Should The President's Tweets Create A 'Public Forum'?

You might be aware that the President of the United States has a Twitter account. You might not be aware that each time he uses the account to post information about government business, the President opens a new "public forum" for assembly and debate. According to District Judge Naomi Reice Buchwald's decision in Knight First Amendment Institute v. Trump, the government controls the "interactive space" associated with the President's tweets and may not exercise that control so as to exclude other users based on the content of their speech. In other words, the District Court wrote, the First Amendment regulates the President's conduct on Twitter and prohibits him from blocking other users from replying to his political tweets. Unfortunately, this ruling could backfire, so that a decision intended to promote free speech may instead degrade or limit it.

It works like this: the President or his aides sign in to his account, @realDonaldTrump, and submit content to Twitter - text, photographs and videos. Twitter serves that content to anyone who requests it via a web browser, i.e., it is visible to everyone with Internet access. If another user has signed in to their Twitter account, they may "reply" to the President's tweets. A third user who clicks on the tweet will see the reply beneath the original tweet, along with all other replies. If the President has "blocked" a user, however, the blocked user cannot see the President's tweets or reply to them as long as the blocked user is signed in to their account. The blocked user can still reply to other replies to the original tweet, and those "replies to replies" will be visible to other users in the comment thread associated with the tweet. The blocked user can still view the President's tweets by signing out of their account. And they can still comment on the President's tweets in connection with their own account or any other user's account that has not blocked them from replying.

The District Court concluded that the space on a user's computer screen in which replies appear beneath the President's tweets is an "interactive space" that the government controls. It declared that President Donald J. Trump's conduct in blocking certain users from entering that "interactive space" by way of "reply" to his tweets amounted to unconstitutional viewpoint discrimination under the First Amendment. While directed at one uniquely powerful user with a presidential seal at his disposal, the court's decision...