Today, a judge in the Southern District of New York held that President Trump may not block users from his personal Twitter account, @realDonaldTrump:
This case requires us to consider whether a public official may, consistent with the First Amendment, “block” a person from his Twitter account in response to the political views that person has expressed, and whether the analysis differs because that public official is the President of the United States. The answer to both questions is no. . . .
We then proceed to the substance of plaintiffs’ First Amendment claims. We hold that portions of the @realDonaldTrump account -- the “interactive space” where Twitter users may directly engage with the content of the President’s tweets -- are properly analyzed under the “public forum” doctrines set forth by the Supreme Court, that such space is a designated public forum, and that the blocking of the plaintiffs based on their political speech constitutes viewpoint discrimination that violates the First Amendment. In so holding, we reject the defendants’ contentions that the First Amendment does not apply in this case and that the President’s personal First Amendment interests supersede those of plaintiffs.
In the hours since its release, this decision has already ignited a storm of debate, some uninformed (see generally, the media) and some informed (see Eugene Volokh's initial analysis here). Prof. Volokh notes that theEastern District of Kentucky recently reached the opposite conclusion.
While many issues are unsettled when applying the First Amendment to social media and other technologies, Ed Whelan highlights some concerns with the decision:
My first take: I'm very skeptical of holding that "interactive space" of @realDonaldTrump Twitter account is a "designated public forum." I'm not persuaded that any part of Twitter is a public forum. 1/ https://t.co/z0SuwYRPPi
— Ed Whelan (@EdWhelanEPPC) May 23, 2018
Judge's assertion that "extent" of Trump/Scavino control over Twitter space is "sufficient to establish the government-control element" seems like naked assertion, is underdeveloped at best. Judge cites precedent of "privately owned theater under long-term lease to city." 2/
— Ed Whelan (@EdWhelanEPPC) May 23, 2018
But does anyone think that relationship between Twitter and user is anything like a long-term lease from one entity to another? "Designated public forum" precedents are far from clear, but this application strikes me as strained beyond the breaking point. 3/
— Ed Whelan (@EdWhelanEPPC) May 23, 2018
Doesn't judge's reasoning apply equally to public-university professors who use their Twitter account for work-related purposes? Or is that a ground of distinction that, in my haste, I've overlooked? 4/
— Ed Whelan (@EdWhelanEPPC) May 23, 2018
Ilya Shapiro points out that the identity of the parties may have improperly affected the holding:
The judicial #Resistance strikes again. Sure, you have a constitutional right to troll the president, but that doesn’t mean he can’t block/mute you. https://t.co/0VqI1Hpcf5— Ilya Shapiro (@ishapiro) May 23, 2018
It is also worth noting that this case is concerning Donald Trump's personal Twitter account, @realDonaldTrump, which has been his for years and will remain his after leaving office, and not the official presidential Twitter account, @POTUS, which is operated by the current holder of the White House. While the #resist movement may be cheering this decision as a victory against President Trump, few are pausing to consider its vast implications, as Mr. Whelan points out, if applied to public officials' Twitter accounts, from members of Congress down to the clerks at City Hall.