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Let’s Get Metaphysical: Second Circuit Defines Public Fora in Digital Space

By Jeff Hermes

In Knight First Amendment Institute at Columbia University v. Trump, No. 18-1691 (2nd Cir. July 9, 2019) (Parker, Hall, Droney, JJ.), a panel of the U.S. Court of Appeals for the Second Circuit unanimously affirmed a judgment of the Southern District of New York, holding that the 45th President of the United States violated the First Amendment rights of Twitter users whom he "blocked" from his @realDonaldTrump Twitter account based on his dislike of the viewpoints they expressed. The opinion addressed complex questions about the ability of public officials to control their interactions with members of the public in privately operated digital spaces.

Background

A significant portion of the Second Circuit's opinion was dedicated to the specific mechanics of Twitter and the effect of one user "blocking" another on the platform. As described by the court, when User A blocks User B, User B's functionality is limited while logged into his/her account as follows: User B cannot see User A's timeline or tweets; User B cannot reply to, retweet, or like any of User A's tweets, preventing such responses from appearing in the "comment thread" associated with User A's tweet; User B's tweets will not be seen by User A; and User B cannot trigger a notification to User A by mentioning User A in a tweet.

The court identified "workarounds" of varying burdensomeness that could enable a blocked user to accomplish many of these functions and participate in the comment thread following a tweet by the blocking user; these solutions involved either temporarily logging out of one's account or creating a new account. Only creating a new account (which would not have any of the blocked user's existing followers associated with it) would enable the blocked user to post tweets visible to the blocking user, and the new account could be blocked in the same manner as the old account.

The @realDonaldTrump Twitter account was launched in March 2009 and has been maintained since by defendant Trump. It was undisputed that following Trump's inauguration, he used the account "as a channel for communicating and interacting with the public about his administration;" the court also found that the account is "one of the White House's main vehicles for conducting official business." Since the inauguration, the home page associated with the account has featured language and imagery depicting Trump in his official capacity, and the National Archives have treated tweets on the account as official records that must be preserved under the Presidential Records Act.

The current case was filed in the U.S. District Court for the Southern District of New York in July 2017. The plaintiffs in the case included several named individuals whose accounts were blocked in May and June of 2017 as well as the Knight First Amendment Institute at Columbia University, which asserted a First Amendment interest in hearing from the blocked users on the affected comment threads. The defendants included Trump, White House Director of Social Media Daniel Scavino, former White House Press Secretary Sarah Huckabee Sanders, and former White House Communications Director Hope Hicks. The defendants conceded that the individual plaintiffs were blocked for replying to tweets from the @realDonaldTrump account with comments critical of Trump and/or his policies.

On May 23, 2018, the district court entered summary judgment for the plaintiffs against defendants Trump and Scavino, holding that the "interactive space of the tweets" associated with the @realDonaldTrump account was a designated public forum and that Trump and Scavino had engaged in unconstitutional viewpoint discrimination. Knight First Amendment Institute at Columbia University v. Trump, 302 F. Supp. 3d 541, 580 (S.D.N.Y. 2018). Claims were dismissed against defendant Sanders for lack of standing, and dismissed against defendant Hicks due to her resignation. Id.

The individual plaintiffs were unblocked from the account following the district court ruling, but defendants Trump and Scavino nevertheless appealed.

Presidential or Private Discrimination?

The core argument asserted by Trump and Scavino on appeal was that the @realDonaldTrump account was operated by Trump as a private citizen, not in his official capacity. Specifically, the defendants argued that the account was created by Trump as a private citizen and will remain under his control as a private citizen after he leaves office.

The Second Circuit gave these arguments short shrift, pointing to the "overwhelming" evidence—in the appearance and content of the account, in Trump's own statements, in the statements of White House staff, in the treatment of the account by the National Archives, and more—that Trump uses the @realDonaldTrump account for official activity. Opinion at 17-19. The fact that Trump was exercising the same powers as other Twitter users are granted did not matter, said the court: "[T]he fact that any Twitter user can block another account does not mean that the President somehow becomes a private person when he does so." Id. at 19. Nor, held the court, did the private origin, ownership, or future status of the account change the analysis, given that "[t]emporary control by the government can still be control for First Amendment purposes." Id. at 17.

Nevertheless, the court was careful to note that "not every social media account operated by a public official is a government account," and that the determination in other cases would turn on a "fact-specific inquiry" into "how the official describes and uses the account; to whom features of the account are made available; and how others, including government officials and agencies, regard and treat the account." Id. at 20-21.

Delineating the Forum

Notwithstanding the primary focus of the appellate argument on how Trump used the @realDonaldTrump account, a more interesting issue was the definition of the "public forum" in which Trump was held by the district court to have engaged in viewpoint discrimination. Trump argued that the @realDonaldTrump account was not a forum unto itself, but the privately-controlled channel by which he participated in Twitter's larger privately-operated forum.

The court, however, noted that by design the account had "interactive features open to the public, making public interaction a prominent feature of the account" and supporting a finding that the account was not a private construct. Id. at 20-21. Recognizing that forums can include "metaphysical" spaces, id. at 22 (citing Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819, 830 (1995)), the court held that such spaces become public forums when they are opened by the government "for indiscriminate use by the general public," id. at 23 (citing Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 47 (1983)). On those principles, the court held that the @realDonaldTrump account and its accompanying interactive features were a public forum. Id. at 23.

