“If my fellow citizens want to go to Hell,” Justice Oliver Wendell Holmes Jr. once wrote, “I will help them. It’s my job.”
In our time, Twitter is the nearest thing I can think of to hell on earth. On Wednesday, U.S. District Judge Naomi Reice Buchwald of the Southern District of New York reopened to dissenting Americans the circle of hell that hosts President Trump’s Twitter feed. The judge was just doing her job; whether appeals judges will agree with her conclusion remains to be seen.
Despite what you may have read on Twitter, the judge did not hold that Twitter is public property or that you are violating the First Amendment every time you block some troll who is fouling your feed. Her decision was careful and nuanced; it deserves careful study—but in the age of social-media, it is getting flamed.
@realDonaldTrump, identified on his page as “45th President of the United States of America,” has 52 million followers. Many Americans follow him because they wish to shower praises on his name. And millions of others follow because they want to answer or retweet his tweets along with sarcastic comments.
Trump doesn’t like the latter; he—or someone who maintains his Twitter feed—regularly blocks hostile tweeps. Wednesday, in Knight First Amendment Institute v. Trump, Buchwald held that this viewpoint-based blocking violates the First Amendment rights of those who are blocked. (The Knight Institute is active in a number of realms; I recently wrote a study of Justice Alito for Knight, but am not involved in its litigation.)
The violation, Buchwald reasoned, is not that blocking keeps the blocked from seeing Trump’s tweets—8-year-olds know how to see tweets from someone who has blocked them—but that it keeps them from replying on Twitter. That doesn’t mean Trump has to be able to see the replies, either. He can remain blissfully ignorant of his critics’ existence. But when a president speaks to the world, she held, the First Amendment preserves the right of any person to make known their dissent. In Twitter terms, it is the process of replying to his tweets—and then replying to people who reply to replies and so ad infinitum—that implicates the First Amendment right to speak to others on matters of public importance.
Buchwald’s decision makes some new law, and is sure to be appealed; indeed, she issued her opinion as a “declaratory judgment,” which is a binding statement of the law as it affects the two parties but which does not include an injunction directing any specific person to do anything, perhaps in order to avoid a messy confrontation while appeals are heard.
The decision draws on a First Amendment principle called “the public forum doctrine.” The doctrine arose in the days of the soapbox speaker, who literally needed a place to stand without being beaten up by police; 22 years ago, however, in a case called Reno v. American Civil Liberties Union, Justice John Paul Stevens created a spatial metaphor for “the vast democratic forums of the internet.” Since then, the Supreme Court has repeatedly embraced the metaphor of the Web as a huge populated place where everyone has a right to be.
What is a “public forum”? In 1939, the Court held that streets and parks are “held in trust for the use of the public” for “purposes of assembly, communicating thoughts between citizens, and discussing public questions.” That doesn’t mean that mobs can take to the streets any time they want, blocking traffic and shutting down business. Licensing and other time, place, and manner regulations are allowed, as long as they make no distinction among speakers based on their point of view. “Viewpoint discrimination” is absolutely forbidden in these “traditional public forums.”
Since then, the Court has also developed the concept of a “designated public forum”—that is, a space or an activity that has been opened up to the public as a site for free expression. These can be places—such as a municipal auditorium or concert hall—but they don’t have to be. Thus, for example, the Court has held that a university’s student-activity fee system, which subsidized various student publications, was a “designated” forum. The key is that the government has, either explicitly or by implication, invited the public to express itself in that “space.” Property-law ownership by government isn’t required; if the government uses a space or activity and opens it to expression, it can become a “designated” forum.
Not everything the government or politicians do on the web is a “designated forum.” Most government sites and applications are devoted to specific uses, and may be accessed only by certain people and for certain purposes. But what about the president’s Twitter feed?
Again, the judge did not decide that the First Amendment governs Twitter generally. What she did rule is that, because @realDonaldTrump is a massive space where the president does official business, that small part of Twitter has become, at least in part, a “designated forum.” Twitter as a whole remains private.
It is as if I owned a large field and rented a small part of it to the county for a temporary county hall. Even though I am still the owner, that rental has made that part—and only that part—of the field into a “designated forum” for as long as the county uses it. In this case, Trump has rented his feed from Twitter (the “rent” is in the eyeballs his tweets attract) and used it as part of the White House.
