Yesterday, the 2nd Circuit Court of Appeals ruled that the President cannot block individuals from his Twitter feed. In a case brought by the Knight First Amendment Institute at Columbia University and seven individual plaintiffs, Donald Trump’s ability to block certain individuals from accessing his otherwise public posts was ruled unconstitutional.
The opinion, which can be read here: Trump-Twitter-ca2-20190709 ruled that the presidents “tweets” are considered government speech and that his efforts to block certain critics from following him on Twitter is discriminatory and violates the First Amendment.
Facebook’s policy block any person required to register as a sex offender from accessing their platform. Most politicians have social media account and the most widely used is Facebook. Many political and news outlets require a Facebook account to post a comment to a story. In fact, courts have recognized that social media is the new town square. Traditionally a public forum was a place such as a park,street, or sidewalk where citizens have assembled, discussed public questions, and facilitated communication.Within these areas, the Supreme Court has held, government can prohibit activity only when necessary to serve a compelling state interest that is narrowly tailored (see: Perry Education Assoc. v. Perry Local Educators, 460 U.S. 37, 45 (1983))
So if social media is the new forum for politicians and news outlets to speak to the public and facilitate communication, how is it that Facebook can ban a segment of the population from accessing its public forum?
Although the 2nd Circuit case expressly states, “We do not consider or decide whether an elected official violates the Constitution by excluding persons from a wholly private social media account. Nor do we consider or decide whether private social media companies are bound by the First Amendment when policing their platforms“, is it time for those who are banned to take on the companies that ban them?