Jeremy Lifter, Contributing Member 2019-2020Intellectual Property and Computer Law Journal
Social media is an evolving form of communication. Take for example Twitter, ever since its founding in 2007 Twitter has grown exponentially. It allows users to publish their thoughts on any topic they wish, users can post photos, videos or text and reply to other users. Twitter itself allows users who are members of the site to post “tweets,” which are statements limited to 280 characters. These “tweets” can range in subject from anything the users wants to post, users can also post video, pictures or other digital mediums. Users can see “tweets” of people they follow and anyone else who makes their “tweets” public, they can also reply to these “tweets” which creates a threat of the original message and the replies from other users. In addition to its members, the general public has the ability to see others tweets if they choose to make their account public.
Twitter has grown from simply a place for individuals to share their thoughts to a place that journalists and politicians utilize to share news, policy updates, and policy goals. People from every walk of life have joined twitter since its founding including President Donald Trump, who operates the Twitter account with the name of “@realDonaldTrump,” and has done so since 2009. The President continues using both this account, and the “@POTUS” account, which was created under President Obama to serve as the official account for the President of the United States. President Trump has favored use of the “@realDonaldTrump” account, even using it to announce the nomination of Christopher Wray as FBI Director. Additionally, the President has utilized other features of Twitter which allow an account holder to “block” another user.
This action of “blocking” users has been the focus of several lawsuits against the President, namely Knight First Amendment Institute at Columbia University v. Trump, where the plaintiffs challenged the constitutionality of the President and other government officials blocking users on Twitter. The Southern District Court considered two things, to determine to what extent if any, the President was allowed to block users. First, it had to decide if the President’s Twitter account was controlled by the government in an official capacity or was controlled by him in a personal capacity. Second, the Court must determine if it was subject to the forum analysis.
To determine how the President’s account was controlled, the Court analyzed whether the account constituted governmental speech and property. The President claimed the account was established prior to his inauguration as President, thus the Twitter account must be considered private and is not subject to First Amendment restrictions. However, this argument failed as “[t]he past history of characterization of a forum may well be relevant; but that does not mean a present characterization about a forum may be disregarded.” So, although it was created as a private account, the Court looked to the present use of the account rather than the past use when determining if the account belonged to the government. The Court discussed the content of the tweets. Frequently, the President used the “@realDonaldTrump” account to tweet announcements of policy and appointments of government officials. Additionally, Sean Spicer, who was Press Secretary at the time, said that tweets from the President’s account should be considered “official statements by the President of the United States.” Under these facts both the lower court and appellate court concluded the account was controlled by the government. Therefore, it is subject to the First Amendment and the forum analysis established in Perry.
Perry utilized the First Amendment doctrine of a forum analysis, Knight and others like it have extended this analysis into the modern computer world. To determine what government regulations are permissible, the Court must conduct a Public Forum Doctrine Analysis. Under this analysis there are three types of forums, the first is a traditional public forum, which has and will always be open to the public, including, places such as parks and roads. The second type is the designated unlimited forum, which is “public property which the state has opened for use by the public as a place for expressive activity.” The third category is a designated limited forum, which “the state may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.” Each of these forums hinge on the public ownership of the forum either for any purpose, in the case of a traditional public forum, or a specific purpose for a limited public forum.
The Court in Knight determined that the Twitter account “@realDonaldTrump” was used for government purposes and was a designated limited public forum, however, this is only limited to the public’s interaction with his tweets, not the original tweet itself. The government attempted to persuade the Court that, when tweeting, the President was engaging in government speech. If tweets were deemed to be government speech then “…he would not have been violating the First Amendment.” However, the replies to the President’s tweets are not government speech according to the Court, so they are not exempt from the forum analysis.
In analyzing whether the replies to the President’s tweets were a public forum “courts look ‘to the policy and practice of the government’ as well as ‘the nature of the property and its compatibility with expressive activity to discern the governments intent.’” Using this test, the Court found the President “[…]intentionally opened for public discussion…” his account and this made the replies to his tweets a designated public forum. The account was ruled to be a public forum; therefore, the President was prohibited from viewpoint discrimination. As a result, the President cannot block users from accessing the information based on the specific viewpoint of the users. The President engaged in viewpoint discrimination by blocking other twitter users based on the opinions they expressed about the President. The Court continues, “… once he opens up the interactive features of his account to the public at large he is not entitled to censor selected users because they express views with which he disagrees.”
