Is Twitter-blocking by The President a violation of the 1st Amendment?

Because the White House doesn’t control the account. Donald Trump does.

I read Volokh’s comments and thought his reasoning was sound and seems to mirror what I’ve been thinking all along, which is that it comes down to how you interpret Trump’s twitter account. Is it his personal account or is it a White House account? It seems to me it’s the former, not the latter. He’s tweeting from the same personal account that he had before taking office. That he holds public office doesn’t make his private, personal accounts less private and less personal. Sure, his comments are obviously of public interest and in the public sphere, but that doesn’t change the fact that Donald Trump, the person, still has the right to control his devices as he sees fit.

Perhaps, but he’s still using his personal account to make pronouncements relevant to his duties - like who he was nominating for the head of the FBI.

Point of fact, Trump’s Twitter account doesn’t crack the top 30 in terms of followers as of June 8th 2017. It’s currently about 1/3 the size of Barak Obama’s.

Enjoy,
Steven

Well, he’s POTUS, and sort of sui generis in that regard; almost everything a president says is relevant to his duties. But that doesn’t mean that a POTUS can’t - for example - hold a fundraising event which is not open to the public, even if he’s going to talk about upcoming nominees there.

Goddam you. You stole my idea!! That does it. I’m cutting you off from my twitter account. :smiley:

That is actually a very strong counter-argument and I suppose that the more he does this, the more he uses his Twitter in an official capacity, the stronger that argument becomes. I guess when I think of Sir Donald’s tweeting binges, I tend to think of it as a kind of bizarro public diary in which he catalogues the inner thoughts of Donald in real time. My own perception of Trump – and it’s strictly my perception that doesn’t have to be shared by others – is that Trump sort of vacillates between being a reality TV character and being president. I sometimes get the sense that he’s not really sure which role he’s assuming at any given moment either.

But you do indeed raise a fair point. He is the sitting President of the United States, and he does tend to make official announcements using his twitter account and bypassing the usual channels of communication. I think it’s fair to say that if someone operating in the public trust and public interest is primarily using a private medium to communicate with the public about matters of state, then it might not be unreasonable to consider such a medium less private and personal in nature.

So what?

If Trump owned a billboard before he became President, and used it after he became President to announce who he was nominating for the FBI spot, the billboard would not then be transformed into a public forum.

I don’t use Twitter, so please forgive any misconceptions or things that may be obvious to the most casual of users.
I get the impression that once a tweet is made, people can comment on it and then other people can respond to those comments. This can lead to not only a back-and-forth between commenters, but lurkers reading and being affected by the conversation.

I assume that like many websites, creating alternate accounts in order to circumvent a block is a violation of Twitter’s terms of service.

If ToS in general are of any consequence at all, this means that someone who is blocked is effectively unable to receive ‘live’ tweets.

Further, it means that anyone who was blocked is unable to actively participate in the conversation, not just to the original tweeter, but to others commenting on that tweet.

I don’t know if it also violates the ToS, but in order to read the live tweets, someone would have to repeatedly log out (and then back in to their own account).

Because of the nature, import, affect and notoriety of his tweets (not necessarily all), and because of the nature, import and affect of the conversations regarding his tweets, and because of the open nature of Twitter itself (as I understand it), it follows (to me), that he is creating a public space with a high focus on political discourse. He is excluding people from that space based on the content of their ideas.

By blocking people, isn’t he preventing a major method of communication? Not him refusing to read something, but rather the attempt to contact him. It’s tantamount to directing the post office to refuse to pick up mail addressed to the White House if it comes from an address associated with a member of the Democratic party.

The mass communication design/aspect of Twitter distinguishes it from a cell phone or other mode where it is a limited resource. The interactive aspect distinguishes it from a billboard that is clearly one-way.

Beyond whether he can read (or not) a comment, he is preventing members of the public from communicating with each other, in a forum that has a draw many orders of magnitude higher than a public square. He is preventing that conversation not because of time/place/manner-type objections, but specifically due to the content of opposing political opinions.

What is your understanding of how a nonpublic forum becomes a limited public forum (or a private forum a public forum, if that’s the only argument)?

