By Noah Feldman
Kudos for creativity to the new Knight First Amendment Institute at Columbia University, which has alleged that the First Amendment bars President Donald Trump from blocking followers on his Twitter account. Unfortunately, the law runs to the contrary. There’s no right to free speech on Twitter. The only rule is that Twitter Inc. gets to decide who speaks and listens — which is its right under the First Amendment. If Twitter wants to block Trump, it can. If Trump wants to block followers, he can.
Trump’s account can’t be a “designated public forum,” as the center claims, because it isn’t public at all. Rather, Trump’s account is a stream of communication that’s wholly owned by Twitter, a private company with First Amendment rights of its own.
Twitter can establish any rules it wants in its private domain. That includes allowing users to block anyone they choose, for any reason. And it would allow Twitter to block Trump, too, if the company thought he wasn’t playing by its rules.
Twitter can do all this not only because it’s private, but also because the company is itself speaking through its service. A judicial decision forcing Twitter to make Trump unblock followers would actually violate Twitter’s First Amendment rights.
Don’t think this issue is an isolated, quirky problem in free speech law. Social media pose a host of new and fascinating challenges for the First Amendment. Getting the answers correct will set the tone for major future debates — like whether Google can block fake news and whether founder Mark Zuckerberg could tweak Facebook Inc. algorithms to favor one political candidate, including himself.
The first building block in the free speech clause of the First Amendment is the question of whose conduct it regulates. The simple answer is: the government’s. According to the doctrine of state action, you only have First Amendment rights against the government, not a private party.
As I tell my students, the easy way to remember this is the answer you can give your kids (OK, my kids, whose dad teaches constitutional law) when they tell you that you’re violating their rights by making them shut up. As my children learned at an inappropriately early age, they don’t have free-speech rights against their dad. They only have free-speech rights against the government.
That means the threshold question for whether Trump is violating the First Amendment by blocking Twitter followers is whether there is state action.
And it’s highly likely that there is no state action when blocking the followers takes place on Twitter, a privately owned web service/social media platform.
The whole phenomenon of blocking followers is part of Twitter’s design. Put another way, who can see whom on Twitter isn’t ultimately a product of decisions by users. It’s a product of decisions made by Twitter, which allows users to block.
Trump isn’t truly blocking followers, then. Twitter is — because it’s Twitter’s site and system.
Admittedly, Trump himself is a state actor, in his official capacity. And if, as spokesman Sean Spicer said Tuesday, the president’s tweets are to be considered official statements, then perhaps Trump’s Twitter stream can be conceived as an official government pronouncement.
That matters for whether Trump’s tweets are public records that require preservation under the Public Records Act and that may not be deleted. But that’s a statutory question, separate from the question of whether blocking followers is state action.
Even if Trump’s decision to block some followers was found to be a state action, it still wouldn’t be a free-speech violation. That’s because Twitter can’t be a designated public forum, a prerequisite for the Knight Institute’s argument.
A designated public forum arises when the government opens some particular space for speech that might not otherwise be open. That might include a physical space like school buildings made available after hours to civic and educational groups. It could include advertising space on public buses and subways.
And in one important Supreme Court case, Rosenberger v. Rectors of the University of Virginia, it was even held to include “metaphysical” space. A student activities fund was treated a limited public forum, which for most purposes is the same as a designated one.
In a designated public forum, the government can’t discriminate on the basis of viewpoint. But in no case of which I am aware has the designated public forum been a privately owned and controlled space like Twitter.
Indeed, if a lawsuit were brought against Twitter to force Trump to unblock followers, Twitter would be able to argue successfully that its free speech rights allow it to institute any rules it wants.
And it won’t do to say that the Knight First Amendment Institute has addressed itself to Trump, not Twitter. The whole basis for its argument is that Trump has transformed his Twitter stream into a free-speech zone.
Yet imagine if Trump broke Twitter guidelines by using profanity or racial invective. Twitter could block his tweets or shut his account down. That shows his Twitter feed isn’t a free-speech zone after all, but a privately owned channel of communication.
If Twitter were a newspaper, Trump could publish an op-ed article and set as a condition that he didn’t want any negative letters posted in response.
The impulse to treat Twitter as a public forum is understandable. First Amendment students sometimes get their minds blown when they realize Facebook isn’t a public forum, either, but a privately controlled forum like Fox News or MSNBC.
That means Facebook could lawfully tweak or alter your newsfeed to favor any view or candidate that Facebook wants. And if the government tried to regulate Facebook to stop it, that would violate Facebook’s free-speech rights.
Welcome to the brave new world of the First Amendment. It’s a lot like the old one, with social media platforms substituting for newspapers. The difference is, we never made the mistake of thinking that newspapers were neutral public forums. We would do well to remember that our new corporate mechanism of information dissemination is privately owned — just like what came before.
Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.