United States: Should The President's Tweets Create A "Public Forum"?

You might be aware that the President of the United States has a Twitter account. You might not be aware that each time he uses the account to post information about government business, the President opens a new "public forum" for assembly and debate. According to District Judge Naomi Reice Buchwald's decision in Knight First Amendment Institute v. Trump, the government controls the "interactive space" associated with the President's tweets and may not exercise that control so as to exclude other users based on the content of their speech. In other words, the District Court wrote, the First Amendment regulates the President's conduct on Twitter and prohibits him from blocking other users from replying to his political tweets. Unfortunately, this ruling could backfire, so that a decision intended to promote free speech may instead degrade or limit it.

It works like this: the President or his aides sign in to his account, @realDonaldTrump, and submit content to Twitter – text, photographs and videos. Twitter serves that content to anyone who requests it via a web browser, i.e., it is visible to everyone with Internet access. If another user has signed in to their Twitter account, they may "reply" to the President's tweets. A third user who clicks on the tweet will see the reply beneath the original tweet, along with all other replies. If the President has "blocked" a user, however, the blocked user cannot see the President's tweets or reply to them as long as the blocked user is signed in to their account. The blocked user can still reply to other replies to the original tweet, and those "replies to replies" will be visible to other users in the comment thread associated with the tweet. The blocked user can still view the President's tweets by signing out of their account. And they can still comment on the President's tweets in connection with their own account or any other user's account that has not blocked them from replying.

The District Court concluded that the space on a user's computer screen in which replies appear beneath the President's tweets is an "interactive space" that the government controls. It declared that President Donald J. Trump's conduct in blocking certain users from entering that "interactive space" by way of "reply" to his tweets amounted to unconstitutional viewpoint discrimination under the First Amendment. While directed at one uniquely powerful user with a presidential seal at his disposal, the court's decision has potentially far-reaching consequences for every website that offers to accept and display content from a broad range of users. At a time when courts are searching for a legal metaphor that will help them to understand and classify such websites, the District Court's analysis embraced one that is a poor fit for modern web-based technology – the "public forum."

In traditional First Amendment analysis, a "public forum" is a government-owned property such as a town square, park, street or space that the government controls and has deliberately opened for assembly and expression. Twitter is a corporation and a website. It is not property or funding that the government owns or controls. In holding that the President's individual Twitter account and the "interactive space" associated with his tweets were essentially property over which the government exercised control, the court's ruling dramatically expands the scope of the "public forum" doctrine. The holding means that a government actor's participation in a privately ordered system of rules can transform the corporate-owned system into a "public forum" and can confer corresponding First Amendment rights on tens of millions of other participants.

The District Court's decision, if adopted as controlling law, would create innumerable new "public forums" for litigants and courts to regulate as a matter of constitutional mandate. In fact, under the District Court's reasoning that the space beneath a single tweet is the relevant "interactive space" for the purposes of public forum analysis, every government-related tweet opens a new "public forum" into which replies may or may not enter. Thus, our prolific President may open multiple distinct public forums in the space of a few days, hours or minutes, each of which may give rise to a separate constitutional claim in favor of blocked users. Moreover, the District Court's decision provides no reason to distinguish the President from any other federal or state government official, high or low, who posts government-related content on a website that is open to comment by others. Could it be that a new public forum is born every minute?

While one might be tempted to conclude that expanding the concept of the "public forum" to include the "interactive space" surrounding a public official's online pronouncements is a good thing, the District Court's decision may have unintended adverse consequences for websites, users and officials alike. A "public forum" must allow virtually any speech, no matter how divisive, uncivil or destructive of the community's values it may be, to be subject only to the meager restrictions on obscenity, outright fraud and incitement of violence that the Supreme Court's public forum precedents permit. Websites put their functionality and rules in place because they elevate the quality of discourse above the free-for-all First Amendment floor and strengthen communities of common interest, at least as compared with public alternatives – parks, streets or squares. A judicial system that replaces these private rules with a "public forum" jeopardizes websites' ability to place community-oriented limitations on content and behavior for the benefit of users.

In this case, Twitter was not a defendant. But in the next case, a court might hold that the private website – which, after all, owns and controls the servers, software and content-management rules that deliver the "interactive space" into existence – has an obligation to refrain from aiding and abetting a government actor's abridgment of constitutional rights. If this comes to pass, the judicial system will have constitutionalized what had previously been a network of contracts between and among websites and their users, who send and receive content in accordance with agreed-upon terms of service. And it will have deprived websites of the ability to create and operate the same functionality for all of their millions of users. The framers of the First Amendment and the Supreme Court presumably did not intend for the "public forum" doctrine to reach so far and wide.

In short, the District Court's decision to recognize a "public forum" is a momentous one that radically alters the terms of engagement for government officials, users and websites that host expressive activity. And it creates a significant risk of depriving users of the benefits of community-oriented standards of conduct and functionality, which may include limits on content and the privilege to block other users. In light of this risk, courts should recognize a novel public forum only reluctantly, after considering whether government control over a system of communication is so pervasive that its exercise of that control meaningfully suppresses a plaintiff's right to speak or have access to speech.

In this case, the proposed public forum at issue is a novel one, and the President's user-based ability to block others from replying directly to his tweets (but not from viewing them or speaking anywhere else, including in related comment threads) exerts only the slightest control over the system of communication – i.e., the same control that every other user can exert and to which every other account-holding user has consented by agreeing to the terms of service. Thus, rather than judging the case categorically based on a "public forum" analogy that is ill-suited to the task, the District Court might have evaluated whether this type of government control warrants constitutional regulation.

Of course, the District Court's decision is not the final word on the matter. In the meantime, the takeaway for websites and users is that judicial recognition of the importance of speech on platforms such as Twitter has not only arrived (that happened long ago), but has reached the point at which government participation on those platforms swiftly triggers constitutional claims.

Stay tuned.

This article is presented for informational purposes only and is not intended to constitute legal advice.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions