Holly O’Reilly tweeted a GIF at the end of May to President Trump on his @realDonaldTrump account. The image displayed an awkward-looking moment between the president and Pope Francis with the caption, “This is pretty much how the whole world sees you.”
Almost immediately, she was blocked from his account.
Joe Papp had a similar experience about a week later, when he tweeted a question to Trump. “Why didn’t you attend your #PittsburghNotParis rally in DC, Sir?” he asked, adding “#fakeleader.” Trump blocked him too.
In response, Papp tweeted an image of his blocking with the message “a @POTUS so mentally weak & intolerant of dissent he blocks U.S. citizens critical of his politics from even reading his latest pronouncements.”
Once blocked, neither O’Reilly nor Papp could view Trump’s tweets or comment in the threads created by them.
Normally, a user blocking another on Twitter is no big deal. It happens every day. Some might consider it petty but nobody tries to make a lofty constitutional issue out of it.
But Trump is the president. And just Tuesday, White House press secretary Sean Spicer said the Trump’s tweets are “considered official statements by the president of the United States.” And since his account, like others, provides the opportunity for a response, some think that would make it a kind of public forum.
If that’s the case, some think Trump’s blocking of users is a violation the First Amendment, the equivalent of the government kicking citizens out of a public square or town hall meeting because it doesn’t like their political viewpoints.
That may be a stretch, in part, because the Twitter account is Trump’s personal account.
But among those willing to make the leap is the Knight First Amendment Institute at Columbia University. It sent a letter to the president on Tuesday requesting that he unblock two particular users: O’Reilly and Papp. It was signed by the Knight Institute’s founding director Jameel Jaffer and senior Knight Institute attorneys Katie Fallow and Alex Abdo.
The Knight Institute claimed that a space doesn’t have to be physical to constituent a forum — instead it could be “metaphysical.” As its letter said:
Your account constitutes a designated public forum. It is a forum for expression in which you share information and opinions relating to government policy with the public at large and in which members of the public can engage you, engage one another, and sometimes elicit responses from you. Your Twitter account is a designated public forum for essentially the same reasons that open city council meetings and school board meetings are.
That’s key, because if that’s the case and the government has created a public forum, “it may not constitutionally exclude individuals on the basis of viewpoint.”
And, as Abdo told The Washington Post, “The people that we talked to all seemed to have been blocked after tweeting pretty direct criticism at the president. That in our mind raised a pretty suggestive inference they were blocked on account of their views.”
He could not confirm how many people the Knight Institute spoke with, though said since sending the letter and posting it online, “We’ve had a dozen or more people … who have reached out to us.”
One main question, Abdo said, is whether the account is considered a personal or an official one.
Trump tweets from two different accounts. One is @POTUS, the official Twitter account of the presidency, which has 18.6 million followers.
His more famous and closely watched account, though, is @realDonaldTrump, which he used well before the election and on which he has more than 31.5 million followers. This is the account he has used to routinely insult the mainstream media, offer his opinion about issues such as the “travel ban” and issue statements about upcoming policy changes — such as when he would announce his decision on the Paris accord.
“This is not a Twitter account dedicated to personal interests and family affairs,” Abdo said. “This is for all intents and purposes the official account of the White House.”
Abdo said he isn’t aware of another case involving a public official blocking his or her constituents on Twitter. It’s unlitigated and lacks a clear precedent.
Among those who think it’s a stretch is constitutional law scholar Michael W. McConnell, the director of Stanford’s Constitutional Law Center and, from 2002 to 2009, a judge on the U.S. Court of Appeals for the 10th Circuit.
“The president is entitled to communicate with whoever he wants to whenever he wants to,” McConnell told The Post. “No one has the right to compel someone else to communicate with them.”
“If Trump or anyone else wants to limit his Twitter audience, he can do that,” McConnell added. “As can any other public official or any private person.”
And even in a public form, McConnell said, presidents can “go to public arenas and meet with audiences of their choice. Public forum doctrine has to do with the right of people to speak, not the right of anyone being forced to communicate with them.”
Abdo, though, argued that an important part of the public forum is the exchange of ideas. When Trump sends out a tweet, other users reply to it, creating a long thread that sometimes includes thousands of tweets.
“The significant harm, and one for which there aren’t obvious workarounds, is that you’re excluded from the comment threads discussing the president’s tweets,” Abdo said. “That is the forum that is created by each of the tweets about his policies. … You could create another account and tweet anonymously to those threads, but what you’re excluded from is contributing to those debates as yourself.”
Others, such as UCLA law professor Eugene Volokh, think the question is “borderline.”
On the one hand, as he wrote in his blog hosted by The Washington Post, “my sense is that the @RealDonaldTrump account — though run by Trump on government time and from government property — is the work of Trump-the-man … just as it was before November, and not Trump-the-president. His decisions about that account are therefore not constrained by the First Amendment.”
But “what if I’m mistaken,” Volokh wrote, “and it’s viewed as run by Trump in his capacity as a government actor, and thus subject to the First Amendment? Can he then block users?
The most constitutionally significant effect would be that blocked users apparently can’t post to Twitter comment threads, at least without some complicated workarounds. If @RealDonaldTrump is seen as a governmental project and thus a limited public forum, then viewpoint-based exclusion from posting to such threads likely would be unconstitutional, just as viewpoint-based exclusion from commenting on a government-run Facebook page would be.
What worries Abdo most is that “whatever is allowed by the president will quickly trickle down to more local officials.”
“That comes at a real cost,” Abdo said. “If even those more local forums become echo chambers by virtue of the ability to block, that’s a real problem.”
At present, of course, this is only a letter. If Trump does not unblock O’Reilly and Papp, however, “we will very seriously consider litigation,” Abdo said.
As of early Wednesday morning, the White House had not responded to the Institute’s letter.
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