Surely that must mean that Twitter banning people is also a violation of the first amendment, since that prevents them from accessing the same "public square" this ruling is protecting their access to.
If your account gets banned, you're unable to communicate with the government (since it is established that Twitter is the president's official communication medium). Wouldn't it thus be a violation of the first amendment?
> If your account gets banned.... Wouldn't it thus be a violation of the first amendment?
Not unless the government is the entity doing the banning (or collaborating with Twitter to ban accounts at its request).
If the government ran its own Mastodon instance, then there would be an argument to be made that it couldn't ban users on that Mastodon instance, depending on the nature of that Mastodon instance and what it's used for. But that's not what's happening. The government does not run Twitter in any way; they're simply users of the platform, and the government's ability to use features of the platform (such as the "block" feature) may be limited by existing laws, the same way the government's ability to do other things in life is limited by existing laws.
If one of the ways to interact with the executive branch is by calling the white house, wouldn't telecoms banning you from having a phone number be a more similar analogy?
> If one of the ways to interact with the executive branch is by calling the white house, wouldn't telecoms banning you from having a phone number be a more similar analogy?
No, because that's not what this ruling does. This ruling says that the White House can't block incoming calls from a specific number.
(Though even that's not really a great analogy, because phone numbers are not considered to correspond uniquely or permanently to an individual the way that social media accounts are).
You always have the option to communicate with the government via first-class letter delivered by the US Postal Service, or by showing up in person during the openly published hours of operation.
If the government, for some reason, decided to only communicate via telephone calls, there would still be no duty on any private phone company to provide anyone with the ability to call the government. The government would implicitly require itself to start up and operate a public telephone company, so that any person unwilling or unable to make phone calls via a private company could use it to communicate with the government instead.
In all likelihood, this would mean that VoIP phone booths would appear in every post office, and only calls from those phones to phones registered to government offices would be connected. They wouldn't even necessarily have to use phone numbers or connect to the PSTN; a .gov or .us SIP registration server would do.
For private services, if the government uses them at all, it must use them in a fair and nondiscriminatory manner. The private company has no duty to enforce this on its government users, or to police their behavior.
> The parent comment was about Twitter banning individuals, not about the ruling:
Right, and it's nonsensical to apply the first amendment to Twitter, because, broadly speaking, users don't have standing to make First Amendment claims against a private entity like Twitter.
If Twitter is banning people in a problematic way, or in problematic numbers, then there might be an argument that the government can't use Twitter to publish breaking news or announce policy changes. There are, in fact, separate lawsuits around this. But still, that's a far cry from saying "Twitter banning people is a violation of the First Amendment".
>Not unless the government is the entity doing the banning (or collaborating with Twitter to ban accounts at its request).
But twitter is working with the government in hosting the tweets and thus assumes responsibility to provide a public square, in which case it cannot ban people.
Otherwise government should be banned from using twitter because by picking a private company to put government messages on, the government official (in this case Trump) is picking that company's existing policy (what ever it may be) as a means of banning people, which the government isn't allowed to do.
So you're saying if fox news set up a 'private' website to host trump's posts and only allowed pro-trump people to comment that wouldnt violate free speech because it is a private website and the government itself isn't banning people who criticize it.
Fox News wouldn't violate the first amendment. At most, the POTUS might be prevented from using that website.
(Nitpick: "free speech" is a general philosophical concept; we're talking about the 1st Amendment, which is a particular application of one of many views on that concept)
> Otherwise government should be banned from using twitter because by picking a private company to put government messages on, the government official (in this case Trump) is picking that company's existing policy (what ever it may be) as a means of banning people, which the government isn't allowed to do.
Bingo.
I'm assuming you're a developer. Have you ever wanted to leverage a piece of code, say GPL licensed, that does everything you want it to, checks off all of the development boxes, would make your life amazing.... but were forced to go with something else because of compliance? Same thing here. Just because Twitter does everything functionally they need, if it forces them into situations that would run afoul of their requirements, then they're forced to go a different avenue.
You can still communicate with the government using official channels and you can still view his tweets. His account is basically write-only so you’re only losing your ability to send messages which won’t be read.
The key here is that the Twitter is under no responsibility to facilitate your first amendment rights. The government, solely and exclusively, cannot limit your free speech; Twitter can do whatever they want, and are under no legal obligation to provide any service whatsoever to you.
So you are saying the judge's ruling is wrong then. Because you can't defend twitter banning someone making them unable to respond to Trump's tweets while saying that people have the right to respond to Trump's tweets.
there are requirements government officials must honor in the Constitution due to their role, a judge can force them to honor it.
a judge doesn't have the capability, however, to force a private entity unrelated to the government to honor those same requirements.
