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.