Short Take: The Precedential Block

You know how you can walk up to the White House, knock on the oval office door and demand that the president sit there and hear out your grievances? Or how you get to stand, if not sit, in the White House briefing room and ask your question? Because you are an American, and it is your right to hear what your devoted public servant, the President, has to say, not to mention give him a piece of your mind.

Right? Of course not. Except maybe on Big Block of Cheese Day.

So is twitter different?

President Trump’s alleged blocking of members of the public on Twitter on what appear to be viewpoint-based considerations, preventing them from reading his tweets and responding to them, raises serious constitutional issues.

There’s also a certain panache to being blocked by Trump. After all, it’s not every American who can piss off the president enough to get blocked. It’s nowhere near as easy as getting the FBI to open a file on you. Anybody can do that.

The Supreme Court has recognized that special free speech rights apply in areas such as streets and parks, which the Court has said have been “immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly.”  As a social media platform, Twitter is not a street or a park, nor is it a government property.  And no one can claim that the ability to see Twitter posts or reply to them are speech areas that have been “immemorially been held in trust” for speech and assembly.

Twitter is, obviously, a private forum, and @realDonaldTrump is a person as well as the president, meaning that he, too, has a First Amendment right to speak his mind, or whatever it is that’s reflected in his twits, as well as association, meaning that he does not have to invite you to the White House sleepover party. There are factors militating against his blocking people on the twitters being a constitutional crisis.

But then Sean Spicer went and changed the calculus.

The President has not, of course, formally designated the @realDonaldTrump Twitter account as a public forum. The President, however, uses his @realDonaldTrump account to speak to matters as President of the United States.


Here, instead of a government website comment forum, the President is using the social media platform Twitter as a place to issue “official statements by the President of the United States” and permit comments thereto.

When Jameel Jaffer sent a letter to Trump about unblocking folks, arguing that it was unconstitutional as a “designated public forum,” it was prior to Spicer affirming that Trump’s twits were “official statements of the President.” My reaction was “meh, stupid but not unconstitutional.” But after this claim, turning the twitter account from a medium of embarrassment to an official government organ, the balance changed.

As blocked twitter users can still see the twits using an incognito window, and they can twit back at him all they want, as he’s under no specific duty to give a damn, read the twits or respond, it may not be the most significant issue. After all, the president gives speeches on the tube, and yet the government isn’t obliged to give everyone a free TV so they can watch.

Is being blocked by @realDonaldTrump a violation of your constitutional rights, or the best thing that’s ever happened to you? This may be the first time this issue has hit the fan, but given our digital future, it won’t be the last.

9 thoughts on “Short Take: The Precedential Block

  1. B. McLeod

    I don’t use Twitter, but if I did, I am sure I could manage to be blocked in a matter of minutes. Simply a matter of criticizing his practices (works at ABA Journal, and will work with Trump).

      1. B. McLeod

        One of six, a dozen halves of the other. Not that any of them listen. What difference does it really make if Trump “blocks” people as opposed to simply ignoring what they said?

        1. SHG Post author

          According to Lawfare, he gets about 20,000 replies to every twit. It’s not as if one more “lol wat?” is going to be the twit that breaks the camel’s back. But that the argument ignores the significance of a twit, a constitutional right is still a constitutional right. We get ’em, large and small.

  2. Jim Tyre

    Is being blocked by @realDonaldTrump a violation of your constitutional rights, or the best thing that’s ever happened to you

    Definitely not an either/or answer.

    But then Sean Spicer went and changed the calculus.

    He did. But there was a pretty good argument, though clearly not a slam dunk winner, even before. That there was a decent argument surprised me.

  3. Fubar

    With humblest apologies to James VI and I’s translators, and a certain bard of Stratford-upon-Avon.¹

    Oh, Trump, where’s thy sting? Is it fitter
    In fortune and men’s eyes to glitter?
    Or does it ring hollow
    To not let me follow?
    I weep, outcast. You blocked me on Twitter!

    FN 1: Captain Obvious insisted on hammering in this introductory dissertation due to recent larcenies by a Nobel Laureate.

  4. AgeOfKEK

    Is the issue viewing the tweets or responding to the tweets (petitioning)?

    If I have a right to respond to the president on Twitter, doesn’t that mean I have a right to a Twitter account to respond? That would mean any American citizen would be free from banning, just so they could respond to the president. Wouldn’t that complicate the line between the private company, Twitter, and the so-called public forum to respond to the president?

    This seems ridiculous. Write a letter or email with the tweet quoted.

    1. SHG Post author

      There are certainly alternatives that would vitiate any harm of being blocked, but then, if Trump picks the public forum, the burden doesn’t shift to the public to find an alternative if blocked from the one Trump uses.

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