When does Twitter blocking violate the First Amendment?
President Trump can no longer block people on Twitter, following a ruling by the Second Circuit Court of Appeals. The court held that because President Trump controls access to his @realdonaldtrump Twitter account and uses it for official government purposes, it is a public forum and, under the First Amendment, he cannot block people solely based on their viewpoints. Katie Fallow – one of the lead attorneys who represented the blocked Twitter users in the case – and David French, senior writer at National Review and former First Amendment litigator, debate the merits of the decision as well as its potential impact on future cases. They also explore a similar lawsuit recently filed against Rep. Alexandria Ocasio-Cortez by people claiming that she unconstitutionally blocked them on Twitter. And, they explain how the Second Circuit’s decision may impact government attempts to regulate social media. Jeffrey Rosen hosts.
Katie Fallow is a senior attorney at the Knight First Amendment Institute at Columbia University and was one of the lead attorneys representing the blocked Twitter users and the Knight Institute in Knight Institute v. Trump. She was previously a partner at Jenner & Block, where she litigated First Amendment cases, and was deputy director of the Bureau of Consumer Protection at the Federal Trade Commission.
David French is senior fellow at the National Review Institute, and senior writer for National Review. French was previously the president of the Foundation for Individual Rights in Education (FIRE), a lecturer at Cornell Law School, and a senior counsel for the Alliance Defending Freedom and the American Center for Law and Justice. He is a former major in the Army Reserves who earned a bronze star for his service in Operation Iraqi Freedom.
Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center, the only institution in America chartered by Congress “to disseminate information about the United States Constitution on a nonpartisan basis.”
- Knight First Amendment Institute v. Trump (2nd Cir. 2019)
- Southeastern Promotions Ltd.v. Conrad (1975)
- Brown v. Entertainment Merchants Association (2011)
Our Interactive Constitution is the leading digital resource about the debates and text behind the greatest vision of human freedom in history, the U.S. Constitution. Here, scholars from across the legal and philosophical spectrum interact with each other to explore the meaning of each provision of our founding document.
Freedom of Speech and the Press by Geoffrey R. Stone and Eugene Volokh
This episode was engineered by Greg Scheckler, and produced by Jackie McDermott. Research was provided by Ellinor Rutkey, Michael Boyd, Jackie McDermott, Zoe Dettelbach, Perri Wilson, and Ben Roebuck.
Stay Connected and Learn More
Questions or comments about the show? Email us at [email protected]
Continue today’s conversation on Facebook and Twitter using @ConstitutionCtr.
Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate, at bit.ly/constitutionweekly.
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, President and CEO of The National Constitution Center, and welcome to We The People, a weekly show of Constitutional debate. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people.
The U.S. Court of Appeals for the Second Circuit recently decided the case Knight Institute versus Trump. That, dear We The People listeners, you remember, because we discussed it a while ago, is a lawsuit filed by Twitter users that were blocked by President Trump. The Court held that the First Amendment prohibits President Trump from blocking people on Twitter based on their viewpoints. There's been a similar lawsuit filed recently against congresswoman Ocasio-Cortez by people claiming that she blocked them unconstitutionally on Twitter. And joining us to unpack these two cases and explore digital speech, public fora, and the First Amendment, are two of America's leading First Amendment experts joining for a rematch for our discussion of the earlier District Court version of this case. And I'm so thrilled to have both of them back.
Katie Fallow is a senior attorney at the Knight First Amendment Institute at Columbia University, and was one of the lead attorneys representing the blocked Twitter users and the Knight Institute in Knight Institute versus Trump. She was previously a partner at Jenner and Block where she litigated First Amendment cases and was deputy director of the Bureau of Consumer Protection at the Federal Trace Commission. Katie, it's wonderful to have you back on the show!
Katie Fallow: [00:01:32] Thank you so much, Jeff. I'm happy to be here.
Rosen: [00:01:35] And David French is senior fellow at the National Review Institute, and senior writer for National Review. David was previously the president of the Foundation for Individual Rights and Education, that's the great FIRE Institute, and a lecturer at Cornell Law School, a senior council for Alliance Defending Freedom, and a frequent friend and repeat champion on We the People. David, it is always wonderful to have you back as well.
