With the advent of social media, many politicians chose to set up official Facebook, Twitter, and Instagram accounts to communicate with their constituents. These accounts are used for official purposes, and many politicians have kept their own, separate personal accounts, which they use for their lives outside of public life.
President Donald Trump’s use of his previously private Twitter account as president brings a major new wrinkle into whether a politician’s private Twitter account may be a public forum. President Trump, unlike many politicians, maintains only one Twitter account that he uses for both private and official interactions with the American people. Like other private citizens, when President Trump sees tweets directed at him that he finds offensive or inaccurate, he sometimes takes steps to block those users. Because President Trump is a public official, the act of blocking an individual user on his private account may have constitutional implications that are not a consideration with a private citizen.
In Knight First Amendment Inst. at Columbia Univ. v. Trump, 302 F. Supp. 3d 541 (S.D.N.Y. May 23, 2018), a group of seven citizens, represented by the Knight First Amendment Institute, sued President Trump. Their complaint alleged that when President Trump blocked them on Twitter, he engaged in viewpoint discrimination in a public forum,
The District Court, in a case of
The ruling is essentially saying President Trump may not decide who may interact with his tweets based on the viewpoint of the Twitter follower. Currently, President Trump is appealing the decision to the U.S. Court of Appeals for the Second Circuit. If Knight is upheld on appeal, it will provide important guidance for politicians to determine when Twitter is a public or private forum. For politicians who use their personal account as their Twitter for their office, they must take note of how they can interact with constituents without engaging in viewpoint discrimination. Knight takes care to differentiate between the different options a politician can use to interact with citizens they find offensive or who “troll” the official. Judge Buchwald made it clear that an official may mute an individual account. She likened this to a public official merely ignoring the voice of a constituent. A citizen has a right to petition the
Politicians who have separate Twitter accounts for their personal and their official roles should also heed the ruling in Knight. Analogous to a business owner who owns multiple businesses and does not want to risk a plaintiff piercing the corporate veil, politicians need to keep their private and official Twitter accounts separate. There can be no crossover between the two because one of the chief reasons why the court found that President Trump’s Twitter is a public forum is his use of his private account for official business. If a politician starts to use a personal account for official purposes, that could open the politician to legal action for blocking anyone from the time the private account was put to official use. Knight indicates that people who were blocked before President Trump used his account for official use would not have standing to sue because at that point it was still a private citizen’s account.
The debate over what constitutes a public forum on social media websites will not end with this case. There will almost certainly be more cases involving Twitter and Facebook and Instagram that could also constitute a designated public forum under circumstances similar to the reasoning of Knight. The continued expansion of the Internet as a means of communication will continue to force the courts into examining traditional doctrines considering how the American people communicate over the Internet.
David McGee is a third-year law student at the Washington College of Law, where he serves as editor-in-chief of the Journal of Gender, Social Policy