Knight Institute v. Trump: Is President Trump’s Personal Twitter Account Subject to the First Amendment?

Twitter has undoubtedlybeen a hegemon amongst social media platforms, particularly because it is aplatform used by some of the world’s most influential people and companies. Thegovernment, and President Trump, is no exception, as President Trump uses hispersonal Twitter account, @realDonaldTrump to make comments, statements, anddirect questions to the public.

TheKnight First Amendment Institute filed suit in the Southern District of NewYork, claiming that President Trump unconstitutionally blocked several peoplefrom the @realDonaldTrump account. The account blockage means that thoseprivate citizens who wish to see or reply to the President’s Tweets cannot doso, and those citizens would be unable to see the Tweets of other privatecitizens who reply to President Trump’s Tweets. The suit alleges that PresidentTrump, through his personal Twitter account, blocked those private persons becausethey criticized the President and his policies.The basis for the suit stems from a First Amendment claim—that the government cannotengage in viewpoint discrimination in a “public forum” without meeting strict scrutiny.

         The Supreme Court of the United States has defined a publicforum as governmental property that “has immemorially been held in trust forthe use of the public.” Perry Educ. Ass’nv. Perry Local Educators’ Ass’n. Traditional public forums have been areassuch as sidewalks or public parks.However, can the President’s Twitter account be said to constitute governmentalproperty? Can the account be said to constitute governmental property that hasimmemorially been used for the public? Because of Twitter’s relative recency asa communicative platform, and the fact that Twitter itself is a privatecompany, these questions can be difficult to answer. But, they likely need notbe answered because even if President Trump’s Twitter account was not deemed apublic forum, it may likely be deemed a “designated public forum” and muststill meet the same strict scrutiny standard.

         Designated public forums are areas typically not open for the public but were made open to the public for the expression of ideas. This definition gets around the problem with the “public forum” definition, because it does not matter whether Twitter or the President’s Twitter account is governmental property. Instead, the question is simply: Did the government designate or use Twitter as a place for expression to and from the public? The Southern District Court of New York answered yes. It found President Trump’s Twitter account to be a designated public forum, and although the appeal is pending, it held that the President violated the First Amendment in its actions to block several Twitter accounts from accessing his page.          If President Trump’s personal Twitter account is deemed a designated public forum, then the President and his communications team must act cautiously when making new attempts to block Twitter users from accessing the President’s Twitter page. The government must meet strict scrutiny, meaning that the blockage of accounts must serve a “compelling state interest” and is “narrowly tailored” to achieve that state interest. Courts do not typically find compelling state interests unless safety is a major concern. Is it really a compelling state interest to block a few Twitter users from talking to the President? And, even if the government can successfully claim a compelling state interest, there may have been less restrictive ways to meet the alleged interest. For example, the government could have communicated with Twitter’s regulatory team to provide warnings to the Twitter users who the President felt offended by.

Ultimately, President Trump will need to tread lightly on social media

Carlos Zapata, 3 April 2019.