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Sunday, June 11, 2017

@realDonaldTrump as public forum and state action

Last week, the Knight First Amendment Institute at Columbia University has written an open letter to President Trump on behalf of two people blocked from Trump's Twitter account, apparently for posts criticizing or mocking the President. The letter argues that the account is a designated public forum, from which people cannot be excluded for viewpoint-discriminatory reasons. Eugene Volokh questions the conclusion, doubting that Trump is using the account as a government official rather than as an individual who holds public office although admitting it is an unexplored border area, and narrowing the concept of the speech restricted to the opportunity to engage in comment threads. Noah Feldman rejects the entire premise of the Knight Institute's letter because Twitter, a private actor, banned the users.

I disagree with Feldman's conclusions, although it raises some interesting state action/under color of law questions. The relevant fact is that Trump commanded Twitter to ban block these speakers. And the claim is that Trump violated the First Amendment; Knight is not suggesting that Twitter violated the First Amendment. In any action against Trump, the challenge would be to his under-color decision to block them; it would be irrelevant that the block was carried out by a private actor following Trump's command. By analogy, if the President rented a private space for a public event and ordered private security to keep certain people out based on their viewpoint, the violative act is the order to keep them out, regardless of who carried it out.

And it gets kind of interesting if Knight were to go after Twitter. A private actor may be under color when it performs a traditional and exclusive government function and when it acts under government compulsion to perform a violative act. If Trump is acting as President in managing @realDonaldTrump, the violative act of blocking the users is done under Trump's command or compulsion. And the President arguably has delegated control and management of a public forum--a government function--to private actors. Both of those facts should make Twitter under color of (federal) law.

Posted by Howard Wasserman on June 11, 2017 at 06:59 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink


"The relevant fact is that Trump commanded Twitter to ban these speakers." You mean to block them, not ban them.

As for the analogy of renting a private space for a public event, the equivalent action is not kicking people out of it. The people Trump has blocked are not removed from Twitter. He's just choosing to not listen to them. I'd imagine that at any public event a government official is well within their rights to extricate themselves from a conversation they don't want to be in.

If at a public event the President simply said "Excuse me, but I have other people I need to talk to" I don't think anyone would accuse him of a First Amendment violation. The only difference here is that the effect is produced by technology rather than through social norms.

Posted by: Derek Tokaz | Jun 12, 2017 8:16:31 AM

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