David French: [00:01:59] Thanks so much for having me back. I deeply appreciate it.
Rosen: [00:02:02] Katie, let's jump into the Second Circuit's decision. The Court held that Twitter represents an outlet for official communications, because it's controlled by President Trump, and is a public forum, and it found that under these circumstances, Trump's decision to block users was impermissible state action and suppressed their dissent. Tell us more about the reasoning of the Second Circuit.
Fallow: [00:02:23] Yeah, thanks Jeff. Just by way of a little background, we represented seven individuals who are people from all walks of life across the country, including a sociology professor in Maryland, a police officer in Texas, a writer in New York City, all of whom the litigation showed were blocked personally by President Trump from his @RealDonaldTrump account after they replied to one of his tweets and said something critical of his presidency or his policies.
And as you mentioned, the District Court had held that that action was unconstitutional viewpoint discrimination under the First Amendment. And on July 9th, the Second Circuit issued its decision affirming the District Court and holding that his actions did violate the First Amendment. The Second Circuit first went through the department of Justice's arguments for why this should not be subject to the First Amendment, because one really important factor in this litigation is that the government essentially conceded, in a stipulation, that the President had engaged in viewpoint discrimination, that the individuals were blocked because of their viewpoint. And under longstanding First Amendment law, that is the first cardinal sin of censorship is blocking someone because of their views.
So the President and the other defendant, his Social Media Manager, Dan Scavino, argued, well, it's not actually a government account subject to the First Amendment. It's a purely personal account. And the Second Circuit rejected that argument and found that President Trump and his staff including Mr Scavino, have, since he was inaugurated, used this Twitter account, which he had set up before he was president, but once he became president, he used it for official government purposes. And the Second Circuit pointed to examples like that the President has used the account to announce his appointment of members of his administration, to engage in foreign relations with leaders of other countries, to announce important policy decisions like the ban on transgender individuals serving in the military.
And the Second Circuit also pointed to the fact the national Archives considers the President's Twitter, his @RealDonaldTrump Twitter account, to be official presidential records subject to the requirement that they be preserved.
So the Court held that the account was subject to the First Amendment, essentially that there is state action because the President is operating the Twitter account for official purposes, and also the court rejected the argument, to the extent that it was considered an official account, DOJ argued, “Well, then it's government speech. It just represents the President's own speech” because, under First Amendment doctrine, the government itself may engaged in “viewpoint discrimination,” meaning it may express its own views and public officials may express their own views.
But the court held that even if the President's own tweets were considered government speech, the replies, which everyone who follows him can post a reply directly to the President, and these replies show up in the comment threads under the President's tweets, those replies cannot be considered government speech. They're not curated in any way. And they are actually speech of individual citizens that takes place in what is known as a public forum. So the Second Circuit applied the public forum doctrine and said, in essence, just as if a public official like the President were to host an open public meeting, that would be considered a public forum. And you can't exclude people or kick people out of that public meeting based on their viewpoint.
Rosen: [00:06:31] David, what is your response to both of the Second Circuit's holding, namely that @RealDonaldTrump is, indeed, a government account subject to the First Amendment and that the replies of citizens are protected speech because they take place in a public forum?
French: [00:06:49] Yeah, well, before I give my legal reply, first congratulations to Katie on a victory which could very well be the victory in the case. I mean, it's far from certain the Supreme Court will take this, and I don't know if there's been on en banc appeal yet, but certainly the Second Circuit may take en banc review. So this could be the decision in the case. So, congratulations on the outcome.
Let me begin by saying I find this, as a person who has litigated in the First Amendment arena for a long time, I find this to be a hard case. But here's why, in a nutshell, I come down on Donald Trump's side on the case. First, absolutely this is not private, personal speech. This is government speech, and yes it is viewpoint discrimination. And so in those circumstances, if you've got government speakers speaking in their official capacity, and then they engage in viewpoint discrimination, normally that's almost a virtual lay-down hand in court in First Amendment case law. But I think here what we're talking about is a situation… I think if we're going to draw an analogy here, and the Court had an analogy where it talked about, for example, even though Twitter is a private company that it could still be under the temporary control of the government. And it used a comparison of, say, a privately-owned theater leased or operated by the city as being a public forum. That was a case, Promotions Limited versus Conrad, 1975 case. And it compared Donald Trump's use of Twitter to essentially like a private lease.
