The Twitter Village Gatekeeper

The argument made by the Department of Justice before the Second Circuit, that this Trump guy blocks people on Twitter as a regular citizen exercising his First Amendment right, but twits as the president of the United States when he bans transgender people from the military, received the reaction it deserved.

The court appeared skeptical on Tuesday. Peter Hall, one of the judges on the panel, noted the oddity of the Justice Department representing Mr. Trump in his personal capacity. “It’s curious to me that the Department of Justice is here representing, essentially, a private entity,” he said.

Of course, this was a bit on the snarky side, given that it’s not only an “oddity” but an incongruity. If Trump used his @RealDonaldTrump twitter account to speak as president, then it’s inconsistent to claim that it was only when he wanted it to be viewed that way, and not when he didn’t. This would be true if the argument was made by his personal lawyer, MIchael Cohen, or by someone on the government payroll defending a petty man’s right to block citizens, even if it’s the least significant attack of things he does.

On the one hand, if Trump doesn’t want to hear voices telling him he dresses funny and sucks at being president, he could mute them. On the other hand, if someone blocked wants to see Trump’s twits but is denied their hate follow, they can always go incognito. Technology has side doors, back doors and front doors. If one gets shut, there’s usually another.

This isn’t to say that the Knight Institute’s twitter case lacks merit, as Judge Naomi Reice Buchwald held otherwise, but it puts the moving target of technology squarely into the line of fire. Because Trump has seized upon Twitter as his way of spewing his views and annoyances to the public, while inexplicably being president, he’s made it his “village square.” As Judge Buchwald concluded, having done so, Trump can’t lock the gate to keep people who use big words out.

As far as it goes, this seems uneventful, a tempest in a teapot. Mute all you want, but don’t block. Problem solved. Even Orange Man can manage this one.

There are, obviously, collateral questions arising from this required open twitter policy. If it’s a violation of constitutional rights to block someone on twitter, why then can they be blocked from the West Wing press conferences? But physical limitations, safety issues and the availability of media and C-Span to fill the gap provide distinctions. Then again, if one can’t afford a TV or internet access, these don’t help much. Is internet access a right? Is a screen a right? Does the poor person not have as much right to access what his president has to say as the rich person?

Twitter, beyond getting tons of free publicity out of this battle, even if it still hasn’t quite figured out a way to capitalize on it, has been riding the wave. But the sequelae of a ruling that when a president, or any elected official, uses it as their means of communicating acts of official office turning into a de facto public forum should be scaring the crap out of Jack Dorsey.

Twitter is, undeniably, a private corporation. As such it cannot be subject to the proscriptions of the First Amendment, which prohibits only the government, and those sucking on its teat, from impairing free speech and expression. Some have argued that the Safe Harbor of Section 230 of the Communications Decency Act of 1996 creates a duty to be an open forum, but that’s not the law no matter how often it’s shouted in a crowded theater.

The hybrid existence created by the case against Blocking Donald, however, raises problems that flow fairly naturally and obviously from the establishment of a right to see Trump’s twits. If Trump can’t block someone because there’s a right to access his twits, can Twitter? How can someone be thrown out of the village square for telling a fired writer to “learn to code,” when the same expulsion prevents him from telling it to the president?

Twitter could come up with a means of allowing otherwise undesirable users to only see, and twit at, the accounts of government officials, and preclude their twitting whatever the Twitter Scolds deem too awful for eyes at anyone else. But they have yet to do so. In the meantime, what if Twitter and the current occupant of the Oval Office had a more sympatico relationship and decided that the Scolds would banish from the village square anyone who twitted unpleasantness at President Gillibrand?

The president might be precluded by the Constitution from blocking some outraged and outrageous person from both seeing her twits and twitting hurtful words in her timeline, but Twitter, the private entity, could. It might not be inclined to do so for Darth Cheeto, but there will eventually be another occupant of office and, well, things change.

The case has implications far beyond the current White House occupant. Public officials everywhere are increasingly turning to Facebook, Twitter and Instagram to interact with constituents beyond town halls and City Council meetings. In turn, judges are beginning to take notice — by accepting the premise that the First Amendment applies on social media spaces. As the Supreme Court recognized in 2017, social media “can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard.” Should elected officials get to decide who can participate in these electronic town halls?

There is no question but that the case has implications beyond Trump, even if the obsession with what’s happening at the moment motivates and consumes the Knight Institute. But the Times similarly takes a narrow and one-sided view of the case, because it shares this myopic grasp of the issue.

If there are rights to be created for conduct occurring on a forum owned by a private entity, converting it into a village square, then the implications for the putative owner of that square, and it’s authority to expel, suspend, silence or block users at will is the flip side of the equation. Just as Trump can’t rationally claim to use Twitter as president one moment and private citizen the next, the medium can’t claim to be a private company when it kicks miscreants off its site one moment but hosts an electronic town hall the next.

15 thoughts on “The Twitter Village Gatekeeper

  1. Keith

    As a local elected official, would my discussion of this topic make this comment, and the space below it, a limited public forum?

    If so, I would like to thank you, as our host, for providing this limited public forum to us all.

    This is an important link to help with a further understanding of the issue.

    Make sure not to delete this message or modify it in any way. This is a nice site you got there and it would be a shame if anything happened to it.

    1. SHG Post author

      I considered replacing your link with a Rick Roll, because there would be no way to prove it wasn’t you. But then I realized it would make you even more cool for your re-election campaign.

  2. Hunting Guy


    So as a result of these social media companies are being used for official government business, I can expect them to honor my FOIA request.

  3. Jacob DiMare

    “the medium can’t claim to be a private company when it kicks miscreants off its site one moment but hosts an electronic town hall the next.”

    What? I used to live in a small town in upstate New York that held town hall meetings in a greasy spoon diner. Did that small business owner forfeit his rights when the local congressman showed up to rap about wedge issues with the blue hairs? What if the small businessman throws out someone who is scaring away other customers while using the heckler’s veto to shout down the congressman?

    1. SHG Post author

      Now, sit down, think really hard, and answer your own questions in an intelligent, rational, principled way that conforms to the requirements of the First Amendment.

  4. John Barleycorn

    Kewl… Just think of all the jobs there will eventually be for people who can’t code when everyone who wants to get on the twit feed of a government official has to submit their question, re-twits, retorts or otherwise via a hand written note on a 3X5 index card and mail it in.

    Sneaky bastards…. Heck,even the Supremes might be able to keep up then. I wonder what the dress code will be for the twit posters and whether or not it will depend on which “department” they are twit-ing for.

      1. John Barleycorn

        Outstanding! This information is encouraging and will certainly add to the legitimacy of current and future Supremes entering the land of the Twits. Which I predict will be shortly after the next Atlantic, Harpers, or New Yorker profile, including a few dozen quotes from the week long tag-along-interview, of one of the justices comes out and falls flat.

        As to the bureaucrats who will be sorting the 3×5 index cards and transferring the information on them to the Government Twit Platform I trust their union will also find this information useful as well as liberating. Just the sort of option that should dramatically improve the applicant pool as well as increase the starting pay scale due to the inherent risks, dexterity, and concentration that will be involved in this important position.

        P.S. Do you think our esteemed host Twits and reads the other Twitters on his computer or on his phone more predominately? If it is the latter I wonder how many more followers he would get if changed his Twit Mug Shot/Handel Photo and embraced the naked Twit with a photo of him shirtless in his convertible Healey with one arm, elbow resting on the door, fingers firing off a Twit while his other hand is on the wheel? And should he be grinning from ear to ear or looking white-knuckled and in shock?

        I am thinking white-knuckled and in shock, will result in more Twit followers but I am not sure if the photo should include a pedestrian or a goat tumbling end over end having just cleared the smashed windshield or not?

        Perhaps a pony or unicorn having just cleared the smashed windshield with him grinning from ear to ear?

        1. Guitardave

          JB!!!!…..Just a little GIF….no smashed windshield… carnage…just shirtless, with the phone in one hand, a…(white knuckled and shock, check)…. death grip on the wheel with the other, and the ball sac of the leaping unicorn ( yes Virginia, Unicorns come in two, and only two genders…get over it!) just clearing any damaging or personally degrading contact as it flies gracefully over the speeding Healy…i predict 30,000 new followers!…what FUN!
          PS: It scares me that I’m starting to ‘get’ you….:-)

  5. Julia

    “How can someone be thrown out of the village square for telling a fired writer to “learn to code,” when the same expulsion prevents him from telling it to the president?”

    It’s even better. How can Twitter suspend someone for violating its rules while it repeatedly disregards Trump violating the same rules making an exception for a “government account”?

    Can Twitter be recognized as a de facto government contractor?

  6. Pingback: Orange bad man and the Twitter village square - Jake DiMare

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