July 11, 2017; NiemanLab
The Knight First Amendment Institute at Columbia University announced today that it had filed suit against President Donald J. Trump for blocking people who cross, mock, or criticize him from his Twitter account. The suit claims that it is a violation of the Constitution to block people because @realDonaldTrump, boasting 33 million followers, is essentially a public forum. Also named in the suit, which was filed in the Southern District of New York, were Sean Spicer and social media director Dan Scovino.
This is exactly the kind of definitional work for which the Institute was designed. A jointly and well-funded partnership between the Knight Foundation and Columbia University, the Institute’s particular niche is defense of the First Amendment in the digital age. It has filed a number of suits recently, including a FOIA lawsuit against the Department of Homeland Security for records on searches of cellphones and laptops at the border and another one against the White House for not making visitor logs available.
Speaking of the Twitter-blocking case, Jaffer says,
The Supreme Court has held that there are certain forums that the First Amendment recognizes as public forums, like town halls and open city council meetings. The rule at those kinds of forums is that the government can’t exclude people based on their political views. That’s probably the most well-settled rule in First Amendment jurisprudence: the rule against viewpoint discrimination. That rule is very well settled, but how it applies—or whether it applies—to new communications platforms like Twitter or Facebook is an open question. That’s not something that’s really been litigated before.
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Legislators and public officials all over the country are increasingly using social media to engage with their constituents. So we really see these questions as the social media-era equivalent of the town hall and city council meeting questions that came up 20, 30, 40 years ago. It really does affect the vitality of our democracy if local politicians are blocking their critics on Twitter and thereby preventing those critics from engaging with the public officials who are supposed to be representing them. That’s why we took on this particular issue.
Jaffer says that the Institute is not arguing that all social media accounts run by public officials are public forums. However, the way that Trump uses his makes it so. “He uses it to make official announcements, he uses it to engage with foreign leaders, he uses it almost exclusively to comment on government policy. Based on a whole list of factors, we conclude that this is a public forum under the First Amendment.”
The New York Times reports that the Supreme Court may actually agree with this cutting-edge argument, pointing out a recent unanimous ruling that a North Carolina law barring convicted sex offenders from using Twitter or Facebook violated the First Amendment.
Justice Anthony M. Kennedy, writing for a five-justice majority, said the law violated the First Amendment because social media had become “the modern public square.” Justice Samuel A. Alito Jr., joined by two other justices, concurred with the result but expressed reservations that Justice Kennedy’s language was too sweeping and loose.