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

[Bricker]

@Czarcasm

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

Yes.

[Czarcasm]

@Bricker

Yes.

Then what’s the problem-were they not adorable enough for you?

[Bricker]

@Richard_Parker

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?

Yes.

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).

Nope.

The “government paid staff” excludes the individual person in question. That was the whole point of the Loudon County decision: the individual who created the Facebook page was a government employee purportedly acting in her private capacity. There’s no question, in other words, in this type of inquiry that we have a single government-paid person in play; the question is whether or not others are involved as part of their duties.

Nor is it a government device: Trump is using the same equipment he used as a private citizen.

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.

No, that wasn’t the key determinant.

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.

Trump pays, Trump controls. Not the US government: Trump. No filters, ni spellchecks, no committee to keep on message as opposed to ranting controls this media. Trump does.

[Richard_Parker]

@Bricker

The “government paid staff” excludes the individual person in question. That was the whole point of the Loudon County decision: the individual who created the Facebook page was a government employee purportedly acting in her private capacity. There’s no question, in other words, in this type of inquiry that we have a single government-paid person in play; the question is whether or not others are involved as part of their duties.

Nor is it a government device: Trump is using the same equipment he used as a private citizen.

There is lots of evidence that paid staff post tweets on Trump’s account. For a while, even post-election, you could tell which ones were staff tweets by which device they came from (and the content, natch). And I don’t think you actually know either way whether the government is paying for Trump’s device and/or phone account. Knowing Trump, he is probably billing the crap out of us.

So I think your “nope” is less correct than my "unknown but may well point to government action.’

@Bricker

No, that wasn’t the key determinant.

Here’s what Volokh posted, and I have no reason to disagree:

When the Facebook page is run by an individual officeholder, such as Phyllis Randall, chair of the Board of Supervisors, it might — under the right circumstances — be viewed as not a government project, and thus not subject to First Amendment constraints. “The mere fact that Defendant Randall holds public office does not subject every social media account she controls to First Amendment scrutiny.” “Defendant Randall’s discussion of matters related to her work can, by itself, render an otherwise private Facebook page governmental for purposes of the First Amendment.” . . . But I note again that this falls near a borderline that has not been mapped in detail. (emphasis mine)

I have not read the cases, so I cannot say if that quote is taken out of context, but it sure seems to suggest that the content of the posts is really important to deciding whether this crosses the line.

In any event, I remain of the view that this is a colorable, if ultimately wrong, claim. I’m curious why you disagree with Volokh on that. Where do you think he has gone wrong in his analysis?

[Bricker]

@Richard_Parker

Knowing Trump, he is probably billing the crap out of us.

It should be uncontroverted that in October 2016, Trump owned a smartphone and operated the Twitter account without billing the government.

If you contend that changed after November of after January, it’s for you to point to some evidence for the claim beyond “Well, if I know Trump,” speculation.

So I think your “nope” is less correct than my "unknown but may well point to government action.’

So I think the reverse is true. Show your evidence if you want to make a claim that things changed.

In any event, I remain of the view that this is a colorable, if ultimately wrong, claim. I’m curious why you disagree with Volokh on that. Where do you think he has gone wrong in his analysis?

He didn’t directly address Goulart v. Meadows and the statement that “A designated public forum can only be created by ‘purposeful government action’ in which ‘the government must intend to make the property `generally available.’” Surely this is no less true if the forum is private non-governmental at the outset. Trump’s actions never made it “generally available” for discussion; the point of the feed was to allow him to offer hsi opinions and views about events.

[Richard_Parker]

I’m saying “unknown” and you’re saying “nope,” so your attempt to shift the burden of evidence is not just unpersuasive, but logically nonsensical.

Beyond that, you’ve ignored the circumstantial evidence that takes unknown closer to “yep” including the multiple devices that use the account.

[Bricker]

@Richard_Parker

I’m saying “unknown” and you’re saying “nope,” so your attempt to shift the burden of evidence is not just unpersuasive, but logically nonsensical.

We start with a clear “nope,” October 2016.

For every change you contend pushes us closer to “yup,” (that is, into “unknown,”) it;s on you to show the evidence for. You can’t just speculate that the Trump is probably billing the government and therefore we’re now in unknown territory.

Beyond that, you’ve ignored the circumstantial evidence that takes unknown closer to “yep” including the multiple devices that use the account.

What devices are those?

[Czarcasm]

Does it matter if the tweets from Trump’s private Twitter account are official or not and/or if the President’s own Press Secretary says they are?
According to the Ninth Circuit Court of Appeals, the answer is a definite “Yes”.
Ain’t that just adorable?

[Bricker]

@Czarcasm

Does it matter if the tweets from Trump’s private Twitter account are official or not and/or if the President’s own Press Secretary says they are?
According to the Ninth Circuit Court of Appeals, the answer is a definite “Yes”.
Ain’t that just adorable?

I can’t find the portion of the Ninth Circuit saying it matters for the purpose of determining whether the Twitter account is a public forum. Can you quote the portion of the opinion that makes that finding?

