have blocked their constituents on social media, including congressmen in Arizona and Texas, as well as the governor of Kentucky and the mayor of Atlanta.

Volokh said that, if the Knight Institute prevails, other public officials around the country will presumably opt to unblock their constituents on their Twitter accounts. However, he doubts that the case will have a major or long-lasting effect.

“I don’t think this will have great, broader impact — I don’t think it’s that big a deal,” he said. “I don’t think it’ll change the shape of American politics.”
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Daniel Funke is a staff writer covering online misinformation for PolitiFact. He previously reported for Poynter as a fact-checking reporter and a Google News Lab…
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