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For reference, this recent NPR article contains all of the information that inspired this question.

The lawsuits referenced in the above article center on then-President Trump blocking individual users on Twitter from interacting with or seeing his tweets. Lower courts apparently ruled that Trump's twitter feed is essentially a public forum, and therefore, blocking users was unconstitutional because it amounted to viewpoint discrimination. There haven't been (as far as I know) any lawsuits against Twitter for their banning of Trump while he was President. Clearly, any such lawsuits would likely be ruled moot now, but it stands to reason that if Trump isn't allowed to prevent people from interacting with him on social media, then Twitter shouldn't be allowed to prevent people from interacting with him either.

One possible distinction here is that Twitter wasn't practicing viewpoint discrimination since they effectively blocked everyone from interacting with President Trump without regard to viewpoint. However, if the President's presence turns a social media account into a public forum, then preventing the president from having an account seems to be a form of viewpoint discrimination in itself. Really, the whole thing is very strange since it seems to suggest that Twitter (a private company) has control over whether or not certain public fora are allowed to exist. To me, that sounds like those fora were never really "public" at all (meaning Trump should be able to block people from his personal account), or if they were, then Trump's viewpoint was being discriminated against and Twitter has an obligation as the purveyor of this public forum to protect his rights.

Why are Trump blocking individuals on Twitter and Twitter effectively blocking everyone for Trump by banning him treated differently under the law?

Geoffrey
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3 Answers3

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Trump was an officer of the government, and Twitter wasn't. The First Amendment forbids the government and its agents from viewpoint discrimination, but private companies are not bound by it and can discriminate as much as they please.

(There was a question as to whether such discrimination might affect whether the company enjoys a shield from liability under 47 USC 230, but even so they have the right to block and censor as they wish if they are willing to risk that liability.)

Nate Eldredge
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    To clear up a couple of points: Under this explanation, Twitter could have (if they were so inclined) ban people that they perceived as e.g. being rude to Trump? So long as the action wasn't taken directly by Trump or another governmental actor, it would have been fine? Also, out of curiosity, are there any other examples that you can reference in which the management of a public forum is entrusted to a private entity which also has the power to censor speech in that forum? – Geoffrey Apr 05 '21 at 23:39
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    @Geoffrey Twitter can ban anyone for any reason. But Twitter is not a public forum. Trump made his account a public forum. Think of it as... Twitter is a hotel. They rent a meeting room to Trump. Trump holds public speeches there. As he uses that room as a public speech forum, he may not throw out peple. Then, Twitter does no longer lease the room to Trump and throws him out. – Trish Apr 05 '21 at 23:44
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    @Geoffrey: (1) Yes, absolutely they could, and I think you'll find there are many other platforms on the Internet that do exactly that. (2) For instance, consider a sports stadium. The stadium owners can make a rule that all signs displayed within the stadium must say nice things about the home team, and eject any fan who disobeys. But if the government made such a rule, it would be unconstitutional. – Nate Eldredge Apr 05 '21 at 23:45
  • Let me make sure I understand: Most public fora are in public spaces administered by the government. This public forum (not Twitter but Trump's Twitter specifically) is a public forum in a private space administered by a company. As a public forum, government officials obviously cannot prevent people from using it, but because it is administered privately, the obligations that the government would normally have as the administrators of the forum to protect expression do not apply to the actually administrators. So, there are two sorts of public fora: the normal kind and a privatized kind. – Geoffrey Apr 06 '21 at 00:24
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    @Geoffrey: If you like. You can see for instance the ruling in Knight Institute v. Trump where the court discussed the precedent for the idea that a forum not owned by the government may still be "public" for the purposes of a First Amendment forum analysis, if it is "controlled" by the government. See from page 41. Note that whether or not it's a "public forum" is completely irrelevant to what Twitter may or may not do. – Nate Eldredge Apr 06 '21 at 00:45
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    @Trish Could you elaborate on how Twitter is more like a hotel than it is like a privately owned plaza or atrium, which under Pruneyard Shopping Center must accommodate free speech even though it is private property? – Lee C. Apr 06 '21 at 13:48
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    @LeeC. The free speech rights of the respondents in Pruneyard were derived from the California constitution, not the US constitution. – Sneftel Apr 06 '21 at 15:41
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    @LeeC. they can lock out people for arbitrary reasons. Because the people agreed to that in the TOS – Trish Apr 06 '21 at 15:42
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    ISP guy here. That parenthetical doesn't work. You lose Safe Harbor when you moderate content so much that staff surely saw the offending content. Sandboxing, moderating or banning users is the very opposite of that: muzzling problem infringers is a powerful tool to let you keep everyone else unmoderated. User bans reduce the need for moderation, so it actually helps your Safe Harbor protection. – Harper - Reinstate Monica Apr 06 '21 at 18:18
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    @Harper: That is contrary to the plain wording of section 230, which says nothing about the ISP's actual or constructive knowledge of illegal content. Such a standard does apply in, for example, 17 USC 512, but only because that statute contains explicit wording to that effect. 47 USC 230 contains no such carve-out (aside from the FOSTA amendment), and (c)(1) is clearly worded as an unconditional, blanket grant of immunity. – Kevin Apr 06 '21 at 18:52
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    @Harper-ReinstateMonica: Well, the point of the parenthetical was that Section 230 is irrelevant here. I added it in hopes of forestalling debates like this. – Nate Eldredge Apr 06 '21 at 18:53
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    Whoops, sorry! I just meant to say that nobody would have any luck trying to claim 230 says that banning users is "moderating", since it's actually the exact opposite of moderating (in the scope of 230's interest in that). – Harper - Reinstate Monica Apr 06 '21 at 19:10
  • @Harper-ReinstateMonica you only lose 230 protections with respect to the content which you author. I don't believe there is a case of 230 protections being lost for the entire site at-large because of overly-restrictive moderation. EFF has a list of relevant cases. – grovkin Apr 06 '21 at 21:13
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    @grovkin Yes, if you moderate your site hard enough, you become like the traditional printer who chooses to print illegal copies of Harry Potter and ought to know what's being printed. An example of "hard enough" would be if ALL posts needed to be approved by staff prior to them appearing, which was a common mod method before DMCA, and is the traditional Internet meaning of "moderated". If J random user started posting Harry Potter chapter by chapter, and staff approved that, no Safe Harbor. – Harper - Reinstate Monica Apr 06 '21 at 22:12
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    @Harper-ReinstateMonica no matter how "hard" you moderate your site, you will not lose the de jure 230 protection, for the site at large. The fact that you may lose de facto 230 protection, for the site at large, is besides the point. What's being discussed is that you don't lose 230 protection, as a punitive measure, for the bait-n-switch of attracting an audience under the guise of creating a platform; all the while treating the content created by that audience as your own, by the virtue of applying arbitrary editorial decisions to it. "Arbitrary" here means not always comporting to TOS. – grovkin Apr 07 '21 at 09:27
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    @Geoffrey In response to you asking about public forums managed by private entities that can censor speech, look no further than the difference between newspapers and bookstores. The distinction between the two is the reason why the infamous Section 230 exists today. https://arstechnica.com/tech-policy/2020/06/section-230-the-internet-law-politicians-love-to-hate-explained/ – MiniRagnarok Apr 07 '21 at 13:38
  • Comments are not for extended discussion; this conversation has been moved to chat. – feetwet Apr 07 '21 at 14:44
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An analogy.

