Do you have a right to follow Trump on Twitter?
It will surprise no one familiar with Donald Trump’s attitude toward criticism that people who make negative comments about him on Twitter may find their access to his account blocked. If Trump were an ordinary Twitter user, he would be well within his rights to shun anyone who offends him.
But Trump is no ordinary Twitter user. He is the president of the United States, and he regularly uses his @realDonaldTrump account — which has 34 million followers, about 15 million more than the official @ POTUS account — for presidential purposes. A federal lawsuit filed last week argues that Trump’s current use of the Twitter account he established in 2009 makes it a “designated public forum,” meaning that banishing people from it based on the opinions they express violates the First Amendment.
The idea that you have a constitutional right to follow the president on Twitter is not as silly as it might seem. If the White House let visitors to its website post comments and used a filter to block criticism while allowing praise, that would pretty clearly violate the right to freedom of speech.
The Knight First Amendment Institute at Columbia University, which filed the Twitter lawsuit on behalf of itself and seven Trump critics blocked by his account, argues that the president’s viewpoint discrimination on the social media platform is analogous. The institute’s beef is not with Twitter, a private company that is not constrained by the First Amendment, but with the president and his staff.
If Trump used his Twitter account primarily to discuss golf, real estate or his grandchildren, his criteria for granting access to it would not raise constitutional issues. But Trump uses his Twitter account primarily to discuss work- related subjects such as appointments, executive orders, international affairs, policy initiatives and press coverage of his administration.
Trump’s tweets, some of which are posted by White House aides, routinely make news. Sometimes they announce major decisions, such as the appointment of a new FBI director, before any other source.
The @realDonaldTrump profile lists his location as Washington, D. C., describes him as the “45th President of the United States of America” and displays official White House photos. The White House social media director describes @realDonaldTrump, along with @ POTUS and @WhiteHouse, as a way of “communicating directly with you, the American people!”
Trump’s press secretary says his tweets are “official statements by the President of the United States.” The National Archives and Records Administration agrees, meaning the tweets must be preserved along with other official records.
Except for those specifically banned, Trump’s Twitter account is open to all, and according to Bloomberg BusinessWeek, “a typical Trump tweet” generates “20,000 or so replies.” As a result, says the Knight First Amendment Institute, the @realDonaldTrump account has become “an important public forum for speech by, to, and about the President.”
Twitter users banned by Trump are largely excluded from that forum. They cannot follow him, see his tweets while logged onto Twitter, reply to them, debate other commenters, send direct messages to him, use Twitter’s search function to locate specific Trump tweets, or see which accounts follow the president or are followed by him. Banned users can still see the president’s tweets if they log out of Twitter, and they can evade the restrictions by creating new accounts under pseudonyms, although they run the risk of being banned again if they say something that irks the president. Alex Abdo, one of the attorneys behind the Twitter lawsuit, argues that “these possibilities are not constitutionally adequate alternatives for users blocked by President Trump any more than the possibility of reentering a town meeting in disguise, or listening in through an open window, would be a constitutionally adequate alternative for a person wrongly ejected from a town hall.”
The crucial question is whether Trump has created the constitutional equivalent of a town hall on Twitter. Abdo and his colleagues make a plausible case that he has.