Social media and online forums struggle to make their dialogues less toxic. On Wednesday, Twitter announced a step it hopes will give users more control over their conversations: limiting who can reply to tweets. Options are allowing anyone to chime in; only people who follow you; only those you’ve specifically mentioned in that tweet; or no one at all.
Public officials — including the strange bedfellows of President Donald Trump and Rep. Alexandria Ocasio-Cortez — trying to navigate these conversations have drawn scrutiny for responding to comments they don’t like by blocking the commenters from their Twitter accounts. Because politicians occupy a unique public position, some argue these blocks violate the right to free speech. Others counter that public officials aren’t obligated to give up their digital privacy.
Two lawyers debate: Do officials violate the First Amendment by blocking people from their social media accounts?
Some who have heard that President Trump cannot block people from his Twitter account think other elected officials cannot block people. This is wrong: Almost all elected officials can do so from their Twitter accounts and not violate the First Amendment.
That’s thanks to the first five words of the First Amendment: “Congress shall make no law,” limiting what laws Congress can create. It also limits the Executive Branch, whose relevant authority is derived from the laws passed by Congress. The First Amendment thus stops executive officials in their official capacity from limiting speech they don’t like — but doesn’t stop individuals acting in their private capacity.
For official government accounts, for instance @WhiteHouse or @DepofDefense, upon creating that account, the government creates a designated public forum in which people are allowed to respond to tweets issued by these official accounts. If the government were to block people from responding because it didn’t like their opinions, it would be committing viewpoint discrimination prohibited by the First Amendment. However, if Twitter allowed accounts to turn off all responses, this would likely be allowed, as it wouldn’t be discriminating based on viewpoint.
But most elected officials are legislators and not part of the Executive Branch. They almost always created these accounts as personal ones before they entered office. Even a campaign account would still be private, not a government account. The First Amendment does not limit the privacy of individual members of the legislature. You have no right, for instance, to invade the home of a congressman to protest some issue — that is their property.
The story becomes a bit more complex for the accounts of the president and vice president. They are a part of the Executive Branch and so limited in their official acts by the First Amendment. Official presidential accounts, like @POTUS, are government accounts that directly answer to the First Amendment.
But what about the @realDonaldTrump account? Trump acknowledged that he uses the account to, among other things, “announce official decisions" — like the nomination of the new FBI director. The White House press secretary said the tweets are considered “official statements by the President of the United States.”
Given these facts, the 2nd Circuit Court of Appeals found that the president had chosen to transform his personal account into the official government account of his presidential office. This means he is no longer able constitutionally to block people from responding to his tweets based on viewpoint.
The problem for the 2nd Circuit: When exactly did the switch occur? By what act did the president transform his previously private account into a public one? Merely speaking about his official acts through the account isn’t enough. The 2nd Circuit isn’t exactly clear as to when this happened. That the account was created before Trump was president and will likely continue as a private account after he leaves office suggests that the 2nd Circuit may be wrong and other courts may decide the issue differently. And Vice President Pence, who has not used his account in the same way as Trump, can still block people.
The 2nd Circuit decision may apply to some state governors and other state executive branch officials. It will turn on whether those officials used their Twitter account as the official account of their office.
But almost all elected officials are in the legislature, either federal or state, and as such their Twitter accounts cannot possibly be limited by the First Amendment.
Devin Watkins is an attorney at the Competitive Enterprise Institute. A version of this piece first appeared at InsideSources.com.
In the social media age, politicians have come under fire for blocking critics from following them on Twitter. Rep. Alexandria Ocasio-Cortez of New York recently settled a lawsuit brought by Dov Hikind, a former elected assemblyman from Brooklyn. Following the settlement, Ocasio-Cortez offered a forthright apology.
“Mr. Hikind has a First Amendment right to express his views and should not be blocked for them,” she said. “In retrospect, it was wrong and improper and does not reflect the values I cherish. I sincerely apologize for blocking Mr. Hikind.”
You won’t hear me saying this often, but Ocasio-Cortez is exactly right.
Before she was elected, her account was private, and she could choose to block whomever she wanted. But the standard for elected officials is different.
While an elected official could choose to keep a private social media account genuinely private, only using it to share cute cat pics or family photos, that is not the route Ocasio-Cortez and most other elected officials have taken. Instead, she uses her “personal” Twitter account (@aoc) to communicate with constituents, debate matters of public policy, and engage with other elected officials. These tweets are often highly newsworthy.
For instance, Ocasio-Cortez and President Trump recently debated on Twitter whether he had engaged in impeachable conduct — a matter of clear public concern, especially given that Ocasio-Cortez is one of the 435 people in the country who voted on articles of impeachment.
Elected officials use social media as a megaphone to amplify their voices. Ocasio-Cortez’s Twitter account has over 6 million followers; Trump’s, over 70 million. Once a private citizen takes the step to become a public official, their existing social media accounts become places for public discussion and debate where they can engage with these millions of followers. These accounts accordingly function as a type of public forum and are covered by the First Amendment.
An analogy to real-world interactions might clarify the principle: An elected official could not ban critics from stopping by her office or mailing her traditional letters. A politician who blocked this kind of constituent expression would be violating not only the constituent’s right to free speech but also their right to petition their elected officials for redress.
Of course, Twitter itself is not a public forum. It is entitled to shut down speech that it disagrees with for any reason at all since the First Amendment only applied to government actors. But that does not extend to elected officials hosting public forums on the platform.
Another analogy might help. The owner of an auditorium can refuse to host political events altogether or only allow conservative speakers. But if the president comes to speak, the president’s team would not be allowed to block any critics from attending.
Courts that have thus far considered this issue have uniformly agreed that the “interactive component” of a social media account is a public forum, and that public officials, including President Trump, cannot block critics just for expressing viewpoints they disagree with.
Because Trump employs his social media accounts as a place for public discourse, he could not engage in viewpoint discrimination and block critics. The same standard would almost certainly apply to Ocasio-Cortez’s accounts.
In a world where the president can fire a Cabinet official or ignite a foreign conflict through Twitter, it becomes increasingly important that everyone has access to the public forums that elected officials create on social media. Fortunately, the First Amendment protects that right.
Daniel Ortner is an attorney with Pacific Legal Foundation. A version of this piece first appeared at InsideSources.com.