Editor's Picks

Twitter, Trump, and the right to free tweet

A recent lawsuit filed by a First Amendment advocacy group and numerous individuals has raised eyebrows regarding the President’s personal twitter account and the First Amendment right to free speech.

Social media rejection is something many people have experienced at one time or another.  Be it an un–friend on Facebook, an un–follow on Instagram, or being blocked on Twitter, finding out that someone has rejected you carries a slight sting that many of us do not find enjoyable.  But what if you could take that sting to the court system and potentially obtain a legal remedy for it?

A group of plaintiffs and the Knight First Amendment Institute at Columbia University have filed a complaint for declaratory and injunctive relief against President Donald Trump and two of his top advisors for allegedly blocking them on the popular social media site Twitter.  They argue, among other things, that by being blocked from seeing and responding to the President’s tweets, they have had their First Amendment rights to free speech violated by the Executive Branch.  To properly appreciate this somewhat bizarre lawsuit involving social media and the President, one must look to the history of the First Amendment regarding public forums and public speech.

The Supreme Court of the United States, most recently in their landmark decision Packingham v. North Carolina, stated, “[a] fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more.”  These places have been aptly named as “public forums.”  An example of these types of places would be a street corner or a park, and the Court has fought to protect speech in these places from being restricted or regulated by the government without sufficient justification.  The Court has also recognized that with the age of the internet and the surge in social media usage, users engage in a “wide array of protected First Amendment activity on topics ‘as diverse as human thought.’” Given the great importance of free speech, the Court has outlined what must be done for a state or federal government to restrict or regulate public speech in a public forum.

To survive strict scrutiny review, the restriction must be necessary to serve a compelling state interest that is narrowly drawn to achieve that end.

A restriction may be classified in two ways, as content–based or content–neutral.  A content–based restriction is a restriction on certain speech that is based purely on what is being said.  This type of restriction is subject to strict scrutiny when being analyzed by a deciding court.  To survive strict scrutiny review, the restriction must be necessary to serve a compelling state interest that is narrowly drawn to achieve that end. Strict scrutiny is the highest and toughest level of scrutiny that a regulation may have to pass.

On the other hand, a content–neutral restriction, also known as a “time, place, and manner restriction,” is a restriction that does not limit any type of speech, but regulates the means by which the speech may take place.  This restriction is subject to intermediate scrutiny and must serve a significant government interest while also leaving alternative channels for communication.

Does a private Twitter account specifically qualify as a public forum subject to the scrutiny of First Amendment protection?  On its surface probably not, however, the Knight First Amendment Institute and other attached plaintiffs argue that the President’s account has transformed from a private, personal account into a public forum since the President’s swearing–in.  The plaintiffs contend that because the President and his aides utilize the account to “make formal announcements, defend the President’s official actions, report on meeting with foreign leaders, and promote the administration’s position on health care, immigration, foreign affairs, and other matters,” this qualifies the account as a public town hall of sorts that is full of official information.

Additionally, they assert that statements from the defendants themselves bolster their claims that the President’s personal account has morphed into a public forum.  On July 2 of this year the President tweeted, “[m]y use of social media is not Presidential – it’s MODERN DAY PRESIDENTIAL.”  A month before, now resigned White House Press Secretary Sean Spicer told the press that tweets from the President should be understood as “official statements by the President of the United States.”  It is these two statements, among others made by officials within the President’s administration, which have the plaintiffs believing they cannot be restricted from voicing their concerns on the President’s account.

The National Archives and Records Administration has informed the White House that the President’s tweets from his personal account are “official records that must be preserved under the Presidential Records Act.”

The plaintiffs’ claims may not seem so far-fetched when one looks at how other official entities see the President’s tweets.  According to the plaintiffs, the National Archives and Records Administration has informed the White House that the President’s tweets from his personal account are “official records that must be preserved under the Presidential Records Act.”  Moreover, foreign leaders such as the President of Mexico, Enrique Peña Nieto, have seen tweets from the President regarding official matters and reacted as a result of their contents.  All of these matters in isolation probably would not mean much, but when taken together, they do seem to give the plaintiff’s claims some potential merit.

The social media site Twitter, like many other social media platforms, gives its users various ways to alter who may not view his or her account and tweets, including making his or her account private and/or blocking users.  By making an account private, a user has to accept “follow requests” from other users in order for those people to see what content is posted to that user’s account.  The President’s personal account is not private, which means that anyone with an account (or even without an account) may go on the website and view what the President is posting.  “Blocking” a user means that the blocked person cannot view any content that has been posted to a certain account; however, it should be noted that a blocked user could “in theory” log off their twitter account and view a public account either by remaining logged off the interface or by logging into another user’s account and viewing the content.

As of now, the President and his legal team have not filed a response to the suit filed on July 11 in the United States District Court for the Southern District of New York. The complaint outlines the manner in which the aggrieved plaintiffs were blocked by the President’s personal account, and it appears that the President’s actions of blocking certain users was based upon their comments to his initial tweets that they viewed.  Based upon this, one would conceive that the action of blocking these users based on their comments is a content–based restriction under First Amendment analysis.  The issues that the district court will grapple with involve whether the President’s account qualifies as a public forum, and if it does, whether the President has a compelling governmental interest that is narrowly drawn to achieve that end.

This will be another landmark case in the timeline of history that is the internet, social media, and the law.  If successful, one remedy the plaintiffs request is that the President be barred from blocking users based on their comments to his tweets.  Although this is a simple remedy, it would be a powerful check on the Executive branch in terms of informing future Presidents and other top officials that their personal accounts on various social media websites could be public forums subject to First Amendment protections.

Tommy Harvey III
About Tommy Harvey III (15 Articles)
Tommy Harvey III is a third year law student and serves as an Associate Editor for the Campbell Law Observer. He is originally from Atlanta, GA and received his undergraduate degree from the University of Miami. Tommy has worked for the United States Attorney’s Office, Eastern District of North Carolina and the Mecklenburg County District Attorney’s Office in Charlotte, NC. His legal interests include Civil Rights Law, Constitutional Law, and International Law. Tommy is a member of the Campbell Law Trial Team, and serves as a peer mentor as well as the current Vice President and past Treasurer for the Campbell Law Black Law Students Association.