Posted on June 6, 2018

Are You Sure You Want a Right to Trump’s Twitter Account?

Noah Feldman, New York Times, June 5, 2018

As more and more of our speech takes place on social media, courts are beginning to experiment with expanding the First Amendment, proposing that its protection of political speech applies even in privately controlled virtual spaces. The most recent example is a federal court in New York that held last month that President Trump cannot block anyone from following his Twitter account because it functions as a public forum. {snip}


The problem, however, is that applying the First Amendment to social media will make it harder or even impossible for the platforms to limit fake news, online harassment and hate speech — precisely the serious social ills that the world is calling on them to address.

At present, free speech law ensures the platforms’ own freedom of expression and association. That gives them the constitutional right to set their own terms of service and community standards, which they can use to address everything from spreading deliberate falsehoods to harassing people based on their sex, race or religion.

But if courts determine that the Constitution trumps the private decisions of the platforms with respect to regulating speech, the platforms will no longer set their own standards. Instead courts will set them, using the only guidance they have: the body of free-speech law developed by the Supreme Court over the last half-century. {snip} (Disclosure: I have advised Facebook on issues connected to governance and free expression.)

There is thus a fundamental trade-off at stake. If, on the one hand, courts treat social media platforms as private actors {snip}, then we must accept that only a combination of moral, public and market pressure can help ensure that the platforms take appropriate measures to protect truth and civility. This is a system of private, voluntary regulation.

If, on the other hand, courts take over regulating social media, that essentially guarantees the same free-for-all on social media that exists on the internet as a whole — not to mention in real life. In that scenario, we should be prepared to accept the inevitability of fake news, online harassment, expressions of bigotry and all the rest. This would be a system of total free speech.


In February, the white supremacist Jared Taylor and his New Century Foundation filed a related lawsuit in California against Twitter, which has blocked accounts belonging to Mr. Taylor and the supremacist group American Renaissance. The suit argues that the California courts should declare all of Twitter a public forum. If the court were to agree, then Twitter would be bound by California’s free-speech guarantee to allow all speakers access.

The federal court’s Twitter decision doesn’t go this far — it found only that President Trump’s Twitter account was a public forum — but it is a step in the direction urged by Mr. Taylor. If President Trump was able to create a public forum on Twitter without Twitter’s agreement to such a legal state of affairs, then it becomes more plausible to think that Twitter itself is a public space, regardless of whether it intends to be one.

Social media should not become a pure free-speech zone. The speech-based online abuses of our age need to be addressed not by the government but by the platforms on which they occur. {snip}

[Editor’s Note: Noah Feldman is a law professor who specializes in constitutional law.]