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Trump's Twitter blocks violate First Amendment rights, appeals court affirms
It's one thing for most of us to block Twitter users who annoy us, but it's a violation of those users' First Amendment rights for the president to do so, a federal appeals court confirmed.
The US Court of Appeals for the Second Circuit on Tuesday issued an opinion supporting an earlier federal court ruling that as long as Donald Trump is a public official, he cannot block people (which prevents them from reading his feed or responding to his comments) he disagrees with on Twitter.
The opinion (PDF) is narrow, specific, and unanimous, with all three judges concurring. "We do not consider or decide whether an elected official violates the Constitution by excluding persons from a wholly private social media account," the judges write, "Nor do we consider whether private social media companies are bound by the First Amendment when policing their platforms."
But, they continue, "The First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise-open online dialogue because they expressed views with which the official disagrees.... Once the President has chosen a platform and opened up its interactive space to millions of users and participants, he may not selectively exclude those whose views he disagrees with."
"The irony of all this," the opinion concludes, "is that we write at a time in the history of this nation when the conduct of our government and its officials is subject to wide-open, robust debate. This debate encompasses an extraordinarily broad range of ideas and viewpoints and generates a level of passion and intensity the likes of which have rarely been seen. This debate, as uncomfortable and unpleasant as it frequently may be, is nonetheless a good thing. In resolving this appeal, we remind the litigants and the public that if the First Amendment means anything, it means that the best response to disfavored speech on matters of public concern is more speech, not less."
[Update 20190713_080924 UTC: Part of what distinguishes this case from other politician's use of twitter is that on June 6, 2017 it was reported:
At the daily White House press briefing, press secretary Sean Spicer said the President's tweets are considered official White House statements, saying the President is the "most effective messenger on his agenda."
--martyb]
(Score: 4, Interesting) by Arik on Friday July 12 2019, @07:06AM (6 children)
The court explicitly rejected this argument. It's not enough that you can read only, that may indeed satisfy *your* individual right to access but it does not satisfy the right of all the other people that make up our democracy to hear your response.
The whole point to the first amendment is to guarantee a free and open public discourse. Read only access does not permit you to join the discourse. It does not permit the rest of us to hear what you have to say in response. And we have a right to hear you.
If laughter is the best medicine, who are the best doctors?
(Score: 4, Insightful) by shortscreen on Friday July 12 2019, @08:28AM (5 children)
Twitter themselves (and every other service) can block people from commenting at will. How is Twitter's selective blocking different than a public official's selective blocking? Does Trump just need to post his own personal Terms of Service so that he can have some process to point at when he blocks someone?
If Trump were to speak during a radio broadcast, do I now have a first amendment right to call in to the station and have my "response" also broadcast?
If Twitter blocks me from commenting because I don't have TLS 1.2 or Javashit enabled, is that a violation of my rights?
(Score: 2) by Arik on Friday July 12 2019, @08:36AM
Exactly.
Expect their lawyers to be contorting into unusually interesting shapes to answer just that question, in the coming months.
"Does Trump just need to post his own personal Terms of Service so that he can have some process to point at when he blocks someone?"
Nah he just can't do it.
Seriously, go, you know, ick, I can't believe I'm saying this.
Install a VM or an old box you can call a waste, and install all the insanity that gets you to twitter on it. Follow the verified account. Spew the nuttiest insults you can think of in response to each and every tweet.
You won't get banned for that. You might get banned if you start adding other accounts etc. But you can heckle the POTUS 24/7 and you will not be banned for that.
This is truly a glorious time, in some ways.
If laughter is the best medicine, who are the best doctors?
(Score: 1, Interesting) by Anonymous Coward on Friday July 12 2019, @03:03PM (1 child)
"If Trump were to speak during a radio broadcast, do I now have a first amendment right to call in to the station and have my "response" also broadcast?"
The FCC used to require broadcast stations to air opposing opinions, but not any more.
remember
"The opinions of the speaker may not be the views of the station or management. Parties with opposing views may be given time to air those views."
(Score: 0) by Anonymous Coward on Friday July 12 2019, @08:27PM
FTFY:
(Score: 3, Insightful) by DeathMonkey on Friday July 12 2019, @06:27PM (1 child)
How is a private entity's censorship different than government censorship? Really?
Reason #1: The fucking CONSTITUTION!
(Score: 2) by shortscreen on Friday July 12 2019, @07:24PM
If you acknowledge that what Twitter does is censorship and the only difference here is who clicks the button, it still raises
questions about the permissable conduct of government agents in various forums.
What if I contribute some text to a Wiki article and then the change is reverted by someone on a government IP? Government censorship?
Is an incumbent candidate's campaign FB page / mailing list / message board fair game? How about a physical bulletin board in the town hall? Can the cops ask youtube to take down a video of a shooting or whatever?
Do we want to use a very broad definition of censorship or not?