I think the actual comparison is more like as if Donald Trump, rather than using Twitter to make his various announcements or issue his various insults, I think the bottom line is that Twitter, it's as if he's a guest at Sean Hannity's radio show. And what he's doing is, every now and then, he's actually hanging up on a caller. He's hitting that kill button. But it's Sean Hannity's radio show. His presence on the show is entirely at Sean Hannity's discretion. His access to the kill button is entirely at Sean Hannity's discretion. No money has exchanged hands. He doesn't have any real property right here. Twitter's Terms of Service are really, really clear. The Twitter is basically in total control. And you exist at Twitter's total permission.
For example, it says, “We may suspend or terminate your account or cease providing you with all or part of the services at any time for any or no reason.” Any or no reason. And then it's not even… Once you issue your tweet, Twitter kind of takes ownership of it. You're granting Twitter this worldwide nonexclusive royalty-free license to use, copy, reproduce, blah blah blah, what you put on Twitter.
And so in that sense, it strikes me as much more like Donald Trump is essentially a repeated guest on a radio show. And he is engaging in government speech on a platform that is wholly owned and completely controlled by a private entity. So in that circumstance, even though we have the elements of a government actor acting in his official capacity and blocking, or if he's on a call-in show, hitting the kill switch on a view point discriminatory basis, I would concur with the argument that what he's engaging in here is government speech.
Another reason why I like the analogy of a caller to a call-in show, if a government official is trying to announce an initiative or he's trying to explain some legislation, a caller can hijack his speech. He can hijack the thread, so to speak, and in much the same way that people on Twitter can hijack the thread, so to speak. And so I think that the lack of actual control here, and the total control that Twitter has… I mean Twitter right now could block him from the platform entirely. In fact, a lot of people have made a pretty credible argument that he has violated the Terms of Service on multiple occasions.
So I think the total lack of ownership or control in a way that's different from when I have a lease. When I have a lease I give money. I have written contractual rights to the space, to control the space according to the terms of the lease. None of that is here.
Rosen: [00:11:44] Katie you have compared Twitter not to Sean Hannity's radio show, but to the Athenian agora in a very vivid image. Tell us more about why you think that it is a public forum more like the agora than like a private radio show. Tell us about the case law about public fora, what the leading Supreme Court precedents are and how the Second Circuit applied them, and then why you disagree with David's conclusion that's it's essentially not a public forum.
Fallow: [00:12:15] Yeah, so the Supreme Court has, for many years, including starting with the case that David mentioned, the Southeast Promotions versus Conrad case, establish a doctrine called the Public Forum Doctrine. And the Public Forum is traditionally… you know in that article, I discuss going all the way back to Athens, but much more recently, the idea that in Hyde Park or in the nation's parks and sidewalks, those are what are called “traditional public forums.” And the idea is that if it is public property, it's considered the people's property, meaning that everyone can get up and speak their mind, subject to maybe time, place, or manner rules that don't have anything to do with the content of your speech. And the government cannot censor you in those forums based on the content of your speech.
The Supreme Court has, in the past several decades, that not only does that Public Forum Doctrine apply to traditional places like parks and sidewalks, but to non-traditional locations where the government opens up spaces that it owns or controls and allows people to engage in speech in those spaces. And when that happens, it's known as a designated public forum, meaning it's not traditional, but it has been designated as such. And the Court has held that the government may not discriminate or exclude someone from those forums based on viewpoint.
In that Southeast Promotions case, that was a case, as David mentioned, where a municipality had rented a building, leased a building from a private owner, and allowed people, members of the community, to put on plays in that theater, in that building. And then they denied an application for a company to show the play, the musical Hair, because of its controversial content. And the Supreme Court, although it doesn't in this Southeast Promotions case use the phrase “public forum”, but it's considered on of the first Public Forum cases, struck that down and said that was unconstitutional.
