Trump Can’t Block His Hostile Twitter Followers. It’s Against the 1st Amendment

This article first appeared on Just Security.

President Donald Trump may be the first resident of the White House to be a prolific user of Twitter, but he probably won’t be the last.

Indeed, government officials around the country are already taking to Twitter and other social media platforms to speak to their constituents, hear from them, and facilitate an exchange of ideas with and among those constituents.

That makes Trump’s practices on Twitter not merely a temporary curiosity but, instead, a harbinger of politics in the digital age—and a test case for how existing law should apply in this space.

Although politicians’ use of social media can enhance opportunities for important public debate, we believe that one aspect of Trump’s practices runs afoul of the First Amendment.

GettyImages-863195884 A library exhibiting President Trump's tweets at Union Station on October 19, 2017 in Chicago, Illinois. Scott Olson/Getty

That’s why, today, our Institute for Constitutional Advocacy and Protection at Georgetown University Law Center is filing an amicus brief on behalf of leading First Amendment scholars in support of the Knight First Amendment Institute’s lawsuit against the President for engaging in impermissible viewpoint discrimination by selectively blocking critics from his @realDonaldTrump Twitter feed.

Our brief focuses on the ways in which this President has deliberately chosen to use certain features available on Twitter to make the @realDonaldTrump feed a public forum, akin to a public park or an open town hall meeting. This is a key issue in the case, because courts have long held that the First Amendment prohibits the government from engaging in viewpoint discrimination in public fora.

President Trump conducts official government business on this feed, and the White House has acknowledged as much when, for example, referring Congress and the public to tweets on @realDonaldTrump as official statements by the President. So, the feed is much more than the periodic musing of a private individual.

What’s more, the feed isn’t just a one-directional mouthpiece for the White House like WhiteHouse.gov/blog. Rather, President Trump allows replies from the public on his feed; receives thousands of them near-instantaneously; and frequently responds to those replies, usually by retweeting them or tweeting back.

That makes the feed not government speech but a twenty-first century town hall meeting—a public forum. And with the creation of such an arena come constitutional constraints. President Trump’s decision to block Twitter users from viewing or replying to @realDonaldTrump because they dared to criticize him or his policies violates those constraints.

We and our signatories—who include Erwin Chemerinsky, Lyrissa Lidsky, and Larry Tribe —think the stakes in this case are high. What President Trump is doing on Twitter foreshadows a sharp deterioration in political engagement.

Today, Americans’ exchange of political ideas happens increasingly on social media platforms like Twitter. When government officials like President Trump establish and maintain a Twitter feed for the purpose of fostering the transmission of ideas to, from, and among the public, does the First Amendment permit them to shut out critics and allow only supporters to express themselves? We don’t think so.

If the court were to accept the government’s argument that the @realDonaldTrump feed is not a public forum, it would allow the President to exploit his predominant means of dialogue with the American public as an increasingly unchallenged podium in which only applause greets his proclamations.

This is not what Americans should expect when they scroll through a government official’s Twitter feed and read the comments made by others in response to the official’s statements.

They believe—indeed, in the absence of stated reason to think otherwise, they are entitled to believe—that they are viewing something of a representative cross-section of the interested public’s reactions to the official’s pronouncements and approach to governance.

Seeing sometimes thousands of responses and a wide range of points of view, they believe that they are seeing all, or at least that all who are interested have the same opportunity to engage.

But in fact that’s a mirage, at least when it comes to @realDonaldTrump, due to the President’s deliberate actions to skew the conversations sparked there.

Notably, such practices have become a familiar playbook for authoritarian regimes. For them, cultivating a false impression that political leaders are universally revered or squelching, as much as possible, the scale of dissent is critical to warping the public’s understanding of how those leaders are truly regarded and, in turn, to quashing democratic impulses.

Allowing our government leaders to use the same tactics would be a decidedly unhealthy direction for our democracy. If President Trump is permitted by a court to employ these tactics with respect to any fraction of the public, he would presumably be justified in doing it for much more.

Twitter has changed where political discourse occurs in this country, as has this President’s innovative use of that medium. But the Knight Institute’s lawsuit provides a key opportunity to establish that the use of new technologies has not altered the principle that, where the government creates a space for a vigorous back-and-forth among and with the citizenry, a public forum exists.

Maintaining fidelity to the First Amendment’s prohibition on viewpoint discrimination will go a long way toward maintaining robust democratic dialogue in the digital age.

We and our signatories believe that a decision in the Knight Institute’s favor can prevent modern venues like Twitter from being exploited by government officials to silence critics and bask in artificial adulation.

Joshua Geltzer is the founding Executive Director of the Institute for Constitutional Advocacy and Protection as well as Visiting Professor of Law at Georgetown University Law Center. He is also a fellow in New America’s International Security program. Geltzer previously served as Senior Director for Counterterrorism at the National Security Council, as Deputy Legal Advisor to the National Security Council, and as Counsel to the Assistant Attorney General for National Security at the Department of Justice.

Amy Marshak is an Associate from Practice at the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center. She previously served as an attorney with the National Security Division of the U.S. Department of Justice.

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