By Noah Feldman
It’s gratifying when the courts stand up to President Donald Trump’s abuses of executive power. But the federal appeals court that held Tuesday that Trump can’t block users from his personal Twitter account doesn’t fit into that paradigm. Although its decision will be hailed by some as a win for free expression, it’s actually based on a misconception about our social media accounts — one the U.S. Supreme Court is going to have to fix.
Here’s the basic problem: The U.S. Court of Appeals for the 2nd Circuit assumed in its opinion that Trump’s Twitter account was either “private” — in effect, Trump’s own property to do with as he wishes — or else “public,” in the sense that the account was a government-controlled space in which the First Amendment should apply.
Once the court determined that Trump uses his Twitter account for all sorts of public purposes, it concluded that the account should be treated as “public.” According to First Amendment doctrine, the government isn’t allowed to discriminate against speakers on the basis of their viewpoint in a public forum. By blocking critics from his account, Trump was excluding them from this “otherwise open online dialogue.”
The reality, however, is that Trump’s Twitter account isn’t his private property or a government-controlled space. It’s something else: property controlled by Twitter Inc.
Consider that neither Trump nor anyone else has free reign to say absolutely anything on a Twitter feed. Twitter has rules for content moderation — and those trump even Trump.
For example, by coincidence (I assume), on the same day that the appellate court decision came down, Twitter announced a new content moderation rule that prohibits users from using language that dehumanizes religious groups. Those are Twitter’s rules. And under the Supreme Court’s interpretation of the First Amendment, Twitter has a constitutional right to apply them to all speech on its platform.
It would be hard to get a clearer indication of ownership or control than that: Twitter decides what happens on its platform — even on Trump’s feed.
If Twitter were to decide that Trump violated its content standards, Twitter would have a legal right to take down Trump’s rule-breaking tweets. If Twitter believes that someone who is commenting on Trump’s feed has violated its rules, it can take down that content, too.
For these reasons, Trump’s Twitter feed is nothing whatsoever like the public forums to which the courts have applied the First Amendment in the past.
The first thing the court is supposed to do when it considers whether a public forum exists is to ask about the nature of the property. Here, the right answer was that the Twitter account isn’t ultimately controlled by Trump; it’s ultimately controlled by Twitter. Property can’t be “government-controlled” if someone else can decide what speech happens there.
Why should this matter? Even if Twitter ultimately controls the president’s account, isn’t it still a good thing that he can’t block people who disagree with him?
It matters, I think, because of the bizarre implications of the court’s decision. Assume, with the appeals court, that there now exists a public forum for discussion on Trump’s Twitter feed. But many people can’t say what they want in that forum — because what they want to say is banned by Twitter. Anyone who has been deplatformed by Twitter can’t participate in that public forum at all.
The upshot is that what the court considers a public forum for discussion is in fact not available to the public. The government that supposedly controls the forum is in fact subordinated to Twitter’s content rules.
Now think about what the government could do in the future: It could open supposedly “public” forums for discussion on social media platforms, with the full knowledge that in doing so it can effectively restrict the viewpoints of speakers. The government can piggyback on the social media platforms’ content rules — which would be unconstitutional if the government itself adopted them.
In other words, the appeals court’s decision rests on a conceptual confusion that has serious negative implications for the freedom of speech. The government shouldn’t be able to get away with designating a public forum for speech where the speech isn’t constitutionally free.
The Supreme Court should revisit this issue and get it right — to protect freedom of speech in the long run.
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of 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 Minnesota Lawyer, the Bloomberg editorial board or Bloomberg LP and its owners.