I understand what David is saying in the sense of a Twitter account is different from a long-term building lease. But I think in these circumstances, that's a distinction without a constitutional difference, because I think the operative fact here is the ability of the government official to control access to the forum. So my understanding of Twitter is that when you are an account holder, even if Twitter retains the ultimate ability to kick you off of its platform or to take your account away from you, you do have rights as an account holder. You have a right to use only your handle. No one else can use it. And you have the right to block people from following you. You have a right to mute people who you don't want to. But particularly through the blocking function, you have the ability to control access to the forum. And in this instance, that's exactly what the President did.
So my view is, and I do find this case very interesting because certainly, at my office, it gives rise to a million analogies, and they're always interesting to discuss, but I think the better analogy would be if a government actor or if Sean Hannity was a government official and he decided to host a radio program on a Sirius radio, but it was a program in his capacity as a public official and he allowed everyone to call in and was not exercising… I mean, to some extent, you have to look at the specific technology involved, because obviously with a radio call-in program, you're going to have a lot more selection because you don't have limitless space. But with a Twitter account, or if you did have an ability where you could allow limitless call-ins, I think the better analogy is the government official in Trump is acting as the host. And he's controlling access to the forum.
So it's not as if he's a guest in someone else's show. He is the host of the show. The fact the radio station could eventually say “you can't have this show anymore” doesn't change the fact that when he's hosting a public forum via radio program, he would be subject to the First Amendment. And I think this analogy about whether or not, when government officials are using privately-owned communications technologies… For example under I think David's approach, that means any social media account, even the official @POTUS Twitter account, or @WhiteHouse Twitter account or, you know, if the Department of Health and Human Services had a website where they invited the public to comment on “is the ACA working” and allowed everyone to comment and post comments or reply tweets, post comments on a Facebook page or reply tweets, and then said, “But we're going to delete everybody or block anyone who criticizes how the ACA is operating.” That's a problem because, in my view, that's a public forum. And the government should not be able to censor people in order to create a one-sided echo chamber where only people supporting the government are allowed to speak.
Rosen: [00:18:16] David, your response to those two powerful points? First Katie says that if we're talking about Twitter and comparing it to a radio show, then President Trump is the host, not the guest, because in practice, Twitter doesn't pull the plug on hosts with multimillion followers, and also that your analogy would suggest that even a government account could discriminate against commenters because Twitter has the ultimate authority to shut it down.
French: [00:18:45] Yeah, so I would say a couple of things. One, going back to… I would agree with Katie that an official government account on a private social media platform that is under the total control of the social media platform, the same reasoning applies. One of the things, because these platforms have generally been pretty laissez-faire and these platforms have generally allowed, in particular, the large accounts to operate with impunity, but that's not entirely true. I we've seen these social media companies move in waves of tightened controls aimed sometimes even at pretty big voices online, that because they've been laissez-faire, I think it creates an illusion of control that does not exist. I think the legal fact of the matter is that these government accounts, Donald Trump's account, AOC's account, these are, in essence, people who are operating as guests in Twitter's home, or guests in Facebook's home. And yes, they're engaged in their own speech. It is not Facebook's speech, but Facebook and Twitter are in control of the forum.
And in fact, in an interesting kind of way, when we're talking about the government, a court which is an arm of the government, saying who can and cannot be blocked on these platforms that are entirely owned and controlled by private companies, you're also getting a form of government intervention into the operation of this entirely private platform.
So this is Twitter's property, completely owned by Twitter, completely controlled by Twitter, that has decided to let Donald Trump have free reign. Now we can debate whether that's appropriate under the Terms of Service of Twitter, and there's been lots of arguments about that, or whether it's wise for Twitter to allow Donald Trump to have free reign, to treat him somehow differently to where Twitter itself could prevent him from blocking, or Twitter itself could provide a remedy here, but the fact of the matter that Twitter, on its private platform, has chosen to give him free reign. And that is, what I would believe, and this is something that I would say is Twitter's right, that Twitter on its platform has that ability to give its users free reign if it so chooses.
And what you have is a court here coming in and saying, “No, Twitter, you cannot. You cannot give one of your users free reign on your own platform. You cannot let him use the platform the way you let others use the platform.” So I think Twitter and other groups like Facebook have an interest here.