I bet you can’t. I bet it isn’t there. I bet the court didn’t actually say “yes,” to that question. I bet they said yes to some other question, and not answering the subject under discussion here.

[Czarcasm]

@Bricker

I can’t find the portion of the Ninth Circuit saying it matters for the purpose of determining whether the Twitter account is a public forum. Can you quote the portion of the opinion that makes that finding?

I bet you can’t. I bet it isn’t there. I bet the court didn’t actually say “yes,” to that question. I bet they said yes to some other question, and not answering the subject under discussion here.

Is that how you win your arguments? “They wouldn’t accept my bets-That means I’m right!” I’m not playing a game here. I am genuinely concerned as to the future of my country, and if think that something bad is in line to happen, and it does, I don’t think of myself as a “winner”-I think of it as a loss to the country.

[Shodan]

That isn’t how Bricker wins arguments; it’s how you lose them. Where in the opinion does the Ninth say it matters for the purpose of determining whether the Twitter account is a public forum?

Regards,
Shodan

[Czarcasm]

Where is it written that only direct quotes from court cases count as cites in this forum? I linked to a news article that was reporting on the Court’s decision. If that is no longer acceptable in this forum, just let me know.

[Shodan]

Where in the opinion does the Ninth say it matters for the purpose of determining whether the Twitter account is a public forum?

Regards,
Shodan

[Bricker]

@Czarcasm

Where is it written that only direct quotes from court cases count as cites in this forum? I linked to a news article that was reporting on the Court’s decision. If that is no longer acceptable in this forum, just let me know.

You linked to an irrelevant article about a case that wasn’t the subject of this thread?

Isn’t that a hijack?

Or you linked to a story you believed was relevant, and now can’t supply the quote that shows relevancy?

Or something else?

[Czarcasm]

@Shodan

Where in the opinion does the Ninth say it matters for the purpose of determining whether the Twitter account is a public forum?

Since I am unschooled in the ways of laws and the workings of courts, it would be a disservice if I attempted to interpret what they wrote, don’t you think? That’s why I relied on a news article that that gave a brief overview of what happened and why it happened.
Now, assuming your responses so far mean you, Shodan, understand what they wrote better than I possible can and not that you are merely parroting what Bricker said, perhaps you can explain to us what that article got wrong?

[SingleMalt]

For what it’s worth, here is Dahlia Lithwick at Slate has to say about the implications of the 9th’s opinion. It’s not that the 9th directly says the President’s tweets are a public forum, but rather that the “president’s Twitter commentary clearly falls in the category of speech that belongs in the legal arena.” This may lend support to the “public forum” argument.

Your opinion may vary. That’s what the courts are for.

[Czarcasm]

@Bricker

You linked to an irrelevant article about a case that wasn’t the subject of this thread?

Isn’t that a hijack?

Or you linked to a story you believed was relevant, and now can’t supply the quote that shows relevancy?

Or something else?

Are you saying that talking about whether the President’s Twitter posts are official or not are on topic, but my responses aren’t?
If this is a hijack, you are participating in it fully.

[Czarcasm]

@SingleMalt

For what it’s worth, here is Dahlia Lithwick at Slate has to say about the implications of the 9th’s opinion. It’s not that the 9th directly says the President’s tweets are a public forum, but rather that the “president’s Twitter commentary clearly falls in the category of speech that belongs in the legal arena.” This may lend support to the “public forum” argument.

Your opinion may vary. That’s what the courts are for.

Thank you for the clarification.

[Bricker]

@Czarcasm

Is that how you win your arguments? “They wouldn’t accept my bets-That means I’m right!” I’m not playing a game here. I am genuinely concerned as to the future of my country, and if think that something bad is in line to happen, and it does, I don’t think of myself as a “winner”-I think of it as a loss to the country.

The purpose of betting is to demonstrate that your belief in a particular outcome is genuine.

Numerous studies have shown that real-world consequences imposed on political predictions and knowledge sharply decrease partisan influence and swings. In other words, when money is on the line, people have a stronger tendency to evaluate facts, not wishes. See, e.g. , “Partisan Bias in Factual Beliefs about Politics.” Bullock, John G., Alan S. Gerber, Seth J. Hill and Gregory A. Huber. 2015. Quarterly Journal of Political Science: Vol. 10 (No. 4): 519-78.

The abstract in pertinent part:

Partisanship seems to affect factual beliefs about politics. For example, Republicans are more likely than Democrats to say that the deficit rose during the Clinton administration; Democrats are more likely to say that inflation rose under Reagan. What remains unclear is whether such patterns reflect differing beliefs among partisans or instead reflect a desire to praise one party or criticize another. To shed light on this question, we present a model of survey response in the presence of partisan cheerleading and payments for correct and “don’t know” responses. We design two experiments based on the model’s implications. The experiments show that small payments for correct and “don’t know” answers sharply diminish the gap between Democrats and Republicans in responses to “partisan” factual questions. Our conclusion is that the apparent gulf in factual beliefs between members of different parties may be more illusory than real.

[Czarcasm]

The fact that you expect small payments for being right is rather off-putting, actually.