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Prepared by Stephen D. Solomon, Editor First Amendment Watch, NYU’s Arthur L. Carter Journalism Institute

Today’s students are growing up connected – tweeting, live streaming, posting on a seeming 24-7 cycle. The many controversies involving Facebook, Twitter, and other social media provide an excellent opportunity to teach First Amendment principles in a relatable way.

The actions of some public officials who have blocked critics from their Twitter and Facebook accounts is one such opportunity to engage students in the First Amendment.

Unhappy with criticism, Governors of Maine, Kentucky, and Maryland have blocked followers, as have local officials in places including Wisconsin, Virginia, and Michigan. These blocking actions have instigated a strong reaction, some involving lawsuits. The Twitter case involving President Donald Trump has been the most prominent in the news—a federal judge ruled in May 2018 that the President may not block Twitter followers because doing so violates their right to freedom of speech under the First Amendment. The Trump-Twitter case involves several fundamental First Amendment principles that are important for students to understand. The issues emerge from the fact that when President Trump selectively blocks individuals from his Twitter account—all of the blocked individuals have criticized him—he is restricting their ability to engage in speech about public issues that he has raised in his tweets. On May 23, 2018, a federal district judge ruled that @realDonaldTrump is an official government account and a designated public forum. She ruled that Trump violated the First Amendment by blocking followers based on their viewpoint.

Learning Objectives
  1. Government vs. private: to learn the difference, for purposes of the First Amendment, between government restrictions and private restrictions on speech.
  2. The public forum: to learn what is a public forum, and under what circumstances, if any, may the government impose restrictions on speech there.
  3. Regulating the viewpoint expressed: to learn that the First Amendment precludes the government from discriminating based on the viewpoint expressed.

First Amendment Applies to Government, Not Private, Regulations

One principle to emphasize to students is the difference, for purposes of the First Amendment, between government restrictions and private restrictions on speech. The First Amendment only applies to actions by government and government officials to restrict speech. Actions restricting speech by private individuals and private institutions, including corporations, do not typically raise First Amendment concerns.

So a major question here is whether @realDonaldTrump is Trump’s own private account or an official government account. If the former, he is free to cut off whomever he wants. If the latter, his actions in cutting off critics would be subject to First Amendment limitations. Trump has argued that @realDonaldTrump is private, started in March 2009, years before he became President. However, he uses it for official announcements and comments about public matters, which may make it an official government account today.

See: Plaintiffs Unblocked By @realDonaldTrump; Justice Department Appeals Ruling

Questions for Discussion
  1. For purposes of the First Amendment, what is the difference between a personal Twitter account and an official government account run by President Trump?
  2. If @realDonaldTrump were a personal account of President Trump, what would you expect to see in terms of tweets? If it were a government account, what would you expect to see?
  3. Examine @realDonaldTrump for clues as to whether this is a personal or government account. Look at the images and descriptions. What does this tell you? Also, examine President Trump’s tweets on @realDonaldTrump for the past few weeks. Do all the tweets have to do with official government business? Provide some examples. What do you conclude about whether @realDonaldTrump is a private or government account based on the last few weeks of his posts?

The Public Forum—Streets, Sidewalks, Parks, and More…

Discussion of President Trump’s Twitter account leads to a second First Amendment principle regarding the concept of the public forum. Is @realDonaldTrump a public forum?

A traditional public forum includes streets, sidewalks, and parks—spaces that have historically been open to full public participation and comment on any issue. The government can impose reasonable regulations relating to the time, place and manner of speech—such as limiting the volume of loudspeakers in a residential neighborhood. However, any restrictions on the content of speech or viewpoint expressed must meet a compelling state interest and must be narrowly tailored to achieve that interest—a standard called “strict scrutiny” that is very difficult for the government to meet.

On the other hand, a limited or designated public forum is one that has been dedicated more narrowly to certain subjects or classes of speakers. It has not historically been a place for open public discussion, as are public parks in American history. A meeting room at a public university, for example, might be a designated public forum, and it can reasonably be limited only to students or only to a subject scheduled at that time.

Twitter would not be a traditional public forum because it is of such recent vintage. A government Twitter account, though, could be a designated public forum if it is open for public discussion. It can reasonably be limited in subject matter—for example, if a local government opened up a Twitter or Facebook account for discussion of an upcoming school referendum. However, a limited public form may not be restricted by the viewpoint participants express.

See: Public Forums: Protecting Demonstrations in the Streets

Questions for Discussion
  1. What is the difference between a traditional public forum and a limited public forum? Can you provide some examples of each?
  2. If @realDonaldTrump is an official government account (see question #1), is it a traditional or designated public forum? Why? If so, what restrictions could not be imposed on the Twitter feed?
  3. The government is permitted under the First Amendment to regulate public forums based on considerations of time, place, and manner. How might President Trump or other public officials legitimately regulate their Twitter accounts based on these considerations without running afoul of the First Amendment?

Why the Government May Not Regulate the Viewpoint Expressed

Let’s assume that @realDonaldTrump is an official government account. That raises a third First Amendment principle—that the government is not permitted to regulate speech based on the expressed content or viewpoint. Those who supported Trump—or who otherwise didn’t voice criticisms that came to his attention—were permitted to be his Twitter followers. But he cut off a number of people who had voiced strong criticism of his actions. Thus, he cut off people whose views he did not like. This would be discrimination based on the viewpoint they expressed.

Although Trump and the government may not discriminate based on viewpoint, they may impose regulations based on time, place and manner considerations. They have potential justification, for example, for regulating the decibel level of bullhorns in public parks or for banning demonstrations in residential neighborhoods at 2 a.m. They may also cut off Twitter followers who persist in obstructing dialogue or who bring up off-topic private matters in a discussion of public affairs.

See: Plaintiffs Unblocked By @realDonaldTrump; Justice Department Appeals Ruling

Questions for Discussion
  1. The government is not permitted to exclude speakers from a public forum based on the viewpoint that they express. Why is the prohibition on viewpoint discrimination an important rule under the First Amendment?
  2. Examine President Trump’s tweets on @realDonaldTrump for the past few weeks. What subjects does he bring up? Are there responses that agree and disagree with him.? If he blocked those who criticized him, would this pose problems for him under the First Amendment for blocking them? Why?
  3. In 2017 two cases raised similar challenges to public officials who blocked comments on their Facebook pages. Compare the two cases, Davison v. Loudon County Board of Supervisors and Davison v. Plowman. What accounts for the different conclusions of the courts in applying the First Amendment to these two different Facebook accounts?