Now the difference with a government website that is where the government controls the website. The government is operating the website according to… in many times, using its own servers, under agreements, perhaps, with private vendors that allow it to use servers. The government has a degree of legal ownership and control that is different from when you are a guest in Twitter's house or a guest in Facebook's house.
So I think that, and again when you're talking about a radio host, you almost always have, once again, the exchange of money. And the exchange of money in an economic and contractual relationship that just simply doesn't exist here. I think a lot of us are just not all that conscious because Twitter and Facebook leave us alone of the fact that we're just really nobodies on there. We're entirely guests in their house. We will have to leave just like any guest in any of our houses would have to leave the instant we said so for whatever reason we say so. And I think that legal reality just has real salience here.
Rosen: [00:23:08] Many thanks for that, and for a really interesting discussion about whether Twitter users should be considered guests in Twitter's house or if they're public figures, hosts of their own shows.
So Katie, the Second Circuit has held that President Trump is a host rather than a guest. Let's explore the implications of that, both for other suits involving public officials who block on Twitter, and then for regulation of speech on Twitter more broadly. So the obvious case that is coming up next is the suit against Representative AOC for blocking users. Tell us about the facts of that case. Is it similar to the facts of the Trump case? And in light of the Trump precedent, how is the AOC Court likely to rule?
Fallow: [00:23:54] Yeah, so on the exact same day that the Second Circuit ruled in our lawsuit, there were reports of two lawsuits being filed against representative Ocasio-Cortez. I think they're both filed in federal court in New York. And one was filed by a New York state assemblyman, and he alleged that Representative Ocasio-Cortez blocked him from her Twitter account which, similar to President Trump's account, was set up by her personally before she was a public official. And he said that she blocked him because he had tweeted replies to her, criticizing her statements, comparing the migrant detention camps to concentration camps.
My understanding from looking at the complaint is that it doesn't actually contain the tweet that prompted the blocking. So as in all of these cases, it's really important to look at the specific facts. But based on the face of it, that sounds like he is alleging that he engaged in political speech, which is at the core of First Amendment protection. And I think that the principles of the Second Circuit decision would apply with full force to Representative Ocasio-Cortez's account.
Now it's important to note that the Second Circuit in its decision said it was not holding that any particular public official's social media account is a public one that is subject to the First Amendment. The Court acknowledged that some public officials may operate purely personal social media accounts, and in every case alleging a First Amendment violation, you need to look at the ways in which the government employee is using their social media account. That is why the court, in our case, went through and looked at all of the facts, including all the ways he used it for official actions and pronouncements and also, you know, he used government staff to help him in administering the account. So that is a fact that supports the conclusion that it's a official account, not a purely personal one, if you have government employees help you run the account.
So I think you'd want to apply the same kind of factors in evaluating AOC's Twitter account. Based on what I've seen, it seems to be that she similarly uses it for official purposes. And we would hope that she would not block people based on their political views. I think that applies across the political spectrum.
There is, as you mentioned… Or, I don't know if you mentioned, but I mentioned there were two cases. So there was another case filed by a YouTube star with the colorful persona, Joey Salads, who is in fact a man, yes, who is running for Congress in Staten Island and South Brooklyn against Congressman Max Rose. And his complaint is even more bare bones than the other complaint, but I believe that he has similarly alleged that she blocked him based on statements that he made criticizing her.
Rosen: [00:27:28] David, if you were advising Representative Ocasio-Cortez, what distinctions would you draw to help her win her case in light of the Trump precedent? It sounds like relevant factors include whether her Twitter account was used for official purposes, whether she was blocking people for political purposes or other purposes, like harassment, perhaps. What arguments does she have at her disposal?
French: [00:27:53] Oh, this is the point where Katie and I are going to agree a ton, because I think the Second Circuit precedent provides a road map here. Look, if you do the fact-specific inquiry, and you discover upon that inquiry that that Twitter is used for official purposes for government purposes, then all of the reasoning that applies in the Second Circuit is going to start to lock in.