Yes, it does create a situation where the company can impact a person's capability to see the material, but it doesn't run afoul of anything legal. If anything, it gives a reason why public officials should not use in this capacity platforms they don't control.
It focuses on the impact to the blocked user’s ability to interact with those tweets and the ensuing public discussion but does not assume any obligation on Trump to read replies.
No, your understanding of it is wrong. Trump is limited from blocking people because he's the President. If he were to resign tomorrow and go back to being a private citizen, he could block away to his heart-s content. Twitter, the company, can do what it likes because it is not an organ of the government, notwithstanding the choice of some government officials to make use of it.
But you are missing the part where Trump is allowed to pick the private company, and is thus able to pick one which enforces a ToS that the government would not be able to enforce themselves. This creates a loophole where by the government only has to pick private companies that ban anyone who is against the current government to get a defacto censor on the public square that wouldn't otherwise be allowed.
I m not missing that part, because it hasn't happened yet. Imaginary injuries don't have evidentiary value, regardless of their potential possibility; thus it would be improper for a court to pronounce upon them - that's what legislators are for.
You're overlooking the fact that requiring Twitter to retroactively alter its own terms of service once it provided services to the government would be a violation of the takings clause. In your hypothetical example, it's more likely that a court would enjoin the government official from use of the company with the overly restrictive ToS for official business, rather than forcing the firm to alter its policy.
>I m not missing that part, because it hasn't happened yet.
I'm glad I don't live in a world where people refuse to prepare for court cases until the actual injury has happened. Many legal groups have built plans and arguments for potential injuries, either to test if their clients can do some behavior, or to have a proactive case against the government if the government takes some action. For example, many times when the ACLU challenges a law in court, they were planning for it long before the law actually passed. They can't engage in the actual challenge until there are injuries, but they sure can discuss it and plan for it.
In this particular instance, I'm not trying to launch an actual court case, so the court rules of when you have standing for a court case don't apply.
Do you think federal courts would ban President Hillary from twitter because twitter has a policy of banning right-wing speech Hillary wouldnt be allowed to ban herself?
But if I want to use the public forum that has been created, I'm forced to agree to those ToS. Imagine for a second if those ToS included something like banning all people from the state of New York or it banned all socialist. The government, by picking a service with a ToS to host a public forum, is there by enforcing the ToS as a requirement to participate in the public forum. So why can the government enforce a ToS that wouldn't be allowed without the 'private company' loophole?
Now, twitter banning someone from all other parts of its service wouldn't be impacted. But banning someone from participating in the public forum should no longer be allowed unless done for a reason that the government would be allowed to use as well.
If the President (doesn't matter who) showed up at your house, in your living room, would you still claim the right to deny entry to anyone you chose?
The judgement governs the President's use of Twitter, not the interaction between Twitter and other people. Twitter does not magically become a Public Forum, just because the President uses it.
Now, I'm not sure that is Right and Just, but I'm also not going to worry about it too much. I don't use it enough to get completely wound up about it.
>If the President (doesn't matter who) showed up at your house, in your living room, would you still claim the right to deny entry to anyone you chose?
Yes, including the ability to deny entry to anyone that Trump doesn't want there. But now a judge has ruled they have a right to be there if Trump was the one asking to ban them, but in doing so has created a loophole where as long as I want to deny them entry because Trump doesn't want them to be there (note that this isn't done on behalf of Trump, but because it is my own desire) they can be banned. It makes the judge's ruling extremely easy to work around, which indicates some fundamental problem with the ruling.
Haven't read the full decision, but here's how I see it. Governmental agencies do not instruct users to get in touch via Twitter. There are dedicated phone lines, email addresses, offices, and websites that serve that purpose in an official capacity. Agencies who do conduct business in response to inquiries on Twitter do so as an added convenience on top of the other readily available public channels.
When Trump uses Twitter as his primary method of addressing citizens and announcing administration policies, then selectively prevents citizens from viewing those communications, he's doing something much different (in my mind) than a private company restricting the access of a person to a service whose terms of use they have violated.
The equivalence you drew doesn't seem valid — US citizens have no expectation or right to send communications to the Office of the President and have them read or acted upon. They do have that expectation/right to have equal access to public communications by the President.
The parent was pointing out why the logic is dubious, using a reductio: if you consider Twitter[1] a public square (as the court does), and thus you can't stop people from "petitioning the government" through it, then it's a double-edged sword: they must also protect the same speech that would be protected in a public square.
