Trump vs. Twitter: An Interesting Legal Theory

Anyone remember back in 2018 when Trump got sued for blocking critics on Twitter?

The judge’s ruling against Trump was based on a key point. I’ll let Judge Buchwald explain.

We hold that portions of the @realDonaldTrump account — the “interactive space” where Twitter users may directly engage with the content of the President’s tweets — are properly analyzed under the “public forum” doctrines set forth by the Supreme Court, that such space is a designated public forum, and that the blocking of the plaintiffs based on their political speech constitutes viewpoint discrimination that violates the First Amendment.

This ruling was specific to @realDonaldTrump account, not Twitter generally, contrary to several confused snooze reports on the case. But it means Trump’s account is something special, subject to rules that don’t necessarily apply to other accounts.

Lately, Twitter has been blocking views of some of Trump’s tweets, based on content: Trump’s political speech.

If Trump blocking folks “constitutes viewpoint discrimination that violates the First Amendment,” what about Twitter doing just that on that special “designated public forum”?

I’d tweet this at @realDonaldTrump, but Twitter is permanently blocking me because I won’t delete a tweet they won’t let anyone see anyway (a link to a We The People petition; go figure).

Any real attorneys reading this who’d like to weigh in?

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Fuck Twitter

A week ago, I got locked out of Twitter for the thought-crime of “glorifying violence.” A few days before that, The Zelman Partisans was locked out of their Twitter account for “glorifying violence.” This was, as the alert might have guessed, related to our support of Kyle Rittenhouse, the kid who did his damnedest to avoid trouble, but was forced by multiple attackers to defend himself.

What did we do?

This.

About the only thing anyone can really critique is, “Why was he there at all?” Question answered:

• After he got off work as a lifeguard at a Kenosha pool, he volunteered to do civic service.
• He started by cleaning graffiti off a school.
• Then he moved to clean up at local businesses.
• Equipped with a first aid kit, he patrolled and gave assistance to at least one injured rioter.

 

And this.

Shall we list those “acts of violence” I “celebrated”?

He was a lifeguard.
He volunteered to clean graffiti.
He was asked to watch over shops.
He rendered 1st aid to rioters.
He helped put out a fire.
He ran from attackers.

Please share, but be aware of the risk.

 

Blocking me wasn’t one of those “Oops. We ‘accidentally’ blocked someone with libertarian/conservative views for no reason again.” This was deliberate. On appeal,

Our support team has determined that a violation did take place, and therefore we will not overturn our decision.

 

Twitter (and other social media I flat refused to have anything to do with) have pre-convicted Kyle. And in calling my columns “glorifying violence” Twitter has, in my belief, defamed me. Anyone who has read my work for the past twenty-five years knows bloody well that I don’t glorify violence; I think violence should be avoided if possible, and never initiated.

Twitter says I can come back and generate more income for them if I simply obey orders and delete the tweet they are hiding from the public anyway.

Fuck ’em.

My time is better spent on work. And that work includes tracking down a very interesting lead concerning Kyle Rittenhouse’s arrest warrant. It’s too soon to be sure, but words like “fraud,” “perjury,” “false arrest,” and “deprivation of rights under color of law” already come to mind. We’ll see.

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This does not bode well for anyone

Judge rules Trump can’t block people from Twitter account
“This case requires us to consider whether a public official may, consistent with the First Amendment, ‘block’ a person from his Twitter account in response to the political views that person has expressed, and whether the analysis differs because that public official is the President of the United States,” the judge wrote in her ruling.

“The answer to both questions is no.”

I’m looking for the complete decision. If that story accurately portrays it, the ramifications are terrible.

First, the judge appears to turn a right to speak into a right that everyone listen. Not just on Twitter. Got troll commenting on your blog or forum? You may not be able to moderate them under this legal theory.

Second, it’s a lot worse than that. Remember CDA Section 230? That’s the one that gave web site owners some protection from liability for posts or comments made by other people.

Meet FOSTA, the Fight Online Sex Trafficking Act”Fight Online Sex Trafficking Act.” It strips away many of those 230 protections, making web site owners responsible for things posted by users. Big outfits like Facebook like it because they can afford to comply, but it weeds out smaller competitors who can’t afford a 24/7 team of moderators and automatic filters.

So now I could be held responsible for libelous comments on my blog…

…and I may not be allowed to block offenders. I may not be able to block spammers and trolls.

Imagine getting busted for trafficking because a spammer posted an ad for cheap Chinese Fentanyl on your blog.

Imagine getting sued for defamation because some asshat posted lies about someone else.

With 230 gutted, I have to proactively block that stuff to cover my ass. By it sounds like this judge says I can’t proactively block it.

The devil is in the details; I need to see that decision, not just some ABC reporter’s take.

ETA: Still no complete decision, but some more detail that seems to confirm my fears.

The judge agreed but said that even considering the president’s First Amendment rights, preventing users from interacting directly with him on Twitter represented a violation of a “real, albeit narrow, slice of speech.”

You can’t stop users: “preventing users from interacting directly”.

ETA 2: I have the order (PDF, 75pp). It’s going to take a while to go through it.

ETA 3: This is a mess.

It’s not quite as bad as I feared, in one respect. The decision is limited to the @realDonaldTrump account, and not Twitter itself as a public forum.

@realDonaldTrump is legally a public forum because of something of which I was unaware: Trump uses government resources in the form of the White House Communications Director to manage the account and do some tweets. In Trump’s place, I would have kept it to myself as a personal venting venue. He didn’t. That eliminates my worst fears.

This part still bugs me:

We hold that portions of the @realDonaldTrump account — the “interactive space” where Twitter users may directly engage with the content of the President’s tweets — are properly analyzed under the “public forum” doctrines set forth by the Supreme Court, that such space is a designated public forum, and that the blocking of the plaintiffs based on their political speech constitutes viewpoint discrimination that violates the First Amendment.

That’s the troubling part. The “injury” of the plaintiffs that the judges found to real isn’t that they can’t read Trump’s tweets. They can by using another account, or simply by being logged out (which how I see the occasional tweet). The “injury” isn’t that they can’t tweet themselves, which they can.

The injury is that they can’t post reply tweets directly to Trump’s timeline. They can’t use Trump’s account to voice their opinions.

Imagine if you will: A county commissioner is giving an official statement on television. Joe Citizen disagrees with something said, and demands the mike.

And basically the TV station will have to let him rant, even if it runs past the scheduled timeslot. The station can’t merely offer Joe his own airtime the next day; he’s entitled to comments during the commissioner’s scheduled time, because it would an “injury” not to exercise his free speech as the commissioner speaks, to reach the same people who tuned in to hear what the commissioner had to say whether they like it or not.

Everyone is entitled to the mike.

You can’t “block” them — require them to rant on the own show/Twitter feed/blog — so long as they aren’t slandering, spouting obscenties, or indulging in other “unprotected” speech. Joe — and Mike, Mitzy, Jorge, Abdul, and everyone else — can commandeer the microphone to rant about voting rights for voles, while the commissioner wants to explain the proposed bond issue.

Free speech is great. But this is a new right to be heard. By everyone, not just the public official.