And this is something I think that politicians going forward, so long as this precedent stays on the books, this is going to be an issue for them because a lot of times, and often they become public figures during the course of a campaign before they have an official Twitter account. So they have this enormous following on a personal account, move into public office, have the Twitter account of the office, which sort of has a small fraction of the reach. So if they really want to communicate with their constituents, then they're going to be using that so-called personal account, or what we would I guess say now would be a formerly personal account if they transform it into an instrument of their office.
And in that circumstance, this kind of precedent, if they are working out of the Second Circuit jurisdiction obtains, and they're going to face this precedent. You know I think there's a pretty simple way for them to escape this precedent, which is to start using the personal account for personal matters: more pictures of pets, less statements of public policy.
So what i think that this precedent is is I think pretty clear. And it's pretty clear that once you start using a personal account for official government business, First Amendment obligations are going to start to lock in. And so in that circumstance, if the plaintiffs in the case can prove similar facts in the AOC case, I don't think there's any reason to believe that, so long as the Second Circuit precedent holds, that they won't win.
Rosen: [00:29:58] Katie, what is the significance of the Trump case precedent for the debate about free speech online more broadly? Not long ago, the President held a White House Summit about social media regulation. At the summit, attendees denounced alleged discrimination against conservative speakers on Facebook and Twitter. Is the Second Circuit's holding that Twitter is a public forum, does that have implications for the ability of Twitter to discriminate against speakers? Or is it limited simply to public officials who block users on social media?
Fallow: [00:30:40] Yeah, well I think there's sort of two issues here. In terms of how this decision will affect communications online, I mean we did just touch upon some of that. And the idea that the principles announced in the Second Circuit's decision would apply to public officials across the country and at all levels of government. And I believe that that is important because, as the Supreme Court noted a couple of years ago in its case the Packingham case, really discussing the growth of social media as colloquially, Justice Kennedy, this was one of last big First Amendment cases, but he said that social media now is sort of the new, modern public square. And it's increasingly a place where public officials across the spectrum are using social media accounts as the primary, if not the exclusive, way that they talk to and hear from constituents.
People have remarked upon that many Congresspeople are no longer having town halls where they allow people to come in and tell them how they think they're doing or whether they support certain policies, but instead are conducting those kinds of discussions on and through public social media accounts.
So, I think its actually very important and kind of going back to our earlier discussion, one reason why I think the focus should be, and why the courts have focused on whether the government official controls access to a forum on a social media account, even if Twitter ultimately controls access to the platform, is as public officials increasingly use social media accounts in this way, they should not be allowed to essentially privatize the functioning of government and evade the requirements of the First Amendment by moving all of their discussions and what were heretofore known as public forums onto private social media platforms.
And I will also note on that, and then going into the second question about whether these cases could be used to hold that Twitter is subject to the First Amendment if it takes action against someone based on their speech, you know I think the answer to that is clearly no. The courts have long held and recently affirmed that the First Amendment applies to state actors, to government actors, not to private individuals. So private individuals can block whoever they want to on Twitter. And Twitter, as a private corporation with First Amendment rights, can set up its platform and establish rules for speech in the way it wants, and is not subject to the First Amendment. So, I think that's pretty clear.
I also note that in our case, before the Second Circuit, a organization of tech companies submitted an amicus brief, saying, essentially, we don't have any opinion on how this case should come out, meaning they didn't have any objection to imposing liability on government actors like President Trump. But the brief said, “We just want to make clear that in no way should this be held to open the door to holding private actors liable under the First Amendment,” so…
Rosen: [00:34:12] David, what is your view about the impact of the Knight case on other cases involving social media's status as a public forum, understanding you disagree with the holding? Now that the Second Circuit has held that Twitter is a public forum, could that have implications for Twitter's ability to discriminate against conservative speakers or beyond the specific facts of public officials who are blocking other users on Twitter?
French: [00:34:41] I can agree with Katie that this case, obviously, does not transform Twitter into an entity bound by the First Amendment. It doesn't essentially recreate Twitter as a government entity. But my concern is that what the decision does is it creates government interference into Twitter's policies. It creates, essentially, a government-imposed rule as to how Twitter is going to treat the accounts of its public official users. And I do think that that… I understand that the tech companies expressed no opinion on this, but I do think that that is a crack, a foot in the door that I think is inappropriate, as far as the role of government in regulating how Twitter treats its users, and differentiating its users by different classes of users and restricting the ways in which Twitter can regulate its own platform regarding those users. And I do think that that is something that troubles me.
