Twitter and the Right Not to Be Blocked

What follows in pure conjecture, and in no way constitutes legal opinion. It merely outlines one of many possible outcomes.

An article in the New York Post on June 6 reported on a potential legal case aiming to force President Trump to unblock users he has blocked from seeing or tweeting to his timeline, either directly or by replying. This raises an interesting legal conundrum. The President uses his personal Twitter account, @RealDonaldTrump, rather than the official @POTUS account that was created under President Obama’s tenure to handle presidential Twitter discourse.

Unintended Consequences
Unintended Consequences

A letter lawyers sent to President Trump argues that his use of his personal Twitter account to relay official information in his capacity as POTUS has made the account public domain, subject to the public record and to First Amendment protections regarding free speech. The legal counsel representing the potential plaintiffs in this case wrote that “This Twitter account operates as a ‘designated public forum’ for First Amendment purposes, and accordingly the viewpoint-based blocking of our clients is unconstitutional.” They then asked that those users and any others who have been blocked for similar reasons be unblocked. According to the article, the implication in the letter is that if the President does not comply, a legal challenge will follow.

On the face of it, this appears to be a simple matter. However, if this goes to court, it will raise several legal implications that could have serious ramifications for users of social media platforms with regard to privacy and usage controls. The executive director of Knight First Amendment Institute at Columbia University, Jameel Jaffer, stated that the President does not have a right to exclude critics from engaging with his tweets, adding that “Though the architects of the Constitution surely didn’t contemplate presidential Twitter accounts, they understood that the president must not be allowed to banish views from public discourse simply because he finds them objectionable…Having opened this forum to all comers, the president can’t exclude people from it merely because he dislikes what they’re saying.”

What is even more interesting in the context of the letter is that according to Time, Press Secretary Sean Spicer, when asked whether the President’s tweets qualify as official statements on behalf of the White House, responded that they are indeed “considered official statements by the President of the United States.” The administration has effectively confirmed the potential plaintiffs’ supposition.

The implications of this potential case are massive if it goes to court and the case is successful. The US has seen a lot of change in recent years, and with the rise of social media, the line between public servant and private citizen has blurred considerably. The main thrust of the case is that Presidents Trump’s personal Twitter account is now, due to its use as a mouthpiece for official statements, part of the government and no longer a private tool. In other words, it claims that all of the President’s tweets are a matter of public record and, more importantly, subject to the First Amendment right to free speech. Thus, he should not be able to block people who disagree with his viewpoint, even—and this is important—if they are abusive in their tone. This is the downside of freedom of speech, according to some. You are allowed any opinion.

Also of interest are the unintended consequences that could flow from the potential case. Common law is full of unintended consequences. It is precedent that drives the legal machine, often twisting the original reason for a decision so far that it is not even recognizable. The fallout from this could mean that any public servant who uses social media, Twitter, Facebook, Google+, etc. could have their tweets subpoenaed and made part of the public record. Further, this could be used to change the result of the case we reported on here. Suddenly, a blog could become an adjunct to the bloggers’ corporate website, a valid mouthpiece. Employees’ personal Twitter accounts could be held to contain official comments. There are an number of high-profile bloggers and tweeters who are relying on a disclaimer that could suddenly become as useful as a chocolate fireguard. I believe that this is one step too far. That said, for public servants and employees, this could very easily become the de facto position. It is easy to envision a situation whereby a government employee (whether federal, state, or city level) would have to maintain two separate and distinct online identities across multiple social media platforms: one for posts, tweets, and shares that are work-related and therefore subject to the new strictures and a personal one for their pictures of cats and barbecue.


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