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Human Rights

What Constitutes a Public Forum on Social Media?

by David McGee

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, action that would violate the freedom of speech guarantee of the First Amendment. President Trump argued that because this was his private account, created in 2009, it was not subject to First Amendment claims at all. 

The District Court, in a case of first impression, found Trump’s argument unpersuasive, as both parties stipulated to the fact that President Trump regularly conducts official business through his private Twitter account. The court ruled that President Trump’s Twitter feed constitutes a designated public forum. Judge Naomi Buchwald likened his Twitter feed to a public park in which many voices could congregate to express their views and ideas. President Trump’s Twitter feed (where a user can interact with the president’s tweets by responding, retweeting, and more) was differentiated from President Trump’s original tweets, which would be considered government speech and not subject to a First Amendment claim. In blocking individual users, President Trump engaged in unconstitutional viewpoint discrimination, and the court ordered the president to unblock the users who filed suit. 

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 government, or a government official, but the official also has the right not to engage with that individual. If President Trump had merely muted the plaintiffs in Knight, there would have been no First Amendment violation. The plaintiffs would’ve been able to interact with President Trump’s interactive space on Twitter, but President Trump just would not have seen those messages. Any public official may face the same issue, but their solution can be to just mute the offensive account rather than block it. 

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 and the Law.