We know precisely when Donald Trump became a public official. Many of us watched the event on TV.
But when did Donald Trump become a public utility?
The president created his verified Twitter handle, @realDonaldTrump, in 2009 and became a very active tweeter around 2012 or so. His tweets played a central role in his presidential campaign and remain a favored method for communicating directly with citizens. It does not run on an appropriation of government money – Twitter accounts are free – and Twitter itself is a private company.
But that has not stopped a group of self-described defenders of the First Amendment from arguing that access to Trump’s tweets is a right the president does not have the license to take away.
The Knight First Amendment Institute at Columbia University sent a letter to Trump claiming that the president’s Twitter account is a “designated public forum” and, as such, the government is prohibited from excluding individuals because of their views. In this case, that means they want Trump to unblock individuals who have been denied access because they criticized or disagreed with him on Twitter. Blocking someone on Twitter means that account owners cannot follow you or view your public tweets while logged in (though they can easily log out to see them).
Trump, like many other Twitter users, has liberally blocked people for years. The Knight Foundation claims that, after he became president, this act violated the First Amendment. The organization says the administration should prepare to “face legal action” if it does not proactively address the issue.
“Though the architects of the Constitution surely didn’t contemplate presidential Twitter accounts, they understood that the president must not be allowed to banish views from public discourse simply because he finds them objectionable,” said Jameel Jaffer, the executive director of the Knight Institute. Lawyers for the institute have argued that @realDonaldTrump, and the president’s less-prolific @POTUS account, amount to the 21st century equivalent of a town hall meeting.
That position ignores several realities. The First Amendment guarantees the right to say what is on one’s mind, free of government interference. It doesn’t guarantee either a platform or an audience. Anyone who wants to criticize Trump on Twitter has a perfect right to do so. Millions of people exercise that right every day, and many of them end up finding one another on the #BlockedByTrump hashtag later. But unless Twitter changes its policies, users don’t have a right to repeatedly intrude into the president’s favorite channel for communication to and with the public.
Trump has a personal right to choose the people with whom he cares to engage in public discourse. As do I, for the record. Our firm’s “Current Commentary” blog allows comments, but only under certain circumstances. The comment must have a full personal name attached to it, and it needs to be reasonably on topic for the post on which it appears. We also do not publish comments that contain personal attacks or what we consider to be racist or sexist content. This does mean that some people who want to use our blog as a platform cannot do so. It does not mean we’re preventing them from discussing our content in their own space if they wish.
Trump is a public official, at least when speaking as the president, which may affect whether the Public Records Act requires his tweets to be preserved. But that question has no bearing on whether a privately owned and controlled “space” – such as Twitter – can serve as a designated public forum. As Noah Feldman pointed out on Bloomberg, if Trump violates Twitter’s usage guidelines, Twitter would be within its rights to shut down his account.
I don’t believe that the people suing Trump have any expectation of winning. The Federal Communications Commission abandoned its Fairness Doctrine six years ago, before the Supreme Court had a chance to take an increasingly adverse line of court decisions to its logical conclusion and strike the rule down. For now, the FCC’s “Equal Time” rule remains in force, requiring broadcast TV stations, though not cable channels, to give equal opportunities for “legally qualified” candidates to appear. In practice, this rule mainly serves to limit access to candidates on public airwaves, rather than increase it. When Arnold Schwarzenegger ran for governor of California, some stations stopped airing his movies to avoid triggering the rule.
My guess is that the self-styled First Amendment crusaders are really fighting for a higher profile and, perhaps, a share of donations from the large number of people who want to tell the president exactly what they think of him – if not to his face, then to his Twitter handle.
But just because you have the right to speak your mind doesn’t mean anyone, including the president, has an obligation to lend you their ears – or their microphone.