But like I said from the very beginning, I think this is one of your more interesting, tougher First Amendment cases, because we are talking about and we've been using a lot of different analogies, and all of them are imperfect, to a degree, because we haven't had anything quite like this social media environment that we're living in.
And I would say one thing that Katie is right that these politicians are increasingly migrating their operations onto social media. And I would say there are two risks involved there. One, it's a risk the politicians are taking, which is for various reasons, whether to evade in-person contact with constituents, to evade contact with the media, they are moving onto these platforms, or to provide a continual, unfiltered access to constituents to take the more positive spin on it. They're moving into other people's homes to engage in speech. And that's at their own risk. They are taking a risk there. And especially as our politics grow more polarized, especially as our politics are more vicious and angry, I mean they are taking a risk.
And the other aspect of this is, as these politicians invest more in social media, and they view social media as sort of their platform, I think it raises a greater risk that the politicians will start to try to regulate it to try to protect themselves. And you've already seen some of that in the Josh Hawley-proposed legislations, where he is advocating the creation of a government… or that government commission should determine whether Twitter's, or large social media platforms are politically neutral. And I think that that's a real danger.
Rosen: [00:37:51] So really two big questions on the table, one, government official's ability to block and regulate users on social medial, and the second, the government's ability to regulate the rules of the platform themselves. On the first question, Katie, think forward to the next series of really important speech discrimination cases by government officials. Is it government officials who use Facebook, or radio shows, or other future incarnations of Twitter? And in that sense could this Knight case be a landmark, a kind of New York Times versus Sullivan for the social media age, in terms of restricting their ability to block users, or is it not that big a deal?
Fallow: [00:38:34] Well, certainly from the Knight First Amendment's perspective, I mean Institute's perspective in mind, you know we always would love to be in a case compared to New York Times versus Sullivan.
Rosen: [00:38:46] Yes, indeed.
Fallow: [00:38:46] I can't purport to say that yet. But I do think it is a very important case, and it's actually the Second Court of Appeals case dealing with these issues. The first one was decided in January of this year. The Fourth Circuit ruled in a case involving people with much smaller profiles, both the person who was blocked, and the public official. The case is called Davison versus Randall. And in that case, it was a man who lives in Loudon County, Virginia. And he was blocked by the local Loudon County board of supervisors, the chair of that Board of Supervisors blocked him from her “Chair Phyllis J Randall” Facebook page.
And the issues were actually quite similar, because she argued that it was a personal account that she set up on her own, and thus was not an official county account. But the Fourth Circuit in that case also held that she had engaged in viewpoint discrimination when she blocked him, actually temporarily, from commenting on her Facebook page, and that the that way she used her page showed that it was an official account, not a personal account. So I think both of these decisions set up a good framework for evaluating these kinds of cases. And I do think, you know, at least in my experience as a First Amendment litigator, whenever there's a new form of communication or a new kind of technology, people grapple, legislators and individuals and government officials grapple with, is this a new thing altogether that we cannot apply preexisting First Amendment doctrine to, and thus we shouldn't even attempt to delve into that? And I think Justice Alito, and other Justices, have made that argument. This is so new, we shouldn't make any Constitutional rules and sort of see how it works out.
But there are other justices, including Justice Kennedy and, actually interestingly, Justice Scalia in the Brown versus Entertainment Merchants Association, which is a case involving striking down laws that would restrict the sale of violent video games to minors, and in that case held, you know, just because a manner of communication is new does not mean that we can't apply these preexisting rules. And you know, judges have a lot of good tools that they use, including things like we're going to look at this fact by fact basis, we're going to look at the specific comments that prompted the blocking, and establish the new rules of the road. And I would hope that what this case would do would be that, as more public officials are aware of the case and the holding, that they start to operate their social media accounts in ways that comply with the First Amendment.
So for instance, there is… I hope I don't get this wrong. There's a representative in Ohio, I believe, with Cohen, and he had been… I don't know if it's Steve Cohen, but it may be. I apologize. But he had been blocking people who were criticizing him, and he's a Democrat, from his social media account. And after this decision came out, he announced that he would no longer block people from his Twitter account.
Rosen: [00:42:24] David, last word is, do you… You are a heroic defender of free speech. I understand that you do not think that Twitter should be considered a public forum. But in light of the Knight decision, what are the biggest threats to free speech that you see coming down the pike when it comes to online free speech, and what, if anything, is the implication of this decision for those threats?
French: [00:42:48] Yeah, I think there are two threats to free speech coming online. One is coming from within the social media companies themselves, and one is coming from the government. And from within social media companies themselves, now there's no legal threat to free speech when social media companies regulate and change their user standards. There's more of a cultural threat to free speech: how much do we still, as Americans, relish a marketplace of ideas, and I've long urged social media companies, as a voluntary matter, to adopt a First Amendment-based framework for determining the speech rules on their sites. In other words, viewpoint neutrality is a lodestar, however understanding that harassment, invasions of privacy, and all the kinds of Common Law torts sort of existed alongside the First Amendment with these Common Law principles have existed alongside the First Amendment, protect people from truly bad actors, along with of course blocking and muting functions protect people from truly bad actors.
So I think that, as a cultural matter, I would like to see social media companies protect a robust marketplace of ideas according to First Amendment principles that I think strike the right balance between viewpoint neutrality and protection of individuals from truly malicious actors.
As a legal matter, I think there is an emerging, particularly on the right, desire to override existing First Amendment doctrine for the sake of regulating the speech policies of these private companies. And the Hawley legislation is a principal example of this. This is one that's sort of been bandied about along much of the right as a kind of a model piece of legislation. And essentially what is says is, as I said earlier, is social media companies of a certain size would have to obtain continued federal statutory protection from things like libel and slander lawsuits for the posts of their users, would have to certify and be certified as engaging in politically-neutral speech policies regarding political speech. And the definition of neutrality there are so broad and vague that under existing First Amendment case law, they would be struck down relatively quickly.
But the move here is to say, in essence, Facebook, Twitter, et cetera are this new thing. They require new legal response, a legal response that runs counter to traditional First Amendment doctrine, which would inject the government directly into these private companies' determinations of speech policies regarding political speech. As a legal matter, I think that that's an ominous development. The existing First Amendment framework can handle Facebook and Twitter quite well. I think Facebook and Twitter would do well to adopt something that looks a lot like a First Amendment framework to maintain a robust marketplace of ideas, but I think the online space is where we're seeing both culturally and legally, some of the greatest emerging threats to the marketplace of ideas, legal regime and cultural regime, in the United States.
Rosen: [00:46:24] Thank you so much, Katie Fallow and David French, for a really illuminating and subtle discussion of an important case, the Knight First Amendment Institute versus Trump and the future of online free speech. It is privilege to have two such distinguished defenders of the First Amendment disagree so thoughtfully about this very important question. David, Katie, thank you so much for joining.
Fallow: [00:46:49] Thank you.
French: [00:46:50] Thanks for having us.
Rosen: [00:46:56] Today's show was engineered by Greg Scheckler and produced by Jackie McDermott. Research was provided by The Constitutional Content team. The Homework of the week? You know it, dear We the People friends. Read Knight First Amendment Institute versus Trump! You can quickly find it online. You hear David and Katie disagree so thoughtfully about it. If you read the opinion, write to me and tell me whether you think Katie or David has the better argument.
Please also rate, review, and subscribe to We the People on Apple Podcasts and recommend the show to friends, colleagues, or anyone everywhere who is hungry for a weekly dose of constitutional debate. And remember always, dear We the People friends, that the National Constitution Center is a private nonprofit. We rely on the generosity and engagement of people from across the country who are inspired by our nonpartisan mission of constitutional education and debate.
You can support our mission by becoming a member at constitutioncenter.org/membership, and I would love you to become a member and just donate a dollar to signal your engagement, passion, and support. And give a donation of any amount to support the work, including this podcast, at constitutioncenter.org/donate.
On behalf of the National Constitution Center, I'm Jeffrey Rosen.