When @POTUS Twits

Have you been blocked by the twitter account @realDonaldTrump? That’s quite an accomplishment really, given that he’s got over 15 million followers. Congrats. You stood out enough from the millions of people who twit nasty stuff at a guy who gets a lot of hate. He may be thin skinned. He may be cynically diabolical, if you want to give him that much credit. But achievement unlocked.

But what about when he gets the keys to the @POTUS twitter account? Sure, the account only has 12 million followers, so it’s possible he won’t want to take the step down, but still. Should POTUS be allowed to block you? This is the question posed by Room For Debate.

On one side Elizabeth Joh, a crim and con law prof at Cal Davis. On the other is Danielle Citron, the Maryland lawprof who has dedicated her scholarship toward justifying internet censorship in the name of women’s feelings. Joh begins the debate:

Should a president’s Twitter account be permitted to block anyone, including journalists? Blocking is a Twitter feature designed to help its users address well-documented harassment and abuse. If a user blocks you, you can’t see that person’s tweets, nor can you “retweet” them in order to comment on them. While blocking is a tool to fight harassment, a user can block a follower for any reason. (Blocking does not make it impossible to view a person’s tweets, although it is much more difficult to do so.)

This would seem obvious, but it’s likely worth mentioning, even if the “well-documented harassment” part is disturbing. Perhaps this is a concession to those who have endured harassment, or to blunt the cries of the sensitive. The nature of public discourse, even on the twitters, is that you can hear from the best and the worst of humanity, so why would it be surprising that the worst twit bad stuff? Then again, it’s not as if blocking doesn’t work when it’s not “well-documented harassment,” but when it’s not in total agreement with your feelz to create your happy bubble.

Surprisingly, the question doesn’t have an easy legal answer, but the best policy answer is no. As a private company, Twitter is not itself considered a public forum regulated by the First Amendment. Twitter sets the rules for its users and might, for example, create special rules for the President or other public figures.

The “best policy argument” really isn’t the question. Much as I agree, so what? The question posed was whether the president “should be able” to block. Until Joh gets Bannon’s old office, her “best policy” views aren’t particularly interesting.

Obviously, twitter is a private company. Obviously, twitter is not regulated by the First Amendment. And obviously, twitter gives the @POTUS account the same blocking options as any other verified account (although the TOS as applied to verified accounts appear to be far more malleable than previously understood).

But then, what does the law have to say about @POTUS’ speech on the twitters?

As for Trump, when he assumes office in 2017, his speech is probably government speech. The First Amendment permits the government to control its own speech, so blocking followers may be permissible.

I suspect I’m just too old and stupid to grasp the import of these two sentences, but I have no clue what this means.

In response, Citron could have demurred, but then wouldn’t have gotten her name in the paper. So instead, she wrote:

Blocking followers on Twitter is not a matter of government censorship, but rather of expressive freedom to listen and speak. The president can decide if he wants to hear out the public in person, on the phone or online. The choice to block is no different from a decision to decline an invitation to a conference. It may be inadvisable but ultimately it is his decision.

Cite? Some rather sweeping conclusion without either basis or rationale. But this is America, and if an academic can’t give her naked legal opinion, it’s violence (or something).

No one else’s rights are infringed if the president blocks followers on social media. A presidential Twitter account is not hosting official business like an agency rulemaking where the public has the right to comment on policy. It is not carrying out constitutional, statutory or other ceremonial presidential duties.

Well, that’s kinda the question at hand, because when a president speaks publicly, and although twitter may be a private company, it possesses the hybrid “public square” components that give rise to the question and mean the president gets heard by, you know, millions upon millions of people. Except not you, blocked scoundrel.

If the president gave a speech carried on a television network, which like twitter is a private company (putting aside FCC licensure requirements), could he tell the company not to broadcast his speech to your television because he just doesn’t like you?

No one should have to tolerate harassment, stalking or threats. As the report issued by the Anti-Defamation League’s Task Force on the Online Harassment of Journalists found, blocking tools are indispensable to ensuring the safety of individuals targeted for online abuse.

And there’s the old censor we’ve come to know and love, including a link to her book available for sale on Amazon (buy it!!! Buy it NOW!!!). Therein lies the problem with Citron’s position, as she is first and foremost a defender of protecting the delicate ears of the downtrodden, usually with genitalia once associated with the female sex, and any argument that would preclude @POTUS from blocking people, Americans, foreigners, the media, anyone, could be used against her when she joins the chorus singing Hallelujah that @Nero has been banned, that @Instapundit has said “fuck it” and walked away.

Except this time the person she would love to silence happened to be @POTUS. And not even Citron is foolish enough to call for the ears of the twittersphere to be protected from the violence of the president’s twits.

So can @POTUS block people? Beats me. I learned nothing whatsoever from this debate, except that having nothing worthwhile to say has never stopped a lawprof from agreeing to engage in a debate to get her name in the New York Times.

12 thoughts on “When @POTUS Twits

  1. Jim Tyre

    if an academic can’t give her naked legal opinion

    So you really want Citron to argue naked?
    On the actual subject of the debate (speaking loosely), I’m not completely certain of the answer. But invoking television networks (assuming that the network is not a subscription one) doesn’t really add much. NBC doesn’t have the technical ability to to limit its viewers to those liked by the President. Twitter does. Whether that technical difference makes a legal difference, I’m not sure.

    1. SHG Post author

      What is with your sexualized reactions lately? Take a blue pill. As for NBC, I used it only because I wouldn’t remember any of the cordcut networks like Netflix. Though, I bet NBC could if it really wanted to.

  2. Dan T.

    She’s at least being consistent, agreeing that the power to block people belongs to all Twitter users, even ones she hates, instead of coming up with convoluted justifications for letting her side use those tools against the other side and not the other way around.

  3. Franklin Michaels

    Seems like if government has speech rights in the license vanity plates it chooses to put on the streets, blocking amounts to deciding who’s stuck with the boring old random-issued standard.

    1. SHG Post author

      I think I understand the analogy you’re attempting to make. What it has to do with anything, however, remains a complete mystery to me. And no, this isn’t an invitation to explain it further.

        1. SHG Post author

          Yes, I’m aware of the case. What that has to do with anything…never mind. Great analogy. Thanks. Have a great day.

  4. Norahc

    “The First Amendment permits the government to control its own speech,”

    Learn something new every day. Who knew that the government needed the First Amendment to say whatever it wanted?

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