By Tatiana Tway
If Trump refuses to unblock the users, the institute has threatened to file a lawsuit on First Amendment grounds. In a June 6 letter to the president, the institute wrote:
“[W]hen the government makes a space available to the public at large for the purpose of expressive activity, it creates a public forum from which it may not constitutionally exclude individuals on the basis of viewpoint.”
If the lawsuit proceeds, two questions will arise: Does a Twitter account constitute a public forum? And if so, what does this mean — not just for the president, but for other public officials and agencies, including many in New England who use social media accounts?
First, a quick lesson on the First Amendment and forums. There are three types of forums: traditional, limited or designated and non-public. Each type is considered differently under the law.
• Traditional public forums are places that have historically been made available to or used by the general public for speech related purposes. Think town squares and soap boxes. These spaces enjoy the most protection.
• Limited or designated public forums are locations or channels of communication that the government opens up for public use. They don’t need to stay open, but so long as they are these spaces enjoy the same protection as traditional forums. City-owned auditoriums and university meeting spaces are examples.
• Non-public forums are areas that traditionally have not been used for speech or haven’t been designated by the government as a forum. There can be restrictions on speech in these spaces so long as they are reasonable and don’t discriminate by viewpoint. An airport terminal is one example.
With communication platforms rapidly changing, however, these definitions are expanding. The institute is claiming that Trump’s Twitter account is a limited or designated public forum, arguing that such a forum can exist “even if the space in question is ‘metaphysical’ rather than physical; even if the space is privately rather than publicly owned.”
Assuming Twitter is considered a public forum generally, a separate consideration must be given to individual accounts. Are they private accounts, for example, or publicly accessible accounts created to engage with all Twitter users? If it is the latter, a court may find a Twitter account to hold the same democratic function as a city council meeting, for example.
While addressing a forum issue in 2009, a U.S. appeals court wrote, “the danger of censorship and of abridgment of our precious First Amendment freedoms is too great where officials have unbridled discretion over a forum’s use.” As such, the court called for “insistence on rigorous procedural safeguards” against restrictions on speech in a limited public forum. One could foresee such a safeguard being the protection of Twitter users from being blocked by their President for expressing certain views.
While we aren’t likely to get answers to these questions any time soon, New England public officials and agencies may want to start paying attention. While data on blocked users can be difficult to find, a paralegal in California has been making public record requests to find out who’s blocking whom. In Vermont, she found the state’s Department of Motor Vehicles has blocked 12 Twitter users and the state’s Agency of Natural Resources has blocked one. Vermont’s governor, Peter Shumlin, wouldn’t disclose how many Twitter users he’s blocked citing a privacy exemption in the state’s public records law.
Meanwhile, elected officials in New England continue to rack up large followings on Twitter. U.S. Sens. Bernie Sanders (D-Vt.) and Elizabeth Warren (D-Mass.) have 6.8 million and 2.54 million followers, respectively.
While calling for Trump to unblock all users on Twitter seems like a simple or perhaps insignificant request, the effects of such a measure extend much further than the click of a button. The idea of Twitter pages as a public forum threatens to change not only the systems in place surrounding social media but also the very way individuals communicate with their elected officials.
With so many potential implications, the decision on this issue could be the Tweet heard ‘round the world — or at least by those who haven’t yet been blocked.
Tatiana Tway is a rising second-year law student at New England School of Law | Boston. She is a 2017 summer legal fellow for the New England First Amendment Coalition.
NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.
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Major Supporters of NEFAC for this year include the Barr Foundation, The Providence Journal Charitable Legacy Fund, The Robertson Foundation, Lois Howe McClure, The Boston Globe and Boston University. Celebration Supporters include The Hartford Courant and the John S. and James L. Knight Foundation.