While I worked in President Trump’s White House, we faced no shortage of lawsuits, but one of the most memorable involved individuals who sued the president because he blocked them on Twitter. These blocked individuals, along with the entire public, could still see Trump’s tweets, but they couldn’t “comment” on his posts directly and thus couldn’t voice their #Resistance in precisely the way they hoped.
The Second Circuit said that Trump’s blocking posed a First Amendment problem. But the First Amendment only applies to government, not to private actors who block disfavored speech. And the president’s Twitter account was a personal account. Nevertheless, the court of appeals said that @RealDonaldTrump, though once operated as a private page, turned into a governmental forum once Trump took office and used it for official business.
The case drew attention from the Supreme Court, but fizzled after Donald Trump left office, meaning we don’t know whether the Supreme Court would have agreed with the appellate court’s analysis.
We thought we would have a better idea after they took cases this term with similar issues, and it now seems like the Court may have agreed that Trump was constitutionally prohibited from blocking users.
Last week, the Supreme Court decided two social media blocking cases: Lindke v. Freed and O’Connor-Ratcliff v. Garnier. In Lindke, a city manager in Michigan blocked a man from his Facebook page, on which the city manager posted both public and private content. In O’Connor, two school board officials blocked users from their campaign-related Facebook and Twitter accounts, which they used to communicate with constituents.
The Supreme Court acknowledged that government officials aren’t always acting as government officials, meaning they can block and delete posts sometimes. But government officials are government officials when they (1) have the authority to speak on behalf of the government, and (2) broadcast that they are doing so on their social media. This creates a post-by-post analysis, but the problem with blocking someone is they are blocked from every post, meaning that the average government official will have little idea of whether she has violated the First Amendment.
The Supreme Court warned that government officials should clearly label and keep private accounts separate if they wish to block people (based on viewpoint) from private accounts. This seems like a simple task. But I don’t think it is. For many government officials capable of announcing government business, any discussion of work on a personal page would seem to jeopardize the status of that page. The Supreme Court mentioned that labels, like “this is my personal page,” can help keep a page “private” and not “public.” But will they? Donald Trump’s Twitter handle itself, @RealDonaldTrump was clearly differentiated from the official White House Twitter handles, @POTUS and @WhiteHouse. But that didn’t matter to the court of appeals.
Ultimately, it seems the First Amendment will closely follow government officials’ actions on social media. That’s probably a good thing. But it comes with some strangeness. Social media itself is entirely controlled by a private third party. The capability of any individual, government or not, to block, post, reply, and even exist is controlled by Twitter, Facebook, and so on. When Donald Trump “blocks” someone, it’s actually Twitter enabling and ultimately doing that. And Twitter decided it would no longer do that when the company itself blocked Trump from its platform in 2021.
At oral argument, this oddity was shrugged off as no different than when a public official rents a party room at a hotel. Just because the hotel can also kick out rowdy guests does not mean the government may ban people based on viewpoint in a public forum. It’s a fine analogy, but social media has vastly more control than a hotel. Social media can flag, ban, hide, and alter the speakers’ content.
Regardless, for today, government officials create government property when they act in certain ways on quasi-personal accounts online. This should decrease some blocking and deleting, which may make for a messier and meaner online environment, but certainly a freer one with a wider range of viewpoints.
May Mailman is the director of the Independent Women’s Law Center (iwlc.org) and a former legal advisor to President Donald Trump.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller.