How First Amendment Battles Are Shaping Up in the Social Media Age

Twitter_Silhouette - Getty - H 2017
Getty Images

President Donald Trump is no stranger to litigation, but he's currently fighting one legal battle that could significantly shape how government officials use social media.

The Knight First Amendment Institute at Columbia University sued him in July for blocking seven Twitter users who say their constitutional right to petition the government is being violated. Trump's Department of Justice lawyers responded in an Aug. 11 letter to the court, arguing the suit is an unprecedented attempt to police his social media use.

"It would send the First Amendment deep into uncharted waters to hold that a president's choices about whom to follow, and whom to block, on Twitter — a privately run website that, as a central feature of its social-media platform, enables all users to block particular individuals from viewing posts — violate the Constitution," states the DOJ response.

But, the thing is, the First Amendment is already in uncharted waters when it comes to social media, as the evolution of technology exponentially outpaces the laws that seek to govern its use. And — in an era in which the president of the United States turns to Twitter to share his positions on national issues — important questions are being raised about who can control the flow of information on social media and how, exactly, the freedoms of speech and petition come into play.

Whether it's Trump's tweets, the Google diversity manifesto writer's controversial firing or Robert Kardashian's recent alleged revenge porn rampage, University of Miami law professor Mary Anne Franks says talking about hot-button cultural issues forces the public to scrutinize what actually constitutes a First Amendment violation.

"It's become a buzzword, a fashionable claim to make," she says. "Milo [Yiannopoulos] was arguing that his First Amendment right was being violated when Twitter took away his blue check mark."

Yiannopolous, an author and former Breitbart editor, was later banned from the social media site altogether after the company determined he violated policies that "prohibit inciting or engaging in the targeted abuse or harassment of others" in connection with a barrage of racist and sexist tweets sent by his followers to Saturday Night Live actress Leslie Jones. Franks says even that has no implication on his constitutional rights.

"Twitter doesn't owe anybody anything," she says. "It's a free service that's completely voluntarily and has nothing to do with the government."

Trump, however, holds the government's highest office. So his social media use raises an entirely different question, specifically whether his discussion of policy online makes the otherwise private site a public forum.

"Twitter enables ordinary citizens to speak directly to public officials and to listen to and debate others about public issues, in much the same way they could if they were gathered on a sidewalk or in a public park, or at a city council meeting or town hall," writes Jameel Jaffer, attorney for the Twitter users blocked by Trump. "The President’s advisers have stated that tweets from @realDonaldTrump are 'official statements,' and they have been treated as such by politicians, world leaders, the National Archive and Records Administration, and federal courts."

The U.S. Supreme Court recently acknowledged the importance of social media in finding that a North Carolina law barring registered sex offenders like plaintiff Lester Packingham from the sites is unconstitutional. "While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear," wrote Justice Anthony Kennedy in the June 19 opinion. "It is cyberspace — the 'vast democratic forums of the Internet' in general, and social media in particular."

During oral arguments in that case Justice Elena Kagan asked whether being banned from social media kept Packingham from having access to the president's Twitter account. "All 50 governors, all 100 senators, every member of the House has a Twitter account," said Kagan. "So this has become a crucial — crucially important channel of political communication."

To complicate matters, Trump has two Twitter accounts, the official @POTUS handle and @realDonaldTrump. It's the latter, which has 18 million more followers, that's at issue here. Former federal prosecutor and current Greenberg Glusker litigator Priya Sopori says there's a fine line between representing yourself and your employer on the internet, and the savvy use of social media demands good judgment.

"There's probably no more effective way to reach as many people at one time as social media," she says. "So it makes sense that people who seek to address mass numbers, and politicians and entertainers often both fit that bill, would use social media to that extent."

Litigator Michael Weinsten anticipates that the case law at the intersection of the First Amendment and the internet will become much more defined in the near future. "I think you will see more and more legislation in the coming years attempting to regulate what you can and cannot say online," he says. "And as legislation comes about you're going to see the First Amendment people coming forward and challenging that legislation."

There will also likely be a distinction created between how private citizens and public figures are treated, similar to defamation's actual malice standard, Sopori adds. "There's precedent for treating public figures different than private figures under the law," she says. So any evolution in the law could mean elected officials are held to different standards.

As for the pending Trump matter, Weinsten says the case is prime for the Supreme Court. "I think there is a fair argument that he is using Twitter as a public forum," he says. "If Trump were to have a policy on his Twitter to block people in a manner that is content neutral that would be one thing, but if it's because of their political views that's a problem."

So what does Trump think of all this? Well, among his more than 35,000 tweets, there's at least one relevant comment. In a July 1 post, he wrote, "My use of social media is not Presidential – it’s MODERN DAY PRESIDENTIAL."