The three recognized types of fora are the traditional public forum, the nonpublic forum, and the designated or limited public forum. (Goulart v. Meadows, 345 F. 3d 239 (4th Cir 2003). The third category of government property, the designated public forum, is property which the government has opened for expressive activity to the public, or some segment of the public. A designated public forum can only be created by “purposeful government action” in which “the government must intend to make the property `generally available.'” (Goulart at 249, my emphasis)

In the electronic realm, the factors tending to establish a limited public forum include: whether the forum was created by private actor or pursuant to a government action or policy; whether the forum is administered by privately-owned equipment or with government-owned equipment; whether the content provided by the forum is the result of government-paid staff. Page v Lexington County Schools discusses how a private forum for government speech can become a limited public forum by opening up for public commentary and feedback. But this does not apply to a private forum for individual speech.

That’s my understanding.

It’s a hell of a sell if you can get people to agree that one of the most widely viewed Twitter feeds in America is “private.”

Not so hard when you realize that the President of the United States is using an unsecured medium, one on which he himself has complained about being hacked, as a means to make official declarations. Until the White House makes a declaration that what the Press Secretary said was wrong, that everything coming from the President’s private Twitter account is NOT to be considered an official statement, or until the President is blocked from making any official statements from anything other than the official White House account(which supposedly has been made more secure than the unofficial one), then an obvious problem exists.

“Private,” in the sense of privately-controlled, as opposed to government-controlled. “Belonging to or concerning an individual person, company, or interest,” in other words. @ladygaga is a private Twitter account because Lady Gaga runs it, not the government. @barackobama is a private Twitter account for the same reason: Lady Gaga runs it.

:smiley:

Your fixation on the “official” declarations of the White House Press Secretary is adorable.

And by “adorable,” I mean “not adorable.”

Since major publications/websites on both sides of the political stream seem to think it’s an issue, then whether you think it is “adorable” or not is of little concern to me. I’m sure there are plenty of other “adorable” threads out there to keep you entertained, though.

Which publications think it’s an issue, exactly? What specifically are they saying? Are they citing legal authority?

Have you read any of the links already provided in this thread, starting with the one in the OP?

Ok. So do you agree that, assuming this Twitter account is a government forum at all (which I realize is very much in dispute), it is more likely a limited public forum than a nonpublic forum given the ability (of some people) to append comments to the posts?

So two of those three factors are unknown but may well point to government action (actions on government-paid phone by government-paid staff), while the third unequivocally does not (who created the forum). As in the cases Volokh cites, the key determinant seems to be the content of the posts. The more you talk about work and make official pronouncements, the closer it gets to state action. And there is a pretty good argument that Trump does a lot of governing by tweet.

So doesn’t that make this a colorable case instead of the quixotic abuse of process you’ve painted it as?

I think you risk a lot by putting too much emphasis on the origins of the forum. It makes it easy to launder private property into public use to avoid the First Amendment. If a public school wants to let Christians use its auditorium on Sundays but not atheists, can it just purchase a private auditorium? I don’t think so. By contrast, school officials can arrange to rent a space to have a baccalaureate without having to hold ceremonies for other faiths. ISTM, the difference lies in who pays and how the space is actually used and controlled.

Just to clear up this one minor point:

I don’t have a Twitter account, but I can read anyone’s Twitter account if I know their handle. As an example, I regularly read the Twitter feed of Josh Barro of Business Insider. If you typed the URL ‘x.com’, then you’d see his Twitter feed too.

I did that a few minutes ago, and saw all of his recent tweets up to that moment. Since then, he’s tweeted again. So now there’s a banner over his most recent tweet saying “View 1 new Tweet” and the tab where I have his Twitter feed open has gone from reading “Josh Barro (@jbarro | Twitter)” to “(1) Josh Barro (@jbarro | Twitter)” (italics not in original) so that even if I don’t have that tab open, I can see right away that he’s got a new tweet up. If I go to that tab and click on the “View 1 new Tweet” banner, it’ll show me the new tweet.

But I didn’t, and he’s tweeted again, so now the tab reads “(2) Josh Barro (@jbarro | Twitter)” and the banner would read “View 2 new Tweets”. And so forth. So all I really have to do to make sure I don’t miss a new tweet of his, is have a browser tab open to his Twitter feed, and have that tab where I can see it.