The First Amendment is causing quite a stir in social media as a result of two headlines this week: (1) A Federal Judge said that because the President’s Twitter feed is a public forum, he cannot ban any followers due to their speech and (2) The NFL stated that it will issues fines to teams whose players kneel or do not show respect for the National Anthem. So there has been lots of buzz on Twitter, Facebook and other social media platforms about reconciling these two headlines. Well, actually its quite easy.
The First Amendment reads:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Over the centuries, “Congress shall make no laws . . .” has been understood to ban any branch of government or any State action from stifling speech in public forums. In Knight First Amendment Institute at Columbia University , et al v. Donald J. Trump, et al Judge Naomi Buchwald of the Southern District of NY held that while Twitter is a platform owned by private entities,
the President and Scavino (his social media director) nonetheless exercise control over various aspects of the @realDonaldTrump account: they control the content of the tweets that are sent from
the account and they hold the ability to prevent, through blocking,other Twitter users, including the individual plaintiffs here, from accessing the @realDonaldTrump timeline (while logged into
the blocked account) and from participating in the interactive space associated with the tweets sent by the @realDonaldTrump account. Though Twitter also maintains control over the @realDonaldTrump account (and all other Twitter accounts), we nonetheless conclude that the extent to which the President and Scavino can, and do, exercise control over aspects of the @realDonaldTrump account are sufficient to establish the
government-control element as to the content of the tweets sent by the @realDonaldTrump account, the timeline compiling those tweets, and the interactive space associated with each of those tweets.
The court also noted that the account is registered to Donald J. Trump, the 45th President of the United States and that Trump often makes official announcements for the first time via his Twitter account. The court also rejected the President’s argument that because any Twitter user can block people on their Twitter feed, “blocking” is not a State action or done under “color of State law.” The court held that the President’s feed and the ability to reply to that feed are in fact a public space when used by a government official in an official capacity and that therefore it essentially becomes government property for First Amendment analysis. The court held that the space, while not a pure public forum (like a street corner or a public park for example), became a “designated public forum” through his use of the account. The court noted that Scavino described the Twitter account as as a means through which the President “communicates directly with you, the American people!” (exclamation point in the original).
The court then had to look at whether the blocking was “viewpoint discrimination.” That was easy since “The record establishes that “[s]hortly after the Individual Plaintiffs posted the tweets . . .
in which they criticized the President or his policies, the President blocked each of the Individual Plaintiffs,and defendants do “not contest Plaintiffs’ allegation that the Individual Plaintiffs were blocked from the President’s Twitter account because the Individual Plaintiffs posted tweets that criticized the President or his policies.”
The final issue was whether the court could issue an injunction against a sitting President to force him to stop blocking critics. The court said that it could easily enjoin Scavino. But instead it chose not to issue any injunction: Instead it issued a declaratory judgment that blocking Twitter comments to the President’s feed based on their viewpoints was unconstitutional. It then engaged in a huuuuge leap of faith that may evidence that Judge Buchwald does not follow the President on Twitter:
“It is emphatically the province and duty of the judicial department to say what the law is,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803), and we have held that the President’s blocking of the individual plaintiffs is unconstitutional under the First Amendment. Because no government official is above the law and because all government officials are presumed to follow the law once the judiciary has said what the law is, we must assume that the President and Scavino will remedy the blocking we have held to be unconstitutional.”
Well let’s see if her faith is rewarded. Judge Buchwlad’s decision can be found HERE
As to the NFL, it announced today that it will fine teams whose players kneel or otherwise don’t show “respect” for the National Anthem. Players are free to stay in the locker room during the Anthem as a protest but if they come out onto the field they must stand while the Anthem is played. Teams will be allowed to pass the fines down to the offending players if they see fit. So as the Trump Twitter decision teaches us, the NFL is not a public forum, it is a private entity whose member teams employ the players. Because they are private employers, there is no State action and therefore no First Amendment violation. Is it a smart business decision? Will the Player’s Union (which was not consulted prior to the decision) take action by filing grievances or even possibly striking? Will players take the knee and pay the fine anyway? We’ll have to wait and see how this all plays out. But unlike the plaintiffs in the Knight First case they will not be able to address their grievances in court on a First Amendment basis.
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