Blocked on Twitter…By the President

The Washington Post reported on June 13 that author Stephen King had been blocked on Twitter by @realdonaldtrump, the Twitter account Donald Trump uses regularly instead of the official @POTUS account. Is this a violation of the First Amendment? A letter from the Knight First Amendment Institute at Columbia University says yes: “The government may impose reasonable time, place, and manner restrictions in a designated public forum, but it may not exclude people simply because it disagrees with them.”

However, in a Wired article, Neil Richards, a professor at Washington University’s Law School, and expert in First Amendment theory, points out: “The question of whether the President’s Twitter feed is a public forum is a more complicated question. The law here is famously muddled, because it’s trying to prevent the government from discriminating against people who speak on public streets and parks, but it’s trying to fight the urge to make everything a public forum.” Eugene Volokh is more pointed in disagreeing with the Knight Institute’s stance; in a ProPublic article Volokh states, “The @realdonaldtrump account is very much, ‘I’m Donald Trump. I’m going to be expressing my views, and if you don’t like it, too bad for you.’ That sounds like private speech, even done by a government official on government property.”

The Knight Institute cites the recent Davison v. Loudon County decision to support its claim that a government official blocking citizens on Twitter is a violation of the First Amendment. In Davison, the court said, “The Court is not required to determine whether any use of social media by an elected official creates a limited public forum, although the answer to that question is undoubtedly ‘no.’ Rather, the issue before the Court is whether a specific government policy, applied to a specific government website, can create a “metaphysical” limited public forum for First Amendment purposes. See Rosenberger v. Rector, 515 U.S. at 830, 115 S.Ct. 2510. That answer to that narrower question is undoubtedly ‘yes.’” Davison v. Loudoun Cty. Bd. of Supervisors, 2017 WL 58294, at *5 (E.D. Va. Jan. 4, 2017).

While legal scholars disagree as to whether Trump’s blocking of Stephen King and others on Twitter is a violation of the First Amendment, librarians agree that this area is ripe for further research (as is the question of social media and public/open records laws), and as the more private citizens bring law suits against government officials and agencies for suppressing speech on government and politician-run social media outlets, librarians will be watching with great interest at how it all unfolds.

Further Reading:

David S. Ardia, Government Speech and Online Forums: First Amendment Limitations on Moderating Public Discourse on Government Websites, 2010 BYU L.Rev. 1981 (2010).

Enrique Armijo, Kill Switches, Forum Doctrine, and the First Amendment’s Digital Future, 32 Cardozo Arts & Ent. L.J. 411 (2013-2014).

Alysha L. Bohanon, Tweeting the Police: Balancing Free Speech and Decency on Government-Sponsored Media Pages, 101 Minn. L. Rev. 341 (2016-2017).

Assistant Director, Research and Instruction, at Boley Law Library, Lewis and Clark Law School, in Portland, Oregon.