It seems a more sane resolution is to treat Twitter like a private venue where an official addresses some members of the public, like the room for the Correspondents Dinner: they have no obligation to let any specific person in (esp. after they're deemed abusive). It's just that Twitter is a private venue with a much higher capacity.
The right to petition the government is not the right to petition it in every possible venue. US Citizenship or personhood does not mean you can e.g. ask questions at a press room briefing; there are filters they can apply.
[1] technically, the subset of it involving interaction with government officials
Yes they were. The first amendment does not apply to Twitter. It applies to Trump. Absolutely nothing Twitter does is even capable of being a 1st Amendment issue.
>Absolutely nothing Twitter does is even capable of being a 1st Amendment issue.
I agreed with that:
>>if you consider Twitter[1] a public square (as the court does), and thus you can't stop people from "petitioning the government" through it, then it's a double-edged sword: they must also protect the same speech that would be protected in a public square.
Do you understand the difference between "A implies B" and "A is true"? I was saying the former. I agree with you that the latter is false (where A="The first amendment applies to Twitter).
Can you help me to find the part of my original comment that made the above unclear?
Here: "that must mean that Twitter banning people is also a violation of the first amendment"
That's... pretty darn clear.
> Can you help me to find the part of my original comment that made the above unclear?
The first two lines of your comment frame your response as counter to the position of the person you are replying to. That would be counter to you new claim that you agree it's not a 1st Amendment issue.
Disagreement with a claim followed by an argument is generally taken by readers as an argument as to why the claim is wrong, not right. Just so you know for future writing.
>Here: "that must mean that Twitter banning people is also a violation of the first amendment"
>That's... pretty darn clear.
Yes, it's clearly supporting exactly what I originally claimed: that the OP was saying this ruling implies that Twitter must do X and is therefore absurd, not that the OP thinks Twitter must do X. Again, the concept of a reductio ad absurdum, extremely common in internet forums like this one: "You claimed X, which implies Y, which is absurd. So X must be wrong."
"The first amendment doesn't apply to Twitter" doesn't engage with that at all.
>The first two lines of your comment frame your response as counter to the position of the person you are replying to. That would be counter to you new claim that you agree it's not a 1st Amendment issue.
Not when I'm objecting to the attribution and clarified specifically what I meant.
>Disagreement with a claim followed by an argument is generally taken by readers as an argument as to why the claim is wrong, not right. Just so you know for future writing.
What about when I disagree with the attribution of a claim and want to clarify someone's point? What other way could I have possibly clarified the parent's point so that you wouldn't misinterpret my comment? Just so I know for future writing.
If you just didn't read what I wrote or didn't follow the actual discussion, you should probably just own up to it and not make up some story about how there's an actual improvement possible over the original post. (FWIW, you still can't seem to think of such an improvement.)
If I may make a suggestion, the problem might be that you immediately think that any critical comment must be disagreeing with everything in that comment, even if the text of comment says otherwise, and you can therefore ignore the text. That's an error on your end to correct, and there's nothing in my writing that would fix it.
> The parent was pointing out why the logic is dubious, using a reductio: if you consider Twitter[1] a public square (as the court does
The court emphatically did not find that, and, to address the footnote:
> [1] technically, the subset of it involving interaction with government officials
Nope, not even that.
The court found the virtual space created by the @realDonaldTrump account, specifically, to be, as a result of government action, a “public forum” under existing First Amendment case law, which holds that government actions with regard to participation in such a forum are restricted by the First Amendment such that government officials may not engage in, among other things, viewpoint-based censorship of public participation in such forums.
> It seems a more sane resolution is to treat Twitter like a private venue where an official addresses some members of the public
The court hear is applying exactly the existing law of privately owned spaces in which the government opens a public interactive forum of the same type; this isn't a new rule for social media.
Alright, I'm lost. You claim that you're disagreeing and correcting my misunderstanding of the case, but it looks like you're supporting the very claims I made:
>The court emphatically did not find that [Twitter is a public square]
>>[1] technically, the subset of it involving interaction with government officials
>Nope, not even that
>The court found the virtual space created by the @realDonaldTrump account, specifically, to be, as a result of government action, a “public forum” under existing First Amendment case law,
Wait, what? You just said that the court did not find find Twitter to be a public square ... then you said that it found Twitter to be a public "forum". So... you're introducing a distinction between a public square and a public forum? It seems that obligates you to explain the difference between the two, or you're just contradicting yourself. And yet you didn't, or you expect it to be obvious, even though the chief way to resolve the disagreement would be to address precisely that distinction!
You also made a big show of objecting to my claim that the applicability was to a subset of Twitter, and then in the very next line said that the applicability is to "the virtual space created by the [Trump] account". Er ... yeah, that's a subset of Twitter!
