So reading through
this decision I found the following interesting:
First, to potentially qualify as a forum, the space in question must be owned or controlled by the government.
Let's see how the court decides this. Last I checked Twitter Inc. was a private company. It produces a product "twitter.com" that is offered to the public at large. Twitter can, for any reason or no reason at all, ban any user from
it's platform. And it has done so. Furthermore, Twitter acts to "verify" it's users and has gone so far as to only allow speech/content that it approves of on the platform. Recently a disgruntled employee took @realdonaldtrump offline. It seems clear to the average person that Twitter, including the @realdonaldtrump account is
not owned by the government since both the platform and the account can be deleted without any prior notification or approval of the government. Furthermore, while the government is allowed the "exclusive" use of the @realdonaldtrump account, it must do so under the rules set by twitter. So if anything it's control of the account is limited and definitely non-exclusive.
The court says:
This requirement of governmental control, rather than complete governmental ownership, is not only consistent with forum analysis’s focus on “the extent to which the Government can control access” to the space and whether that control comports with the First Amendment, Cornelius, 473 U.S. at 800, but also better reflects that a space can be “a forum more in a metaphysical than in a spatial or geographic sense,” Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 830 (1995), and may “lack[] a physical situs,” Cornelius, 473 U.S. at 801, in which case traditional conceptions of “ownership” may fit less well.
So the court takes the or split from the first quote and bends ownership to further it's argument.
Here, the government-control prong of the analysis is met. Though Twitter is a private (though publicly traded) company that is not government-owned, the President and Scavino 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, Stip. ¶¶ 12, 28-32, 39, 54. 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.
Having determined that the govt. has control over Trump's twitter account the court moved to the First Amendment issue:
“[a] person’s right to speak is not infringed when government simply ignores that person while listening to others,” or when the government “amplifies” the voice of one speaker over those of others. Minn. State Bd., 465 U.S. at 288. Nonetheless, when the government goes beyond merely amplifying certain speakers’ voices and not engaging with others, and actively restricts “the right of an individual to speak freely [and] to advocate ideas,” it treads into territory proscribed by the First Amendment. Id. at 286 (quoting Smith, 441 U.S. at 464).
So the heart of the matter is whether the act of blocking a specific account is "actively restricting the right of an individual to speak freely [and] advocate ideas. I don't see how the block function does that. The plaintiffs in this case could still see Trump's tweets. They could still see responses. They could still "@" Trump until their hearts were content. Nothing that Trump did stopped the plaintiffs from speaking freely and advocating ideas. What did the court think? The court decided to look at the different options available to Trump. Mute or Block.
The elimination of the blocked user’s ability to reply directly is more than the blocking user merely ignoring the blocked user; it is the blocking user limiting the blocked user’s right to speak in a discrete, measurable way.
Muting equally vindicates the President’s right to ignore certain speakers and to selectively amplify the voices of certain others but -- unlike blocking -- does so without restricting the right of the ignored to speak.
I don't see how the right of the plaintiff to speak was restricted. Again. They could "@" Trump all day long. Blocking doesn't restrict what a user can type into their tweet. Blocking prevents that tweet from reaching the person or entity that is '@-ed". What the blocked user cannot do is read the material
originating from the blocked account without going through extra steps. Does the plaintiff have the right to unfettered access to Trump's writings?
a reply is visible to others, Stip. ¶ 22, and may itself be replied to by other users, Stip. ¶¶ 57-58. The audience for a reply extends more broadly than the sender of the tweet being replied to, and blocking restricts the ability of a blocked user to speak to that audience. While the right to speak and the right to be heard may be functionally identical if the speech is directed at only one listener, they are not when there is more than one.
It may be the case that a reply reaches persons other than the original speaker. But the act of blocking does not prevent the plaintiff from speaking to those other persons. Since the plaintiff admits that they can see @realdonaldtrump's tweets by other means (logging out and secondary accounts), it is clear that they are able to see who is replying to said tweets and may respond to those from whatever account they choose. Again the question I have is whether having total unfettered access to Trump's writings a right.
All that said, the following has wide implications:
That i~teractive space is susceptible to analysis under the Supreme Court's forum doctrines, and is properly characterized as a designated public forum. The viewpoint-based exclusion of the individual plaintiffs from that designated public forum 1s proscribed by the First Amendment and cannot be justified by the President's personal First Amendment interests.
This will not only apply to POTUS. Assuming this is upheld on appeal, any person holding public office (elected or otherwise) who has either a designated social media account or a personal social media account where they engage in speech reasonably seen as a part of their public duties would be unable to block any account for any reason short of criminal behavior (stalking, threats, etc.).
One point here though. I've seen people say that this decision means that the twitter platform itself is a public space. This decision doesn't make such a claim. It is claiming that the accounts created or run by agents of the government and thereby
controlled by the government are public spaces, if made available to the public (a private page/account may not be so construed).
