The Internet and the First Amendment are in a constant battle when it comes to the right of free speech. When government officials block or remove comments from the Internet and social media, is it considered a violation of the First Amendment? This is a topic that has been debated over the years and as the Internet grows more and more into our daily lives, it’s starting to become a popular issue.
In 2018, a lawsuit against President Trump addressed this problem of free speech and social media. Knight First Amendment Institute for Columbia University v. Trump challenged the president’s blocking of critics on Twitter. The Knight First Amendment Institute filed this suit against Trump and his communications team after seven people who criticized the president and his policies were blocked from the president’s Twitter account, @realDonaldTrump.
In the suit, The Knight First Amendment Institute argued that the president’s Twitter account is considered a “public forum.” The legal definition of public forum is “a place that has a long-standing tradition of being used for, is historically associated with, or has been dedicated by government act to the free exercise of the right to speech and public debate and assembly.”
When considering this definition ask yourself: “Does Twitter meet the criteria to be considered a public forum?” Twitter is a privately owned company, so it has not “been dedicated by government act” to free speech. Furthermore, as a private company, Twitter gets to say what can and can’t be done on its platform. It’s also hard to determine if Twitter would be considered “a place with a long-standing tradition of being used for or history associated with” the right to free speech -- it’s only been around for 12 years. However, topics of “public debate” is something users tweet about. In fact, almost every government official uses the platform to tweet updates, political messages and connect with the community. So, is it really a public forum?
Well, Judge Naomi Reice Buchwald thought so. In May 2018, she ruled that the President violated the First Amendment rights of the blocked users, noting that Trump engaged in “impermissible viewpoint discrimination,” as reported by the ABA Journal. However, the ruling appears to be limited to situations where government actors use their accounts in the course of their official positions -- for example -- the highest office in the United States.
The government then appealed this decision, arguing that it was “fundamentally misconceived” in part because the president’s Twitter account belongs to him and is subject to his personal control, not the government’s. What they are trying to get across is that Trump’s Twitter feed is not the speech of the government, and therefore, he is not violating the First Amendment right to free speech by blocking others from his account. In other words, just like you can block someone from your social media accounts, Trump has the right to block as well.
Of course, The Knight Institute contended that the interactive space on Twitter is a designated public forum because the government has intentionally opened the space up for expression of its official views, which coincides with the definition of public forum mentioned before. The government and the president himself have chosen to communicate to the public through Twitter, opening up the opportunity for free speech. It would be different if the president had his account on private and only tweeted to certain followers, but his account is indeed public for all to view and respond to.
UPDATE: On Tuesday, July 9th, 2019, the 2nd US Circuit Court of Appeals upheld Judge Naomi Reice Buchwald’s ruling that found that President Trump violated the First Amendment by blocking users on Twitter, according to CNN.
In a quote published by CNN, Judge Buchwald concluded that “the First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise-open online dialogue because they expressed views with which the official disagrees."
This ruling is one that may make an impact on First Amendment cases involving social media to come in which social media will be treated as a public forum.
This case is not the only one that addresses the struggle for free speech and the right to petition the government. Countless others have addressed this issue in disputes involving state and local government officials who have blocked users based on their political critiques.
Some solutions to these issues lie within the implementation of new social media policies and the creation of forums dedicated to posts of political expression, no matter the view. However, these solutions still seem as if they are only masking the issue at hand.
The right to criticize government officials and policies is something that is protected by the First Amendment, but with the power and influence of social media and the Internet, it’s hard to define the line that crosses into the right to block free speech. Not to mention, the government does not own platforms like Twitter and Facebook, so they technically have no say in what type of content is to be removed. But it looks like Mark Zuckerberg, founder and CEO of Facebook, is looking to change the government’s say in this precise issue.
In a statement released by Zuckerberg, he calls for stronger Internet privacy and election laws that will “protect society from harmful content, ensure election integrity, protect people’s privacy and guarantee data portability,” as reported by CNBC. Even Zuckerberg understands that Facebook can be used to harass, defame, and violate the rights of others -- and perhaps even steer an election.
In the case of Trump blocking users on Twitter, it was found that he was in violation of the rights protected by the First Amendment. Only time will tell what other cases will be impacted by this decision and if any changes will be implemented, but for now, always be conscious of what you say on social media. You could be violating the private rights of others by publishing in unprivileged, and defamatory or otherwise, harassing speech. If you need guidance on Internet defamation, cyberbullying, or free speech issues on social media, contact the attorneys at RM Warner Law or visit RMWarnerLaw.com to learn more.