But how can Trump’s tweets be a “public forum”? Nobody has a right to snatch his 52-million-follower soapbox and begin orating, right?
Right. Buchwald’s opinion made a very subtle distinction here. First, she established what nobody can really deny—that even though @realDonaldTrump was Trump’s property before he took the oath of office, it has since been taken over by the government for official use and is thus subject to “forum” analysis:
The @realDonaldTrump account is presented as being “registered to Donald J. Trump, ‘45th President of the United States of America, Washington, D.C.,’” (2) … the President’s tweets from @realDonaldTrump … are official records that must be preserved under the Presidential Records Act; and (3) … the @realDonaldTrump account has been used in the course of the appointment of officers (including cabinet secretaries), the removal of officers, and the conduct of foreign policy—all of which are squarely executive functions.
Then she breaks down the plaintiffs’ claims one by one. Trump’s timelinecan’t be a public forum; nobody can demand that the president tweet words of their choice. The president’s tweets are his own “government speech,” and thus the First Amendment’s rules don’t apply. Nobody can demand a presidential retweet,either; that is his speech, too, and he can exclude viewpoints or express bias as he pleases.
But there’s still another right that blocking denies the plaintiffs—the right to replyon Twitter to a presidential tweet. In fact, Buchwald noted, “tweets sent by the @realDonaldTrump account regularly attract tens of thousands, if not hundreds of thousands, of replies and retweets.” The devilish seduction of Twitter is that, if users choose, they can make their replies—adoring, sarcastic, puzzled, disgusted, or just total trollery—part of that chaotic parade of comments. Those replies can reach some of Trump’s 52 million followers, some of whom may be moved to reply, and then the plaintiffs can reply to their reply—in fact, users can waste entire workdays heaping insults on some troll who probably works in a Russian government office somewhere.
This is civic dialogue that has died and gone to hell; but it is what passes for civic dialogue in 2018 nonetheless, and the government, by maintaining @realDonaldTrump, has opened those replies and retweets for expression, Buchwald said. If the president chooses to “block” certain users—as he has done with the individual plaintiffs in this case—he has excluded them from this forum. They cannot access his tweets within Twitter, and thus they cannot post replies that will be seen by others. Seeing tweets elsewhere doesn’t cure this exclusion: “the ability to interact directly cannot be completely reestablished and that ability—i.e., access to the interactive space—is therefore best described as the access that the individual plaintiffs seek.”
To put it simply, Twitter is how the president speaks to the people; replies on Twitter are how the people speak to each other, in a “place” the government uses for expression and has opened to the public for expression as well. Obviously, blocked users can “reply” to the president on other sites. But a hornbook principle of First Amendment law, enunciated nearly 80 years ago, is that “one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.” That’s especially true when the other “places” available draw many fewer eyeballs than does @realDonaldTrump.
The plaintiffs in this case, the judge said, “were indisputably blocked as a result of viewpoint discrimination.” And viewpoint discrimination in a public forum is a very serious violation of the First Amendment.
So if the users have a right to reply, do they have a right to make Trump listen? No. Buchwald threaded the needle here. Anybody who has been on Twitter knows the difference between a “block” and a “mute.” If I block you, you can’t see my tweets and you can’t answer or tweet @me. If I muteyou, however, I can’t see your tweets—even your replies to me—but you can still see mine, and reply to them, and then get into flame wars with my followers, without bothering me at all. “Muting equally vindicates the President’s right to ignore certain speakers and to selectively amplify the voices of certain others but—unlike blocking—does so without restricting the right of the ignored to speak,” Buchwald wrote.
I honestly don’t know what appellate courts will do with this opinion. Buchwald has written a clever and subtle analysis, but the case is hardly a slam-dunk.
Whether her opinion holds up on appeal or not, though, it’s nice to know that, during a week in which Environmental Protection Agency security personnel forcibly shoved an Associated Press reporter out of a government building, and the White House scheduled an law-enforcement intelligence briefing for Republicans only, one federal employee, eager to help us all go to hell if we choose, spoke up for the seemingly quaint idea that a free society can’t survive without public spaces where anyone can tell the president that he, too ought to go to hell.