[Update, May 23, 2018: As I predicted almost a year ago, before the lawsuit was even filed, Trump’s twitter feed is indeed a public forum. A federal district court just denied his motion to dismiss. I haven’t read it in full yet, but I’ll update this post when I’ve had a chance.]
[Update, June 6, 2017: A week after I wrote the below, the Knight Institute wrote a letter to President Trump arguing the same. Eugene Volokh says there’s a “private capacity” argument. I addressed that below, the same way the Davison court ruled on it. Moreover, just today Press Secretary Sean Spicer admitted the tweets are “official statements by the President of the United States.” Also, Charles Ornstein has a good summary of other elected officials blocking constituents, and litigation over it.]
While in the White House, Donald Trump’s personal twitter timeline, @realDonaldTrump, remains a key method by which he communicates with the public. He uses it to conduct foreign policy, to urge specific action by Congress, to promote certain media articles, and, of course, to persuade the public on key issues, including with implied references to classified government information. And, critically for our purposes here, he allows the public, the media, and other elected representatives to post tens of thousands of comments in response to each tweet:
As Danny Sullivan pointed out, President Trump has recently become more aggressive in blocking people on Twitter, and so Sullivan has created a list of blocked users. Sullivan wonders if this creates a First Amendment issue, noting,
When Trump blocks, he doesn’t just impact himself. He blocks some Americans from speaking in arguably the most important forum, his tweets.
For our purposes here, I’ll refer to @realDonaldTrump’s tweets as “tweets,” and the responses to them as “replies,” so we don’t get confused. When @realDonaldTrump “blocks” someone on Twitter, they can no longer read his tweets or reply to them. That is in contrast to “muting,” which removes the person’s replies from @realDonaldTrump’s view but leaves them up for other users.
So, are President Trump’s tweets a public forum? If so, does that place limits on when President Trump can block users from replying?
I believe the answers are “yes” and “yes.” Because President Trump uses @realDonaldTrump for official business, and because President Trump allows (arguably, invites) replies on his tweets, he has made his Twitter timeline into a limited public forum. As such, the First Amendment applies. He can potentially impose content restrictions, but he can’t impose viewpoint restrictions.