Twitter and the First Amendment: The Sex-Offender-Facebook Case Could Spell Trouble for Trump

Donald Trump is not one for dissension; he yearns for adulation and obsesses about any perceived slight. In that vein, he’s prone to blocking twitter users who are less than compliant. Trump is now being sued by a public-interest group on the theory that since Trump is president and his tweets are official White House communiques, Trump violates the First Amendment when he blocks people’s access to his tweets.

I’m not sure about that theory, but there is certainly a potential First-Amendment problem at play when Trump blocks a person from his twitter account because of that person’s viewpoint. Trump is a state actor — he is the government (although not all of it, as he seems to think) — so the First Amendment applies to him. The question is whether the government can violate the First Amendment by messing around with a person’s access to social media.

As it turns out, the US Supreme Court ruled in a recent case that it can. Before getting to that case (it’s called Packingham v North Carolina and it was decided June 19 of this year), let’s look at the text of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Courts have long said that even though the First Amendment refers only to “Congress,” its rules apply to every branch of every level of government — federal, state, and local. That includes, unfortunately, Donald Trump. So Donald Trump may not abridge freedom of speech or the right of the people peaceably to assemble to petition the government for a redress of grievances.

Has he done that by blocking citizens from accessing his twitter account? That depends largely on how the Supreme Court (which makes the rules, after all) views twitter.

In the Packingham case cited above, the Court took up the case of a convicted sex offender who, under North Carolina law, was prohibited from using social media platforms even after serving out his sentence and being released from prison. The Court ruled that the North Carolina law was overly restrictive. In the course of its discussion, the Court had this to say about the role of social media in modern society:

A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more. The Court has sought to protect the right to speak in this spatial context. A basic rule, for example, is that a street or a park is a quintessential forum for the exercise of First Amendment rights. …

 

Even in the modern era, these places are still essential venues for public gatherings to celebrate some views, to protest others, or simply to learn and inquire. While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the “vast democratic forums of the Internet.”

The Court came very close here to calling social media platforms public forums for First Amendment purposes. And that would be a problem for Trump, because if twitter is a public forum, then restricting somebody’s speech on twitter would subject a state actor to the strictest of scrutiny.

When a court strictly scrutinizes a law or policy or practice, it requires that the means chosen by the government actor be narrowly tailored to the achievement of some compelling interest. In Trump’s case, his only purpose is to spare his own hurt feelings (such a snowflake), and he does so by broadly restricting a dissenting citizen’s voice, both as to access to information and the ability to participate in a public dialogue.

Trump’s habit of targeting dissenters based on the content of their thoughts also runs afoul of a bedrock principle of constitutional jurisprudence: the government’s purpose must be content-neutral, meaning that it must be unrelated to the suppression of certain ideas.

The Court’s reasoning in Packingham reflects the organic or “living Constitution” view of our founding charter; it reflects an understanding that the broad language of the Constitution finds new applications as we evolve culturally and technologically. Indeed, when one envisions what it means to peaceably assemble to petition for a redress of grievances in 2017, the notion of a gathering of bodies at the White House gate seems downright quaint. That’s not how we do it anymore; instead, we get together on the internet and give our elected representatives hell.

Ironically, a sex offender may have done Trump in. It’s hard to see how, if a state may not block a convicted felon from Facebook, the president of the United States may nonetheless block a dissenting voice from his twitter account.

-bb

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