The argument made by the Department of Justice before the Second Circuit, that this Trump guy blocks people on Twitter as a regular citizen exercising his First Amendment right, but twits as the president of the United States when he bans transgender people from the military, received the reaction it deserved.
The court appeared skeptical on Tuesday. Peter Hall, one of the judges on the panel, noted the oddity of the Justice Department representing Mr. Trump in his personal capacity. “It’s curious to me that the Department of Justice is here representing, essentially, a private entity,” he said.
Of course, this was a bit on the snarky side, given that it’s not only an “oddity” but incongruity. If Trump used his @RealDonaldTrump twitter account to speak as president, then it’s inconsistent to claim that it was only when he wanted it to be viewed that way, and not when he didn’t. This would be true if the argument was made by his personal lawyer, MIchael Cohen, or by someone on the government payroll defending the right to block of a petty man from the least significant attack at the things he does.
On the one hand, if Trump doesn’t want to hear voices telling him he dresses funny and sucks at being president, he could have muted them. On the other hand, if someone blocked wants to see Trump’s twits but is denied their hate follow, they can always go incognito. Technology has side doors, back doors and front doors. If one gets shut, there’s usually another.
This isn’t to say that the Knight Institute’s twitter case lacks merit, as Judge Naomi Reice Buchwald held otherwise, but it puts the moving target of technology squarely into the line of fire. Because Trump has seized upon Twitter as his way of spewing his views and annoyances to the public, while inexplicably being president, he’s made it his “village square.” As Judge Buchwald concluded, having done so, Trump can’t lock the gate to keep people who use big words out.
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.
There are, obviously, collateral questions arising from this required open twitter policy. If it’s a violation of constitutional rights to block someone on twitter, why then can they be blocked from the West Wing press conferences? But physical limitations, safety issues and the availability of media and C-Span to fill the gap provide distinctions. Then again, if one can’t afford a TV or internet access, these don’t help much. Is internet access a right? Is a screen a right? Does the poor person not have as much right to access what his president has to say as the rich person?
Twitter, beyond getting tons of free publicity out of this battle, even if it still hasn’t quite figured out a way to capitalize on it, has been riding the wave. But the sequalae 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.
Twitter is, undeniably, a private corporation. As such it cannot be subject to the proscriptions of the First Amendment, which prohibits only the government, and those sucking on its teet, from impairing free speech and expression. Some have argued that the Safe Harbor of Section 230 of the Communications Decency Act of 1996 creates a duty to be an open forum, but that’s not the law no matter how often it’s shouted in a crowded theater.
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?
Twitter could come up with a means of allowing otherwise undesirable users to only see, and twit at, the accounts of government officials, and preclude their twitting whatever the Twitter Scolds deem too awful for eyes at anyone else. But they have yet to do so. In the meantime, what if Twitter and the current occupant of the Oval Office had a more sympatico relationship and decided that the Scolds would banish from the village square anyone who twitted unpleasantness at President Gillibrand?
The president might be precluded by the Constitution from blocking some outraged and outrageous person from both seeing her twits and twitting hurtful words in her timeline, but Twitter, the private entity, could. It might not be inclined to do so for Darth Cheeto, but there will eventually be another occupant of office and, well, things change.
The case has implications far beyond the current White House occupant. Public officials everywhere are increasingly turning to Facebook, Twitter and Instagram to interact with constituents beyond town halls and City Council meetings. In turn, judges are beginning to take notice — by accepting the premise that the First Amendment applies on social media spaces. As the Supreme Court recognized in 2017, social media “can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard.” Should elected officials get to decide who can participate in these electronic town halls?
There is no question but that the case has implications beyond Trump, even if the obsession with what’s happening at the moment motivates and consumes the Knight Institute. But the Times similarly takes a narrow and one-sided view of the case, because it shares this myopic grasp of the issue.
If there are rights to be created for conduct occurring on a forum owned by a private entity, converting it into a village square, then the implications for the putative owner of that square, and it’s authority to expel, suspend, silence or block users at will is the flip side of the equation. Just as Trump can’t rationally claim to use Twitter as president one moment by private citizen the next, the medium can’t claim to be a private company when it kicks miscreants off its site one moment but host to the electronic town hall the next.