Orange bad man and the Twitter village square

March 30, 2019Jake DiMare

This week in petty nonsense news, the orange bad man wasted more public resources before the Second Circuit arguing although he sometimes uses Twitter in his official capacity as president, when he blocks someone, he’s acting as a private citizen. The courts were skeptical and ultimately ruled in favor of the plaintiffs on the question of whether or not it is constitutional for Trump to block them.

Turning to the merits of plaintiffs’ First Amendment claim, we hold that the speech in which they seek to engage is protected by the First Amendment and that the President and Scavino exert governmental control over certain aspects of the @realDonaldTrump account, including the interactive space of the tweets sent from the account. That interactive space is susceptible to analysis under the Supreme Court’s forum doctrines, and is properly characterized as a designated public forum. The viewpoint-based exclusion of the individual plaintiffs from that designated public forum is proscribed by the First Amendment and cannot be justified by the President’s personal First Amendment interests.

Over at Simple Justice, Scott Greenfield summed it up rather neatly.

As far as it goes, this seems uneventful, a tempest in a teapot. Mute all you want, but don’t block. Problem solved. Even Orange Man can manage this one.

However, after having relayed the news of the court’s decision Scott took his analysis one step further by suggesting potential outcomes beyond the scope of this ruling.

But the sequelae of a ruling that when a president, or any elected official, uses it as their means of communicating acts of official office turning into a de facto public forum should be scaring the crap out of Jack Dorsey.

He continues.

The hybrid existence created by the case against Blocking Donald, however, raises problems that flow fairly naturally and obviously from the establishment of a right to see Trump’s twits. If Trump can’t block someone because there’s a right to access his twits, can Twitter? How can someone be thrown out of the village square for telling a fired writer to “learn to code,” when the same expulsion prevents him from telling it to the president?

The answer is a definite yes. Twitter is entirely within their rights to toss someone from their platform for violating their terms of service, even while members of local, state and federal governments who use Twitter as a tool in their official capacities may not use Twitter’s features to proscribe the speech of those protected under the First Amendment.

In United States v. Knight the decision clearly identifies the defendants “exert governmental control over certain aspects of the @realDonaldTrump account, including the interactive space of the tweets sent from the account.” I want to pay close attention to the words ‘certain aspects’ because as the decision continues they say “That interactive space is susceptible to analysis under the Supreme Court’s forum doctrines” referring to the interactive spaces covered under the certain aspects the defendants’ control. In other words, it was the government that restricted speech using Twitter, not Twitter restricting speech.

Interestingly, Scott is one of many voices who has had much to say about the nature of Twitter and Facebook and their role in public discourse. Googling the term ‘twitter bias’ will surface a groundswell of right-wing echo chambers busily theory crafting fantasies about new regulations or judicial proceedings that will force private businesses to do things they don’t want to do.

One theory for the possibility this decision now opens Twitter to some new form of regulation or compelled  action is the fact that certain aspects of the service are now ‘properly characterized as a designated public forum.’

In Perry Education Association v. Perry Local Educators’ Association (1983), Justice Byron R. White laid out three categories of government property for purposes of speech:

  • Traditional, or quintessential, public forums;
  • limited, or designated, public forums;
  • and nonpublic forums.

Note there is no “hybrid existence”, as Scott says, under the categories of public/non public forums.

As Twitter is now classified as a ‘limited, or designated public forum’ Perry stipulates:

“Although a state is not required to indefinitely retain the open character of the facility, as long as it does so it is bound by the same standards as apply in a traditional public forum,” White explained. “Reasonable time, place, and manner regulations are permissible, and a content-based prohibition must be narrowly drawn to effectuate a compelling state interest.”

To which I say: So what? This says nothing about the role the limited, or designated public forum plays when the government is not using it. And furthermore, if Twitter decides to challenge they are sure to be moved into the nonpublic forums category where there is more widely defined restrictions the government can impose but it still does not allow them to compel Twitter to change their TOS.

And further, many have criticized Perry and lower courts have successfully limited its practical expression. Again, not that it matters in this case because it has nothing to do with the venue’s terms of service.

Another theory for the possibility that private online communication entities may be compelled to provide the same protections the First Amendment guarantees is Pruneyard Shopping Center v. Robins.

However, I find this also unlikely. For one thing, Pruneyard says nothing about the scope or content of speech, only that private shopping centers must allow it. Private business owners have challenged the case repeatedly and succeeded in holding it to the initially intended scope, allowing them to manage the time, place, and appropriateness of content again and again.

Nothing in Pruneyard or any of the subsequent, relevant case law has ever suggested a mall must allow an individual to follow other shoppers around and harass them with obscenities. Quite the opposite has been true. Thus, even if Tim Pool and Ben Shapiro could wave a magic wand tomorrow and force Jack Dorsey to accept Pruneyard as applicable to Twitter, this would not meet their previously stated expectations.

Critics of Twitter on the right have publicly and repeatedly stated they believe they should be allowed to demean and harass users of the platform without restriction. This is particularly true of transgendered users, with whom less compassionate members of society find it impossible to communicate without insult.

Ironically, even if Twitter dropped every letter of their terms tomorrow, this wouldn’t make the problem go away. It would just shift the burden of policing online bullying and harassment via social media to the criminal justice system. And nobody knows better than Scott what dangers lie down that path.

Scott often likes to point out a favorite saying which he will invariably attribute to people he criticizes:

  • Something must be done!
  • This is something!
  • This must be done!

I’ve begun to understand and appreciate the deeper meaning behind this catchy syllogism, and plan to use it frequently.

Finally, I think it’s valuable to point out Twitter is already part of an ecosystem which is regulated by the FCC. If the right now has an interest in a return to the positive conception of free speech and wants to bring back the fairness doctrine, I say bring it on.

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