The Knight First Amendment Institute has sent a letter to President Trump, arguing that his blocking of some Twitter users (if done based on their viewpoints) from @RealDonaldTrump violates the First Amendment. I think that’s not quite so, though the matter is not open and shut.
1. In what role is @RealDonaldTrump acting? Government officials can act in two different capacities: on behalf of the government and expressing their own views. Often, the capacity is clear. When the president signs or vetoes a bill, or orders government officials to start an investigation, he is acting in his capacity as head of the executive branch. When the president is running for reelection and gives a campaign speech, he is not acting on behalf of the government. Certainly Trump’s actions in moderating @RealDonaldTrump weren’t constrained by the First Amendment before he was elected; they presumably wouldn’t be if he runs for reelection, either.
Likewise, even when the president is giving a public speech, he is understood at least in part as expressing his own views. Indeed, that is why even Supreme Court justices who believe that the government may not endorse religion think that it’s fine for government officials to express religious views in their speeches — here, for instance, is the view of Justices John Paul Stevens and Ruth Bader Ginsburg in Van Orden v. Perry:
Our leaders, when delivering public addresses, often express their blessings simultaneously in the service of God and their constituents. Thus, when public officials deliver public speeches, we recognize that their words are not exclusively a transmission from the government because those oratories have embedded within them the inherently personal views of the speaker as an individual member of the polity.
My sense is that the @RealDonaldTrump account — though run by Trump on government time and from government property — is the work of Trump-the-man (albeit a man to whom people pay attention because he is president), just as it was before November, and not Trump-the-president. His decisions about that account are therefore not constrained by the First Amendment.
When I put up posts, or moderate comments, I’m not acting on behalf of the State of California (even though blogging is part of my job, for which I get some modest credit in my job evaluations, much as professors who write op-eds are given some credit for such “service” to the public); likewise for Trump. To be sure, my powers stemming from my government job are small: I give grades, I consume taxpayer money and I participate as one of 50-odd people in the state law school’s faculty decision-making process. Trump’s powers are vast. But the principle strikes me as quite similar.
(The matter might be different, by the way, as to @POTUS: Its title is more focused on the president’s governmental role; the handle was inherited from President Barack Obama; and it does not have a pre-election history as Trump’s campaign account. The Knight Foundation says that its arguments “apply with equal force to your other account, @POTUS, to the extent that you or your aides have blocked users from that account because of their views,” but I don’t know to what extent there have been such blocks on that account.)
As I mentioned, the question as to @RealDonaldTrump isn’t open and shut, and there hasn’t been much litigation on this so far. The most detailed discussion has come this spring from Judge James Cacheris (Eastern District of Virginia) in the Davison v. Plowman and Davison v. Loudoun County Board of Supervisors litigation, which involved deletion of Facebook comments; here’s what Cacheris concluded:
A. When the Facebook page is run by a government agency — such as the Loudoun County Commonwealth Attorney’s Office or the Loudoun County Board of Supervisors — and the public is generally allowed to post comments on it, those comments become a “limited public forum,” in which the government may not discriminatorily exclude or delete comments based on viewpoint.
B. When the Facebook page is run by an individual officeholder, such as Phyllis Randall, chair of the Board of Supervisors, it might — under the right circumstances — be viewed as not a government project, and thus not subject to First Amendment constraints. “The mere fact that Defendant Randall holds public office does not subject every social media account she controls to First Amendment scrutiny.” “Defendant Randall’s discussion of matters related to her work can, by itself, render an otherwise private Facebook page governmental for purposes of the First Amendment.” “Defendant Randall may make public statements though social media outside of her governmental capacity, including to Loudoun County residents.”
C. On the other hand, in some situations, such officeholder-run accounts might be viewed as operated by the government and not by a government official (and thus subject to First Amendment constraints). According to Cacheris, for instance, it matters to what extent officeholders have involved their staffers in the maintenance of the social media account, and to what extent they used the account “as a tool of government” rather than just “discuss[ing] matters related” to their agenda. Not very clear factors, to be sure; and it’s also not clear whether they are the right factors, or how they would apply to the rare officeholders (such as the president) who are expected to use staff even for matters that for most officeholders would be personal (cooking, cleaning and the like).
Again, my inclination is to say that @RealDonaldTrump, an account that Trump began to use long before he became president, and one that is understood as expressing his own views — apparently in his own words and with his own typos — rather than some institutional position of the executive branch, would likely be seen as privately controlled, so that his blocking decisions wouldn’t be constrained by the First Amendment. And I think that’s so even if he gets some help from government-employed staff in running it. But I note again that this falls near a borderline that has not been mapped in detail.
2. Just how is speech being restricted? So if @RealDonaldTrump is viewed as Trump’s own account, then there’s just no First Amendment problem in his blocking users. (There may be a political problem, if it’s seen as petty, thin-skinned, or closed-minded, but that’s a separate matter.) But what if I’m mistaken, and it’s viewed as run by Trump in his capacity as a government actor, and thus subject to the First Amendment?
A. One effect of blocking users is that any @RealDonaldTrump references by the user won’t show up in Trump’s “notifications” tab. But even if he reads a few of his notifications, there’s no First Amendment problem with his refusing to read those that come from particular people. Speakers “have no constitutional right to force the government to listen to their views.”
B. Another effect is that the blocked users can’t follow @RealDonaldTrump, and can’t view or search his messages while logged on. But all they need to do is log off and go to http://twitter.com/RealDonaldTrump, and they’ll see them all. I do think that the First Amendment bans viewpoint-based interference with people’s ability to acquire information and not just with their ability to convey it; but here the interference seems extremely minor (though I could imagine a court saying that even such minor interferences are unconstitutional, if they come from the government in a limited public forum).
C. The most constitutionally significant effect would be that blocked users apparently can’t post to Twitter comment threads, at least without some complicated workarounds (see footnote 5 of the Knight letter). If @RealDonaldTrump is seen as a governmental project and thus a limited public forum, then viewpoint-based exclusion from posting to such threads likely would be unconstitutional, just as viewpoint-based exclusion from commenting on a government-run Facebook page would be.
In any event, that’s my tentative thinking on the matter; I’d love to hear others’ views.