Now, I agree I could have been more precise about the boundaries of this subset, but it seems either pedantic or confused on your part to object to that line right before you paraphrase the part of the decision that limits the applicability to a subset of Twitter! I honestly don't know what you think you're refuting there. Even if the bulk of my point is wrong, the footnote is correct insofar as it recognizes that the ruling is limited to certain government-related parts of Twitter, which you agree with.
>> It seems a more sane resolution is to treat Twitter like a private venue where an official addresses some members of the public
>The court hear is applying exactly the existing law of privately owned spaces in which the government opens a public interactive forum of the same type; this isn't a new rule for social media.
Yes, you can certainly claim that, and cite reasoning that says as much, but it's not responsive to my justification for why it doesn't make sense to begin with. As an attempt to ground my disagreement, I introduced a comparison to a press conference or the correspondent's dinner, and characterized Trump's Twitter interaction as being the same kind of thing "with more capacity". Many government pronouncements do not happen in an environment in which they have to permit everyone's comments -- certainly not announcements of new policy decisions.
I agree that you can copy-paste someone's decision that "hey, I'm calling this a public forum". But I gave a specific reason why it isn't. To further the discussion would require articulation of why that reasoning is flawed, not simply a repetition of the judge's original premises.
So, I appreciate that you think I erred and are trying to correct a mistake, but I just don't see how your comment makes headway: you're just introducing distinctions that you don't justify, denying claims and then apparently agreeing with them, and then reasserting things that I specifically objected to with reasoning without addressing said reasoning. I don't know what you expect such a comment to accomplish beyond showing that you can paraphrase a decision while not engaging with the precise objections to it.
Furthermore, the entire point of my comment was to clarify the OP's point, so any objection to the substance of said point should be directed at the OP's comment, armed with the greater clarity of their point that my comment offered, not to mine.
If your goal was to appear knowledgeable of the ruling and too informed for anyone to risk disagreeing with, your comment makes a lot more sense though. I don't find that to be as helpful as direct engagement with arguments though.
Case law would disagree. Here's a case where the Supreme court ruled that Facebook banning someone was a violation of their first amendment rights. [0] Salient quote: "Foreclosing access to social media altogether thus prevents users from engaging in the legitimate exercise of First Amendment rights"
Edit: as pointed out, this ruling doesn't actually disagree with what the previous comment said. It does seem similar enough to me to be relevant though so leaving it up.
That is a restriction on lawmakers, not a restriction on Facebook. The law was found unconstitutional. Facebook didn't have to do anything here. As far as I can tell, he was never blocked or banned on Facebook's platform to begin with.
Ahh, right you are. That is an important distinction. Still, it seems a little odd to me that it results in the same thing and is treated differently. What if a government asked Facebook to ban someone and they complied, is that Facebook doing it or the government.
Government is doing it. If Facebook is doing it at the direction of a government entity and would otherwise not do it (and this is where I would expect case law to get into the contextual details of implicit/explicit direction etc) then government is acting in violation of the first amendment.
It doesn't result in the same thing. If Facebook bans someone, they can't log in. If the state bans someone, they can be fined or jailed. And in this particular case, he was banned from all social media and a bunch of other websites.
I Am A Former Lawyer: cursory reading of that judgment shows it as a case of the State of North Carolina passing a law asking it illegal for someone to use a commercial social network service. Presumably Facebook are banning a user in response to a state’s law enforcement request under State law. The Suorene Court is most likely ruling that the state law was in violation of the first amendment.
> The first amendment doesn't apply to Twitter (the company). It applies to governments.
So, hypothetically speaking... if Trump would move to a social network owned by his friend... then Trump would not be allowed to block anyone, but it would be okay if the friend would take a hint and ban the person from the whole platform?
You're right, and both of the things we said argue that the comment I was replying to was misunderstanding the 1st amendment. I just thought it would be a short and simple way of explaining the error to the person I was responding to
the conditions of the ruling still apply though:"is a public forum and that blocking users on the basis of political speech is a violation of their free-speech rights under the First Amendment". Any american user should have access to that forum without obstruction, no?
It's funny how this would elevate his twitter account to unprecedented status, which means twitter will have to implement some bizarre measures.
Note that “public forum” is a term of art in First Amendment case law that refers to a venue owned or controlled by government, including a privately owned venue over which government exercises some control, made available for general or limited public discussion; the first amendment limits what government can do in such forums.
And this status is not an unprecedented one for government-controlled social media accounts; while the Trump case at issue here is the highest profile one to have reached a decision, it is not the first to find a government agency’s or official’s social media account to constitute a public forum in which viewpoint censorship by government of other users is prohibited.