Burdening the Plaintiffs' Speech

The court recognized that regardless of whether a forum created by the government is public or nonpublic, the government may not discriminate against speakers in the forum on the basis of viewpoint. Id. at 23. And, the court held, acts of replying, retweeting, and liking burdened by the defendants' blocking of the plaintiffs on Twitter were expressive acts protected by the First Amendment. Id. at 23-24. Therefore, concluded the court, the defendants' blocking of the individual plaintiffs violated their First Amendment rights. Id. at 24.

The court's opinion thus adopted something of a belt-and-suspenders approach. As noted above, the court found both that the @realDonaldTrump account was a public forum and that the defendants engaged in viewpoint discrimination. However, the former holding would make it less relevant that viewpoint discrimination was involved, because exclusion from a public forum for any reason is presumptively a First Amendment violation. Meanwhile, the latter holding would make it unnecessary to find that the forum was public because viewpoint discrimination is a First Amendment violation in any government forum.

The court also rejected the defendants' argument that "the only material impact that blocking has on the individual plaintiffs' ability to express themselves on Twitter is that it prevents them from speaking directly to Donald Trump by replying to his tweets on the @realDonaldTrump web page," finding that blocking also imposes a significant burden on talking about Trump's tweets with other members of the public on the platform. Id. at 24. The court noted (as did the district court below, see 302 F. Supp. 3d at 576-77) that it might be a different story if Trump had merely taken steps to prevent his personal receipt of messages he did not want to see. Id. at 25 n.7.

It was also irrelevant, held the court, that workarounds existed for blocked users to interact with other Twitter users with respect to Trump's tweets, because requiring speakers to use burdensome alternatives can also violate the First Amendment. Id. at 25-26. (Although the court did not go into this level of detail, it is worth recognizing that requiring a Twitter user to create a new account to evade a block can significantly limit the reach of the user's tweets. Such tweets will likely not reach others who followed the original account but not the new account, and who rely on the "follow" function for notification about new tweets.)

Whose Speech Is It, Anyway?

The defendants' final argument was that if the @realDonaldTrump account is controlled by the government, all speech subject to those controls must be treated as government speech. Thus, they reasoned, the government could censor speech on that channel to conform the overall content to the government's preferred point of view.

However, the court found that there was no evidence that the account had ever been controlled in that sense, and that replies and retweets of Trump's tweets were presented as originating from other users, not Trump. Thus, while Trump's own tweets were clearly government speech, the speech of the third parties was not. Id. at 27-28. The court repeated the Supreme Court's caution about overextending the government speech doctrine to suppress private individuals' viewpoints. Id. at 28-29, citing Matal v. Tam, 137 S.Ct. 1744, 1758 (2017).

Further Implications

This case has been closely watched not only for its implications for Trump's Twitter habits but for any effect that it might have on social media sites' ability to exercise control over their users' content. In that sense, it is similar to the Supreme Court's recent decision in Manhattan Community Access Corp. v. Halleck, No. 17-1702 (June 17, 2019), about which I wrote last month. Indeed, industry groups representing the interests of digital companies filed amicus briefs in both cases seeking to avoid results that would limit platform control of their own sites.

However, Halleck dealt with (and rejected) the notion that a private company becomes subject to First Amendment limitations imposed upon state actors merely by opening a forum for speech to the public. This case, in contrast, was watched for any hints regarding the more nuanced question of whether a public official's decision to venture onto a social media site somehow compromises the site's ability to moderate content within the "metaphysical space" of the public official's presence on the site.

(The idea that Trump's decision to use Twitter should somehow result in Twitter being treated as a state actor seems nonsensical to me. Private owners do not become state actors—even if they voluntarily open their property to the public under specified conditions—just because a public official wanders onto their property and starts talking. If the conditions placed upon access to private property result in individuals being denied rights of access to a public official's speech, the violation is logically the official's for choosing to speak in a restricted space.)

Fortunately or not, the Second Circuit expressly avoided that question in its decision. Opinion at 4. Nevertheless, the manner in which the court defined the forum in this case (i.e., as being limited to the "interactive features" associated with the @realDonaldTrump account) suggested that it was taking pains not to issue a ruling that would define the entirety of Twitter as a public forum.

But there is an analytical weakness in how the Second Circuit went about this, inasmuch as the breadth of the putative forum found to have been opened by Trump has no practical limit. There are no boundaries on what an individual might discuss in a reply to one of Trump's tweets, or the direction the subsequent comment thread might turn. If Twitter were held to be bound by the First Amendment in its moderation decisions within this "metaphysical space," users who wished to engage in hate speech or any other communications falling into the gap between constitutional protection and Twitter's terms of service could simply conduct those conversations within a thread started by a public official. The "metaphysical space" would consume the whole of the site.

This is not to say that the ultimate determination that Trump and Scavino violated the First Amendment is incorrect, but analyzing the case through the public forum doctrine may prove to be confusing and unhelpful for future cases. It might have been wiser for the Second Circuit to avoid this approach entirely, and upon determining that Trump was acting in his official capacity to hold that (1) members of the public have a First Amendment right as listeners, with which government officials may not interfere, to receive the official public statements of the President, and (2) the First Amendment forbids the government from actively interfering with private individuals' discussion of matters of public interest, certainly when motivated by viewpoint discrimination and regardless of the context or the tools used to accomplish that interference.

Those two statements seem unremarkable (if perhaps only to me), keep the focus on acts of government officials, and do not depend on characterizing the space in which the interference takes place as any kind of government-operated constitutional "forum." If anything, the First Amendment problem is arguably easier to see if the case is understood as involving the government interfering with citizens' speech in a space owned by private parties. After all, we do not permit the government to interfere with our discussion of the President's statements in our homes or places of business (which are certainly not public fora); the same should apply to Twitter.

Jeff Hermes is a Deputy Director of MLRC.

 
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