You might be aware that the President of the United States has a Twitter account. You might not be aware that each time he uses the account to post information about government business, the President opens a new “public forum” for assembly and debate. According to District Judge Naomi Reice Buchwald’s decision in Knight First Amendment Institute v. Trump, the government controls the “interactive space” associated with the President’s tweets and may not exercise that control so as to exclude other users based on the content of their speech. In other words, the District Court wrote, the First Amendment regulates the President’s conduct on Twitter and prohibits him from blocking other users from replying to his political tweets. Unfortunately, this ruling could backfire, so that a decision intended to promote free speech may instead degrade or limit it.
It works like this: the President or his aides sign in to his account, @realDonaldTrump, and submit content to Twitter – text, photographs and videos. Twitter serves that content to anyone who requests it via a web browser, i.e., it is visible to everyone with Internet access. If another user has signed in to their Twitter account, they may “reply” to the President’s tweets. A third user who clicks on the tweet will see the reply beneath the original tweet, along with all other replies. If the President has “blocked” a user, however, the blocked user cannot see the President’s tweets or reply to them as long as the blocked user is signed in to their account. The blocked user can still reply to other replies to the original tweet, and those “replies to replies” will be visible to other users in the comment thread associated with the tweet. The blocked user can still view the President’s tweets by signing out of their account. And they can still comment on the President’s tweets in connection with their own account or any other user’s account that has not blocked them from replying.
The District Court concluded that the space on a user’s computer screen in which replies appear beneath the President’s tweets is an “interactive space” that the government controls. It declared that President Donald J. Trump’s conduct in blocking certain users from entering that “interactive space” by way of “reply” to his tweets amounted to unconstitutional viewpoint discrimination under the First Amendment. While directed at one uniquely powerful user with a presidential seal at his disposal, the court’s decision has potentially far-reaching consequences for every website that offers to accept and display content from a broad range of users. At a time when courts are searching for a legal metaphor that will help them to understand and classify such websites, the District Court’s analysis embraced one that is a poor fit for modern web-based technology – the “public forum.”
In traditional First Amendment analysis, a “public forum” is a government-owned property such as a town square, park, street or space that the government controls and has deliberately opened for assembly and expression. Twitter is a corporation and a website. It is not property or funding that the government owns or controls. In holding that the President’s individual Twitter account and the “interactive space” associated with his tweets were essentially property over which the government exercised control, the court’s ruling dramatically expands the scope of the “public forum” doctrine. The holding means that a government actor’s participation in a privately ordered system of rules can transform the corporate-owned system into a “public forum” and can confer corresponding First Amendment rights on tens of millions of other participants.
The District Court’s decision, if adopted as controlling law, would create innumerable new “public forums” for litigants and courts to regulate as a matter of constitutional mandate. In fact, under the District Court’s reasoning that the space beneath a single tweet is the relevant “interactive space” for the purposes of public forum analysis, every government-related tweet opens a new “public forum” into which replies may or may not enter. Thus, our prolific President may open multiple distinct public forums in the space of a few days, hours or minutes, each of which may give rise to a separate constitutional claim in favor of blocked users. Moreover, the District Court’s decision provides no reason to distinguish the President from any other federal or state government official, high or low, who posts government-related content on a website that is open to comment by others. Could it be that a new public forum is born every minute?
While one might be tempted to conclude that expanding the concept of the “public forum” to include the “interactive space” surrounding a public official’s online pronouncements is a good thing, the District Court’s decision may have unintended adverse consequences for websites, users and officials alike. A “public forum” must allow virtually any speech, no matter how divisive, uncivil or destructive of the community’s values it may be, to be subject only to the meager restrictions on obscenity, outright fraud and incitement of violence that the Supreme Court’s public forum precedents permit. Websites put their functionality and rules in place because they elevate the quality of discourse above the free-for-all First Amendment floor and strengthen communities of common interest, at least as compared with public alternatives – parks, streets or squares. A judicial system that replaces these private rules with a “public forum” jeopardizes websites’ ability to place community-oriented limitations on content and behavior for the benefit of users.
In this case, Twitter was not a defendant. But in the next case, a court might hold that the private website – which, after all, owns and controls the servers, software and content-management rules that deliver the “interactive space” into existence – has an obligation to refrain from aiding and abetting a government actor’s abridgment of constitutional rights. If this comes to pass, the judicial system will have constitutionalized what had previously been a network of contracts between and among websites and their users, who send and receive content in accordance with agreed-upon terms of service. And it will have deprived websites of the ability to create and operate the same functionality for all of their millions of users. The framers of the First Amendment and the Supreme Court presumably did not intend for the “public forum” doctrine to reach so far and wide.
In short, the District Court’s decision to recognize a “public forum” is a momentous one that radically alters the terms of engagement for government officials, users and websites that host expressive activity. And it creates a significant risk of depriving users of the benefits of community-oriented standards of conduct and functionality, which may include limits on content and the privilege to block other users. In light of this risk, courts should recognize a novel public forum only reluctantly, after considering whether government control over a system of communication is so pervasive that its exercise of that control meaningfully suppresses a plaintiff’s right to speak or have access to speech.
In this case, the proposed public forum at issue is a novel one, and the President’s user-based ability to block others from replying directly to his tweets (but not from viewing them or speaking anywhere else, including in related comment threads) exerts only the slightest control over the system of communication – i.e., the same control that every other user can exert and to which every other account-holding user has consented by agreeing to the terms of service. Thus, rather than judging the case categorically based on a “public forum” analogy that is ill-suited to the task, the District Court might have evaluated whether this type of government control warrants constitutional regulation.
Of course, the District Court’s decision is not the final word on the matter. In the meantime, the takeaway for websites and users is that judicial recognition of the importance of speech on platforms such as Twitter has not only arrived (that happened long ago), but has reached the point at which government participation on those platforms swiftly triggers constitutional claims.