UPDATE: Sidewalks, Streets, and Tweets: Is Twitter a Public Forum?

UPDATE: Sidewalks, Streets, and Tweets: Is Twitter a Public Forum?

Legal Sidebari

UPDATE: Sidewalks, Streets, and Tweets: Is
Twitter a Public Forum?
Updated July 9, 2019
Update: On July 9, 2019, the U.S. Court of Appeals for the Second Circuit issued a decision affirming the
trial court’s ruling described below. In its opinion, the appellate court concluded that the President had
essentially converted the private @realDonaldTrump Twitter account into a government account by using
it for official business. The court further held that the President had opened up the “interactive space” of
that platform as a public forum for purposes of the First Amendment by making the account’s “interactive
features accessible to the public without limitation.” Consequently, because the First Amendment
prohibits viewpoint discrimination in public forums, the court concluded that the President acted
unlawfully when he blocked users from these interactive spaces on the basis of the users’ viewpoints.
The original post from May 30, 2018, is below.
On May 23, 2018, a federal district court in New York in Knight First Amendment Institute v. Trump held
that the Free Speech Clause of the First Amendment prohibited President Trump from blocking Twitter
users solely based on those users’ expression of their political views. In so doing, the court weighed in on
the now-familiar but rapidly evolving debate over when an online forum qualifies as a “public forum”
entitled to special consideration under the First Amendment. Significantly, the district court concluded
that “the interactive space for replies and retweets created by each tweet sent by the @realDonaldTrump
account” should be considered a “designated public forum” where the protections of the First Amendment
apply. This ruling is limited to the @realDonaldTrump Twitter account but implicates a number of larger
legal issues, including when a social media account is operated by the government rather than by a private
citizen, and when the government has opened up that social media account as a forum for private speech.
The ability of public officials to restrict private speech on Twitter may be of particular interest to
Congress, given that almost all Members now have a Twitter account.
Legal Background
The First Amendment to the U.S. Constitution protects the freedom of speech from infringement by state
or federal government. As a general matter, the Supreme Court has said that the Free Speech Clause
applies to “state action, not . . . action by the owner of private property used nondiscriminatorily for
private purposes only.” Accordingly, the First Amendment ordinarily would not apply to private conduct
on private sites like Twitter. But the Supreme Court has long held that “in places which by long tradition
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or by government fiat have been devoted to assembly and debate, the rights of the State to limit
expressive activity are sharply circumscribed.” Places like sidewalks, streets, and parks provide examples
of “quintessential public forums” that the government must keep open for some First Amendment
activities. Critically, the designation of a given space as a traditional public forum does not always track
government ownership. The Supreme Court has held under certain circumstances that the protections of
the First Amendment apply to streets and sidewalks owned by a private company, but it has also held that
one particular federally owned sidewalk was not a traditional public forum. Under prevailing case law,
courts instead ask whether the private property has been dedicated to public use, or whether the
government has opened the space for expressive activity.
The government can designate new public forums by making “an affirmative choice” to create a space
that is open for public expression. The Supreme Court has recognized that the Internet in general, and
social media in particular, has become a critical forum for the expression of protected speech. And the
federal courts of appeals have held that the government can create public forums on the Internet. This
may include government pages on privately owned social media sites if the government has intentionally
opened the page for public discourse. If a new public forum is not expressly designated as a forum for
open public communication, then the government can place greater restrictions on the types of speech
allowed in that forum. However, even in “limited” or in “nonpublic” forums, the government generally
cannot discriminate against speakers on the basis of their viewpoint. Accordingly, in determining whether
a given restriction in a limited or nonpublic forum is constitutionally permissible, a court often must
determine whether it distinguishes between speech on the basis of its content or on the basis of its
viewpoint.
By contrast, when the government speaks for itself, the Supreme Court has held that “it is not barred by
the Free Speech Clause from determining the content of what it says.” Accordingly, if a particular
platform is used only to disseminate government speech and is not open for private speech, it will not be
considered a public forum under the First Amendment. Applying this principle, one federal appellate court
held that where a school district retained control over its website, used it for its own speech, and did not
allow private speakers, that website could not be considered a public forum.
Knight First Amendment Institute v. Trump
One significant place for public debate today is Twitter. On Twitter, a user can post 280-character
“tweets” and follow other users to see their tweets. A user’s tweets show up on the user’s own profile as
well as in the “feeds” of the other users who “follow” them. (A user’s feed, compiled by an algorithm,
consists of the tweets of every other user they follow, along with some tweets the users they follow have
“liked” or retweeted, as well as some promoted tweets—i.e., ads.) A user can interact with others’ tweets
not only by viewing those tweets, but also by “retweeting” them so that they show up on the user’s own
profile, by liking them, or by replying to them. If a user’s account is public, the user’s retweets, likes, and
replies are visible to everyone else on the site. Other users can respond to a user’s retweets or replies just
as they would any other tweet. Twitter usually compiles these replies into a single, public conversation.
In Knight First Amendment Institute, a number of individual plaintiffs filed suit against President Trump,
along with White House staff who operate his Twitter account, challenging the President’s decision to
block the plaintiffs from the @realDonaldTrump Twitter account. When a Twitter user blocks an account,
this prevents the two users from following each other and prevents the blocked account from viewing the
user’s tweets. The plaintiffs in the New York case argued that the @realDonaldTrump Twitter account
was a public forum, and that in blocking their accounts, the President had engaged in unconstitutional
viewpoint discrimination. (The Knight First Amendment Institute at Columbia University, the first named
plaintiff, was not blocked by @realDonaldTrump, but asserted a desire to read what the blocked users
would have otherwise posted in reply to the President’s tweets, based on Supreme Court case law
recognizing a First Amendment right to receive information.)

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One of the biggest questions confronting the trial judge was whether Twitter—a private social media
platform—could be considered a public forum for First Amendment purposes. This inquiry was
complicated by the fact that the @realDonaldTrump account is distinct from the official @POTUS
account and was previously operated by the President as a private citizen. The court acknowledged that
Twitter was a private platform, but concluded that the President exercised sufficient control over certain
aspects of the @realDonaldTrump account—including the power to control who may retweet or reply to
the President’s tweets by blocking users—that parts of Twitter could be considered a public forum. The
court further determined that the President’s control over the account was “governmental in nature”
because “the President presents the @realDonaldTrump account as being a presidential account as
opposed to a personal account and, more importantly, uses the account to take actions that can be taken
only by the President as President.” The court rejected the government’s argument that the President’s
personal Twitter account represented acts taken in his personal capacity, similar to a public official giving
a campaign speech, rather than state action subject to the First Amendment.
While the court held that the President’s own tweets were government speech and did not implicate the
First Amendment, the trial judge also determined that “the interactive space for replies and retweets
created by each tweet sent by the @realDonaldTrump account” did constitute a public forum. However,
the court further held that the President did not control any “subsequent dialogue in the comment thread,”
and so the “interactive space” beyond the initial, direct replies, or retweets was not a forum. Because the
court held that the interactive space for private users to retweet or directly reply to the President’s tweets
was a public forum, it concluded that the government could not exclude users from the forum on the basis
of their viewpoints. Significantly, the government did not contest that the President blocked the individual
plaintiffs because of their expressed political viewpoints. Accordingly, the court’s conclusion about the
nature of the forum necessitated holding that the President had engaged in unconstitutional viewpoint
discrimination. Ultimately, the court granted the plaintiffs declaratory—and not injunctive—relief. (This
remedy was likely the product of Supreme Court case law stating that courts cannot grant injunctive relief
related to the President’s performance of discretionary duties.)
Implications
The New York case was not the first one to consider when the government may prevent private
individuals from interacting with public social media accounts like Facebook or Twitter, and
commentators have predicted that it will not be the last, given that other citizens have challenged
decisions by federal and local officials to block them on social media. The developing body of case law in
the trial courts suggests that the resolution of First Amendment cases involving government officials’
social media accounts depends in large part on the specific circumstances presented. For example, in
March of this year, a federal district court in Kentucky concluded that the governor’s Facebook and
Twitter pages were personal speech and not a public forum, and that the First Amendment therefore did
not prohibit the governor from deleting comments on his Facebook page or blocking users on Twitter. In
that case, the court found that the governor had never opened up his social media accounts to others’
speech, and had intended only to distribute his own speech on those accounts. In another case, a federal
district court in Virginia concluded that while a local official’s Facebook page was a limited public forum
because the government had invited citizens’ speech on that page, the official’s decision to delete a
comment that was off topic and violated the government’s announced policy for social media comments
did not violate the Constitution. And in a different dispute resolved by the same federal judge, the court
held that a local official had engaged in unconstitutional viewpoint discrimination when she deleted
political criticism from her Facebook page, which was otherwise held open for discussion. Finally, an
Illinois district court held in 2015 that a municipality could “prohibit political messages” on its website
and Facebook page because those pages were limited purpose forums intended to act only “as small
business forums.”

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Commentators have noted the importance of official social media policies in these disputes. The
government’s statements about the purpose and scope of discussion allowed on its Facebook and Twitter
accounts can be highly significant factors in determining whether those platforms are public forums in the
first place and, if they are forums, in figuring out whether the government has reasonably limited the
types of content that may be discussed on those forums. It is probably unlikely, however, that even a clear
social media policy would fully eliminate any constitutional concerns about limiting who can participate
in an online venue. In a famous dissent, Supreme Court Justice William Brennan pointed out the difficulty
of deciding whether a stated restriction is one that permissibly defines the scope of a public forum, or if
instead the limitation was imposed after the forum was defined and should therefore be subject to strict
scrutiny.
The New York federal district court’s decision thus represents an important data point in the growing
body of law exploring the First Amendment implications of government use of social media. Nonetheless,
because the law governing the inquiry into the nature of a forum requires a fact-specific analysis into
whether any given space has been intentionally opened by the government for all—or some—public
expression, the ruling in Knight First Amendment Institute may ultimately be limited to the facts of the
specific dispute. So far, litigation over the application of the First Amendment to governmental social
media sites has largely been limited to the lower courts. It remains to be seen whether any appellate courts
will weigh in on the issue, and the government has 60 days from the date of decision to decide whether to
appeal the decision in Knight First Amendment Institute.

Author Information

Valerie C. Brannon

Legislative Attorney

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