President Donald Trump has been hit with more than 100 lawsuits since he first took office nearly six months ago. While many of the early cases involved issues of refugee and immigrant rights, the latest hopes to take the prolific Twitter-user to court over his decision to “block” certain critics on the social media platform.
In a complaint filed in Manhattan federal court Tuesday by the Knight First Amendment Institute at Columbia University, seven individuals, including a surgeon, a police officer, professor and political consultant, accused the President of violating their First Amendment rights by preventing them from reading his tweets.
The users argue that the @realDonaldTrump account is a “public forum,” meaning they cannot be excluded from it simply because of their views. According to the plaintiffs, the account is a public forum because the President uses it to make official policy announcements.
The argument brought against the President is a “powerful one,” according to Floyd Abrams, a First Amendment attorney at Cahill Gordon & Reindel LLP who has defended the free speech rights of individual journalists and corporations alike.
When Big Law Business last spoke with Abrams, he raised the possibility that the then-President-Elect might be sued by the press for some of his inflammatory statements on Twitter. But the prospect of a lawsuit over the opposite — banning individuals from reading his Tweets — hadn’t yet been raised.
“I think a politician or a public figure of note can have a Twitter account of public note which would not be deemed to be a public forum,” Abrams said. “But in the Trump Administration, what he says on his tweets are as much public in nature as a press conference.”
We caught up with him to find out what makes the Knight Institute lawsuit different.
Big Law Business: So what’s different about this case? Why is a politician’s account not automatically considered a public forum?
Abrams: I would not think that almost any politician’s Twitter commentaries are by their nature the stuff of being a public forum. But I do think that President Trump has done something which is unique to him by using it as an “official” means of communication about public policy issues. The fact that what he says is important because he’s President is not what turns the tide for me. What leads me to think that he has created a public forum is the fact that his administration and the President himself treat it that way.
They don’t just call it official. His press secretary refers to it as official, often quotes it, refers journalists to it and the like. So in this extraordinary circumstance, I think the argument by the Knight Institute is a powerful one.
BLB: So it’s not public just because it’s Twitter?
Abrams: It’s not that, and in fact I think a politician or a public figure of note can have a Twitter account of public note which would not be deemed to be a public forum. But in the Trump Administration, what he says on his tweets are as much public in nature as a press conference. And the fact that he’s got 33 million people who read it only adds more force to that proposition. [Editor’s note: the account currently has 33.8 million followers.]
BLB: What constitutes a public forum exactly?
Abrams: The sort of paradigmatic example is a public billboard, where people can participate in discussion of public events. Public in the sense that it’s put there by the government. A private entity is entitled to decide who speaks on its property.
BLB: And Twitter is private, so most accounts don’t fall into this category, right?
Abrams: I do not believe that the Knight Institute would have prevailed if it had sued Twitter. I don’t think that a lawsuit against them would have prevailed. But a lawsuit against a president who has an account which has all these indicia of being public in nature and intent and impact does, I think, cross the line into being a public forum.
Sometimes we have a concept of a limited purpose public forum. So, at Penn Station [in New York City] you see a big billboard, and if they start carrying any political ads they’ve got to start carrying them all. It’s not up to them to decide. It is up to them to decide whether to allow political speech at all.
If we’re talking about a government entity that is in control of a space, which is what I think what we have now with President Trump’s Twitter offerings, then it would be treated as essentially public in nature.
That said, I don’t want to suggest that this is an easy case.
There are consequences of saying something is public. The consequences are that you can have outrageous speech of the kinds the First Amendment protects. In America, we protect racist speech, we protect hate speech, we protect a lot of the speech which other democratic countries ban or curtail, so once there’s a body of law that treats tweets of certain public people as “public,” there may be consequences that are unacceptable to the speaker.
One interesting question, is suppose the Knight [Institute] wins the case, is there anything the President can do to make his tweets less of a public forum? He certainly doesn’t want to diminish the amount of people who read it, but is there something he could do analogously to the public buses or the like [where New York City’s public transit authority in 2015 banned all political speech in order to prohibit a conservative activist group from posting anti-Muslim advertisements], saying ‘We’re not going to do this or we’re not going to do that, so therefore we don’t have to do anything.’
My point is modest. All I’m saying is that there are potential consequences of deeming his tweets to constitute a public forum which his lawyers could argue would lead a court to be chary of characterizing it as a public forum.
Bottom line, I think it’s a close case. But I do think the official self-characterization by the President and the administration of what he says may well lead a court to say that it is public.
BLB: What kind of defense might we expect to see from the administration?
Abrams: The first thing he might say is ‘It’s private, it’s mine. That millions of people read it doesn’t make it any less my own musings.’ It’s not as if there’s some case directly on point which necessarily requires a finding that it’s a public forum. There’s a lot of public forum law, but almost all of it is the government speaking, or the government offering a place for speech as opposed to an individual. If he had to pay to tweet, it would help to make it more private, or if the government was paying it would make it more public, but that’s not relevant here.
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