When the Court ruled that the replies to the President’s tweets were public it also found that the replies were public. Twitter itself is a private company and it solely owns all rights to its service. Upon creating an account, users agree to Twitter’s terms and conditions, which, among other things, provide Twitter the ability to suspend or deactivate accounts. Through these terms and conditions, users agree to be bound by Twitter’s policies and do not own their physical accounts but are simply using a service on Twitter. Furthermore, Twitter is allowed to implement its own prohibitions on users speech that would not be allowed if the government made the same regulation on government property, meaning that “… Twitter decides what happens on its platform — even on Trump’s feed.” So, a Twitter user who is not blocked by the President can still be prohibited from viewing his tweets as well as the replies. The President, or any other official, has no say in this nor should they, Twitter should be free to decide who can use its platform and who cannot. This includes being able to see the President’s tweets and the replies to the tweets.
In extending the forum analysis beyond the traditional physical world, the Court relies on Rosenberger v. Rector & Visitors of Univ. of Virginia, which applied the forum analysis to “a forum more in a metaphysical than in a spatial or geographical sense.” This opens the door for the Court to extend the forum analysis well beyond anything that was conceived in when Rosenberger was decided in 1995. There are numerous other courts who have utilized this language about a metaphysical space to extend the forum analysis restrictions to social media and the Internet at large.
This could be dangerous going forward on two fronts. First, it forces courts to decide what a metaphysical space is. Courts have previously held things such as a schools mail system and a charitable fundraising drive as a metaphysical forum. Second, it challenges the courts to determine whether an account used by a government official is owned by the government and therefore subject to regulations that bind other government owned areas.
This evolving area of jurisprudence greatly affects the law going forward. Currently, courts reserve government speech in designated limited public forums to be subject to the viewpoint neutral restrictions. However, if society continues to utilize social media in place of previously established public forums, eventually social media may be established as the new quintessential public place.
1 Twitter Microblogging Service, Encyclopedia Britannica (December 7. 2019), https://www.britannica.com/topic/Twitter.
2 Economic and Social Research Council, What is Twitter and Why Should You Use it?, (Dec. 1, 2019), https://esrc.ukri.org/research/impact-toolkit/social-media/twitter/what-is-twitter/.
 Knight First Amend. Inst. at Colum. Univ. v. Trump, 928 F.3d 226, 230 (2d Cir. 2019).
 Abby Ohlheiser, So, What Happens to the @POTUS Twitter Account Now?, Washington Post (Jan. 20, 2019), https://www.washingtonpost.com/news/the-intersect/wp/2017/01/20/so-what-happens-to-the-potus-twitter-account-now/.
 Knight First Amend. Inst. at Columbia Univ. v. Trump, 302 F. Supp. 3d 541, 553 (S.D.N.Y. 2018).
 Id. at 551.
 Id. at 565 (see Cornelius v. NAACP Legal Def. and Educ. Fund, Inc., 473 U.S. 788, 801 (U.S. 1985)).
 Knight, 302 F. Supp 3d 541 (quoting Ridley v. Mass. Bay Transp. Auth., 390 F.3d 65, 77 (1st Cir. 2004)).
 Knight, 302 F. Supp 3d 541.
 Id. at 553.
 Knight, 928 F.3d at 230.
 Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983).
 Id. at 45.
 Knight, 928 F.3d at 230.
Id. at 239.
 Id. at 237 (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, 473 U.S. 788, 801 (1985)).
 Knight, 928 F.3d at 230.
 Signing Up with Twitter, Twitter, (Dec. 6, 2019), https://help.twitter.com/en/using-twitter/create-twitter-account.
 Noah Feldman, The Courts Still Don’t Understand Trump’s Twitter Feed, Bloomberg Opinion (July 9, 2019, 4:24 PM), https://www.bloomberg.com/opinion/articles/2019-07-09/appeals-court-asks-wrong-question-in-trump-twitter-blocking-case.
 Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995).
 See, Davidson v. Randall, 912 F.3d 666 (4th Cir. 2019); see also, Robinson v. Hunt City Tex.,921 F.3d 440 (5th Cir. 2019).
 See, Perry, 460 U.S.; see also, Cornelius, 473 U.S.