Earlier this week, a federal appeals court ruled that President Donald Trump could not block his critics on Twitter. More specifically, the court ruled that Trump's Twitter account is a "public forum" where citizens have the right to enter their comments in the same way that they could attend a town hall. This statement could determine how all government officials use social media – from the US president to local garbage collectors.
The Knight First Amendment Institute at Columbia University challenged Trump in 2017, arguing that Trump had violated the rights of the first amendment of seven Twitter users – all of whom were blocked after tweeting criticism of the @ realDonaldTrump account. The Knight Institute argued that Trump prevented these users from participating in a public discussion because these discussions took place in responses to Trump tweets.
A lower court ruled in favor of the Knight Institute last year. The Second Circuit Court of Appeals agreed Tuesday, saying that it was illegal for "a public official who uses a social media account for all kinds of official purposes to exclude people from otherwise open online dialogue because they have expressed views that the official disagrees with."
As Cornell Law School professor James Grimmelmann says, "Of course Trump can say what he wants" on Twitter. And he can choose to improve specific messages by retweeting them. But he can't make it harder for certain people to participate in the conversation about those tweets, which is exactly what is blocking someone on Twitter.
Grimmelmann says the facts in this case were "particularly grim," as Trump clearly uses Twitter as an official communication tool for the White House. But it raises questions for other politicians and government agencies. Rep. Alexandria Ocasio-Cortez was recently charged with blocking Republican primary candidate Joseph Saladino and the courts will have to decide whether she has created the same type of forum with her presence on social media. "[Trump] made this a very simple case. It's a more difficult question if a politician uses it to get in touch with the public, but claims not to use it for official affairs," he says.
Overall, "what this case brings up is a fairly strong separation of official and personal capacities," says Grimmelmann. If you are a politician who maintains a campaign or personal account, the verdict may not matter. Otherwise, "it more or less tells you that your presence on social media must be one-way traffic: you can respond to communicate with people, but you will not be able to use anything more than dampening incoming content."
Kendra Albert, a teacher at Harvard Law School's Cyberlaw Clinic, believes the decision of the Second Circuit is unnecessarily ambiguous. The Trump administration has argued that its account is a government speech or a speech that the government makes on its own behalf, which is not regulated by the First Amendment. Albert argues that the original statement clearly separated the content of the "government speech" from the interactive forum in the responses. "The lower court ruling really does a good job explaining why it is important that people are blocked, even if they can just log out of Twitter and see the president's tweets differently," said Albert, "and that is because there is a kind of discursive space that takes place under the tweet. "
The new statement refers to the entire Trump account as a public forum, and then draws finer lines between tweets that are government speech and independent tweets from other users. "I think it's still a case that prosecutors can cite to show that government officials can't just block people from blocking people from their official Facebook or Twitter pages," says Albert. "But it is certainly less clear than the opinion of the court and it means they have to spend more time explaining why things are not a government speech."
Government accounts must block some users if they want to keep their digital spaces usable. The ruling does not prevent this, but administrators will have to avoid doing it in a way that is politically biased, which could lead to some difficult decisions. What if, says Grimmelmann, a municipal waste authority accepts responses on a Facebook page about waste collection? "Does this case mean that they cannot remove comments yelling at them that recycling is a communist plot?", He asks.
The same difficult decisions can be accompanied by intimidation. "It can be difficult to banish or block someone because they generally bother you unless you have a persistent harassment pattern," says Albert. The best solution, they argue, would be for civil servants to establish clear rules of moderation that can be enforced across the board, such as a town hall that could dispel people who actually disrupt a meeting, even when engaged in political speeches.
There is tension between the protection of initial changes and rules for moderating social media. White supremacist rhetoric, for example, is protected by US law, but it is forbidden as a hate speech on Facebook. Grimmelmann says that this speech can still be deleted as long as it is clearly based on Facebook's moderation guidelines, not the government's.
Crucial is that this case does not discuss or Twitter self is a public forum or determine how Twitter can moderate users. It only rules the actions that individual government-related accounts can perform.
It is also not the last word about social media accounts from the government. The Fourth Circuit Court of Appeals ruled in January those county officials could not keep critics from their Facebook pages. But another court has retained that governor of Kentucky can block constituents on Facebook and Twitter. "I think different circuits coincide around some sort of collective test – or at least one way to handle things like Twitter and Facebook and maybe Instagram," says Albert, "it will become increasingly consistent over time."