Also, the decision constrains Trump's behavior on Twitter, it does not mandate any change to Twitter features.
If I was a government official and decided to host a public event at a private property which I paid for, where the private property said no women allowed (say it was a private club which allowed to do such), could I use that rules to prevent women from attending the event? Or would the rules of the private property either block me from utilizing them at all or be overridden in regards to my event?
> If I was a government official and decided to host a public event at a private property which I paid for, where the private property said no women allowed (say it was a private club which allowed to do such), could I use that rules to prevent women from attending the event?
Even if it were a public forum (which not all public events involving a government official are), I'm not sure that public forum law prohibits sex discrimination as well as viewpoint censorship. I can see an argument that it should (and that it shouldn't), but I don't recall. seeing any case law either way.
Depends on how a judge rules. You could be required to find another venue or to admit women regardless.
Either way, the fact that it is a private rule means it is not a public law. The government doesn't have to abide by laws you just made up for yourself on a whim. If I say "no shoes allowed on my private property" the police aren't forced to comply with that, so why would a government official at an event be required to comply with some inane sexist rule?
The government official isn't the police, but even more so, I'm not talking about the government official, but the random public who attends. I can say they aren't allowed on my property at which point it is a crime for them to be there.
A crime but not a felony nor even a misdemeanor. Trespass is a tort, and I think a 'civil tort'. So unless they're doing damage I don't think they owe anything for this 'crime'.
The police can ignore your rules in certain special cases when they have a legal reason to enter your property without your consent. In normal circumstances, you can certainly deny them entrance if they don't take off their shoes.
No, you can deny them entrance. A "no shoes rule" would be entirely your own device and only of concern to them insofar as it gives you a (personal) reason to deny entrance. It has no legal weight.
If you permit them to enter, and you have a no shoes rule posted, they are free to enter with shoes. Because such a sign means fuck all in the world.
The First Amendment only blocks the government from restricting speech, not anyone else. A private company can limit speech. The government cannot cause or compel that private company to limit speech.
Also it's not clear to me that Twitter has to do anything with Trump's account. The judgement is against Trump, not against Twitter. Trump isn't allowed to use the block button, but Twitter is not under any obligation to prevent him from using it illegally. Just the same that Twitter is not under any obligation to implement extra safeguards for twitter accounts owned by people whose conditions of parole restrict their use of social media--that's the user's issue, not Twitter's.
If that's the case, it is likely he can just continue to block people, I don't think he's going to unblock people suddenly because of this. If he is basically immune to most lawsuits (in general - I'm sure at some point something will break that line) then why would one judge's ruling have him change his behavior. He's pretty critical of judges already.
On the other hand, if the judge wanted to see this change, requiring Twitter to both remove (his) block button and unblock all existing users (from his account only) would more likely happen.
He's not (barring reversal on appeal) immune, or this case would never have reached a judgement.
> On the other hand, if the judge wanted to see this change, requiring Twitter to both remove (his) block button and unblock all existing users (from his account only) would more likely happen.
Judges don't have unlimited freedom to arbitrarily issue orders directing labor of nonparties to a case just because they suspect s party might not respect the judgement. There are, in any case, processes for addressing failure of a party to respect a judgement, which Trump is no more immune to regarding this judgement than he is to the case resulting in the judgement.
> There are, in any case, processes for addressing failure of a party to respect a judgement, which Trump is no more immune to regarding this judgement than he is to the case resulting in the judgement.
And what are those? For regular people, the judge can have a person jailed for contempt of court. I doubt that the POTUS is worried about that.
The crucial part is who is doing the blocking. Twitter as a private company can block, Trump as a member of the government on an official government channel cannot. Companies do not have a constitutional obligation in the first the government does.
Oh there's definitely some path of legal wrangling that may end up compelling Twitter to do something here. In the end whether that's true or not will simply come down to a Judge and if Twitter wishes to fight further (eventually to the top court) or stop and give in. It doesn't have to be written in the constitution for someone to be compelled to do something wacky in this country.
Case law would disagree. Here's a case where the Supreme court ruled that Facebook banning someone was a violation of their first amendment rights. [0] Salient quote: "Foreclosing access to social media altogether thus prevents users from engaging in the legitimate exercise of First Amendment rights"
Packingham v. North Carolina [0] was about the constitutionality of the state banning users from social media - not on social networks issuing their own bans.
See above comments. The case doesn’t say what you think it says - it’s government that isn’t allowed to foreclose access, so the underlying cause here is Carolina’s violating legislation.
