A federal district court judge ruled last week that President Trump cannot block people on Twitter, citing the First Amendment. This decision will be reversed because Twitter is a private company (merely publicly traded), not a public forum. Trump hasn’t bothered obeying the order and unblocking the people, no doubt because he knows it’s bad law.
The decision wasn’t even necessary, since anyone, including the blocked individuals, can see Trump’s tweets as long as they are not logged into Twitter. They merely can’t interact with him — he won’t see their tweets and he cannot tweet at them. But others can see their tweets at him. The six individuals who sued over being blocked claim this is “burdensome.” Judge Naomi Reice Buchwald agreed, calling it a “cognizable injury-in-fact.” However, if you’ve used Twitter, you know it’s a minor inconvenience at most.
Being prohibited from interacting with Trump is almost meaningless, considering he receives thousands of tweets a day and cannot possibly interact back with all of them. He rarely responds to tweets directed at him. He was never going to respond to these critics anyway.
Trump blocks people who disagree with him politically, mainly when they tweet rudely at him. He’s blocking bullies and trolls. The plaintiffs merely want to annoy him with their tweets. The account in question is @realDonaldTrump, which is not his official presidential Twitter account. However, he tweets about official issues related to the presidency.
Judge Buchwald stated in her opinion that the “interactive space” where Twitter users interact with Trump constitutes a public forum protected by the First Amendment. She admits, “for a space to be susceptible to forum analysis, it must be owned or controlled by the government.” She cites several examples of public forums but they are government property — public schools, public parks, city buses, federal workplaces. One exception she mentions is a privately owned theater under lease to a city, but that can be distinguished from Twitter, which is not on lease to the government.
Judge Buchwald’s slippery slope argument claims that because Trump is the president and he’s using Twitter, that translates into government control. Yet at the same time, she admits, “Twitter also maintains control over the @realDonaldTrump account.” Ultimately, Twitter has the final authority over the account, and could even delete it. Twitter often suspends users. Trump may have one of the most popular accounts on Twitter, but he doesn’t control the platform, he merely controls a small element of his personal account. He hasn’t magically transformed private property into public property.
If allowed to stand, this decision would set a dangerous precedent. Any private company utilized by governmental leaders could be designated a public forum, with the officials forced to listen to anyone who disagrees with them. Why stop with Twitter, why not designate coffee shops and bars as public forums since officials frequently engage in political debates there? Why not designate any private location, app or social media that Trump frequents as a public forum?
While it is true that much of our political debate today occurs on social media like Facebook and Twitter, instead of a public square in downtown, it doesn’t automatically transform these new places for discussion into public forums.
This decision isn’t surprising. The courts are dominated by left-leaning judges. Judge Buchwald was appointed by President Clinton. The plaintiffs knew they had a good shot at getting a judge who would stretch the law in order to rule against Trump. They probably forum shopped to pick Buchwald, who is a Senior Judge of the United States District Court for the Southern District of New York.
Trump should be able to block rude tweets directed at him. Compare it to the private telephone system — if someone repeatedly calls the White House to rudely criticize him, he can block their calls. Just because he uses the phone system too doesn’t make him obliged to take calls from bullies. The phone system doesn’t become a public forum because Trump talks on the telephone.
Trump’s tweeting has proven to be powerful and influential. His enemies would love to dismantle his ability to speak immediately and directly to the American people. This is just the beginning of those efforts to stop his tweeting.