Jacob Sollum from Reason Magazine’s Hit & Run Blog has a good piece on the topic this morning.
It will surprise no one familiar with Donald Trump’s attitude toward criticism that people who make negative comments about him on Twitter may find their access to his account blocked. If Trump were an ordinary Twitter user, he would be well within his rights to shun anyone who offends him.
But Trump is not an ordinary Twitter user. He is the president of the United States, and he regularly uses his @realDonaldTrump account—which has about 32 million followers, 13 million more than the official @POTUS account—to trumpet his accomplishments, push his policies, attack his opponents, and complain about his press coverage.
In a letter they sent the president yesterday, lawyers for two blocked Trump critics argue that the way he uses his personal account makes it a “designated public forum,” meaning that banishing people from it based on the opinions they express violates the First Amendment.
“This Twitter account operates as a ‘designated public forum’ for First Amendment purposes, and accordingly the viewpoint-based blocking of our clients is unconstitutional,” write Jameel Jaffer and two of his colleagues at Columbia University’s Knight First Amendment Institute. … “The government may impose reasonable time, place, and manner restrictions in a designated public forum, but it may not exclude people simply because it disagrees with them.”
Not so fast?
UCLA law professor Eugene Volokh likewise thinks the issue is not nearly as clear as Jaffer suggests. Volokh argues that @realDonaldTrump seems more like a personal project than a government program: “My inclination is to say that @RealDonaldTrump, an account that Trump began to use long before he became president, and one that is understood as expressing his own views—apparently in his own words and with his own typos—rather than some institutional position of the executive branch, would likely be seen as privately controlled, so that his blocking decisions wouldn’t be constrained by the First Amendment.”
We have not, at any rate, been here before.
