Yesterday, Judge Naomi Reice Buchwald, a Clinton appointee, ruled that President Trump violated the First Amendment by blocking certain followers because of the views they expressed. Judge Buchwald found Trump’s blocking to be “viewpoint discrimination,” which it is, and held that Trump is not exempt from constitutional obligations to refrain from such conduct.
Then came the obligatory incantation: “No government official — including the President — is above the law.”
Rhetoric aside, the key to Buchwald’s ruling is her view that the back and forth that occurs in the space below Tweets occurs in a public forum. It is this view that enabled her to say that when Trump blocks users, he’s denying access to a public forum based on their political viewpoint.
The back and forth does constitute a forum, and one accessible to the public. However, Noah Feldman, a liberal Harvard law professor and author of an excellent biography of James Madison, disagrees that forum in question is public. He told the Washington Post that the case is wrongly decided because for a public forum to exist, the government must own or control it. Here, Twitter controls Trump’s account.
David French at NRO makes the same argument. He cites these words from Twitter’s terms of service:
We may suspend or terminate your account or cease providing you with all or part of the Services at any time for any or no reason, including, but not limited to, if we reasonably believe: (i) you have violated these Terms or the Twitter Rules, (ii) you create risk or possible legal exposure for us; (iii) your account should be removed due to prolonged inactivity; or (iv) our provision of the Services to you is no longer commercially viable. We will make reasonable efforts to notify you by the email address associated with your account or the next time you attempt to access your account, depending on the circumstances.
Thus, says French, “using Twitter isn’t like renting out a concert hall or reserving space in a public park” because “Twitter is in command, not Trump, and to the extent that Trump does anything, he does so only with Twitter’s permission.”
Eugene Volokh, by contrast, finds it “pretty clear” that “the virtual space provided by Twitter for replying to the President’s Tweets is a ‘designated public forum.'” It’s “a space controlled (even if not owned) by the government that is generally open for public speech to fellow members of the public, and in which the First Amendment forbids viewpoint discrimination.”
Trump exercises some control over the virtual space, but lacks ultimate control. This is a close case, I think.
Judge Buchwald did not order Trump to unblock followers. She said that a clarification of the law should be enough to resolve the dispute. If Trump ignores the judge’s “clarification,” future litigation could force Twitter to unblock Trump’s followers unilaterally.
The fact that the road to enforcement runs through Twitter can be viewed as confirmation of the Feldman-French position that the forum is Twitter’s, not the government’s.