I can point to a variety of reasons the decision was wrong, some of which I’ve already explored in an earlier column. It should be overturned on appeal.
But chief among the problems is that the government doesn’t ultimately control what the court called the “interactive space” of replies to the president’s tweets — Twitter Inc. does. That reality, which the court obscured and obfuscated, is going to lead to very serious consequences for the First Amendment rights of Twitter, and all other social media platforms.
Here’s how: Users who are blocked altogether from Twitter are going to start suing the company on the ground that they are being excluded from what the court has deemed the “designated public forum” associated with Trump’s account.
These suits are going to create a logical-legal anomaly. If they lose, then there exists a public forum that some people can’t access — which makes no legal sense. If they win, then Twitter will have been deprived of the free-speech and free-association right to block users it doesn’t want.
The court found against Trump on the basis of a tricky doctrine known the designated public forum. A product of judicial interpretation of the First Amendment, the idea is that there are some government-controlled spaces that aren’t traditionally open like public parks, but are nevertheless designated by the government for speech of some kinds and on some subjects. In such spaces, the government may regulate the subject matter, but it can’t discriminate against private speakers on the basis of their viewpoint.
This doctrine shouldn’t have been applied to Trump’s Twitter account at all. The court had to slice and dice Trump’s feed into different parts to make the decision fit. It said that what Trump tweets himself is government speech, not a public forum at all. And it said Trump is under no obligation to listen to comments. He could, for example, mute any followers he wishes.
But the court said that the component of Trump’s account in which followers reply to his tweets and comment on the replies amounted to a designated public forum for speech. Never mind that Trump didn’t create this “space” — he only opened a Twitter account that included replies as a feature.
To get to this conclusion, the court had to say, among other things, that Trump was in control of the account, which isn’t really the case. Twitter creates the features that allow blocking, and it could change them at any time. What’s more, Twitter can also ban people from its platform for any reason, whenever it wants.
That’s where things get weird. If access to Trump’s account is a constitutional right, why should any member of the public be blocked from participating on it? Suppose I am blocked from using Twitter altogether for hate speech or other abuses of the terms of service. I can now go to court and claim that Twitter is barring me from a designated public forum.
A court faced with such a lawsuit — and I expect such suits will be filled soon — could do one of two things. The most cautious route would be to bar the suit by saying that Twitter isn’t the government, so blocked users don’t have free-speech rights against it. What’s more, Twitter has free-speech and free-association rights that allow it to block statements it doesn’t want and users it doesn’t like.
This conclusion would be legally right, I think. But it shows the absurdity of the court’s holding regarding Trump. How can his account be a public forum if Twitter has the right to bar people from gaining access to it? The bottom line is that it makes no sense to say that Trump controls a space that is actually controlled by Twitter.
The counterargument would be that, by hosting Trump’s account, which has now been determined to be a public forum, Twitter is filling a public function. Thus, Twitter should be obligated to let all users onto its service — so that they can follow Trump.
Some people might like to see such a radical new rule. It would, in effect, subject social media platforms to the First Amendment directly, stopping them from barring users.
In the real world, this would mean that no social media platform operating in the U.S. could apply community standards to bar users. Harassment, hate speech and anonymous accounts could not be treated as bases for being barred from a service. The platforms would lose their private free-speech rights — all because government officials opened accounts.
That’s why it is important that Trump appeal this decision, and not just switch from blocking to muting in order to make it go away. The district court has thrown a monkey wrench into free-speech doctrine. The court of appeals needs to take it out, before the whole works start to jam.
©2018 Bloomberg L.P.