I own a meeting hall. I rent it out to the US Forest Service, who frequently has public hearings on matters of policy e.g. whether to open a sector for logging or recreation, seal up abandoned mines or leave them for explorers, that kind of thing. Some of these can get pretty loud.

The Forest Service decides to let all the loggers into the public meetings... but refuses to let in environmentalists. Can they do that?

I arbitrarily decide I don't want to lease my property to the Forest Service anymore. Can I do that?

Separately:

The Forest Service can't discriminate like that because they're operating a public forum and it's a First Amendment issue.

Whereas I have owe no duty whatsoever to provide the Forest Service a venue. They can't even claim I "have them over a barrel" since the Forest Service still owns plenty of properties of their own. Likewise the US Government hardly needs twitter.com; it has its own websites... heck, it controls not only the entire .GOV top level domain, but .MIL as well.

Harper - Reinstate Monica
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    This is quite clear. But under this reasoning, I have a follow-up: Most public servants are able to act in their own personal capacity in public at least sometimes (presumably this extends to some degree to the President). Why is Trump's personal account (which existed long before his presidency) treated in the same manner that one would expect the "@POTUS" account to be treated? They seem more than superficially different to me, and while I don't know of any specific examples, I'm sure I've heard of members of Congress blocking trolls on Twitter before. – Geoffrey Apr 06 '21 at 20:25
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    The problem with every analogy is that it emphasizes some aspects and ignores all the others. This answer is not an exception to this principle. – grovkin Apr 06 '21 at 21:15
  • What exactly is supposed to be analogous to the "meetings" here? How exactly is a block on Twitter supposed to be analogous to "keeping someone out"? It seems to me far more analogous to ignoring someone. Are we saying that 1A extends to a compulsion for government officials to consider ideas that are presented to them? How exactly is that supposed to be enforced? – Karl Knechtel Apr 06 '21 at 21:46
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    @Geoffrey Trump's personal account is/was treated as a government official's account probably at least in part because his administration had explicitly said that Trump's tweets are/should be considered official statements. – awksp Apr 06 '21 at 22:44
  • " Likewise the US Government hardly needs twitter.com; it has its own websites"... that's like saying the government hardly needs television broadcasters, they have telegraphs. (At the least, it's like saying they could run their own TV network. In reality, no one is going to watch it.) Not the same at all. A very good argument can be made that e.g. Twitter and Facebook are, for practical purposes, public carriers. Also, IMO Trump being POTUS should have little effect on whether banning him is okay or not; he is still a hugely public figure. – Matthew Apr 08 '21 at 12:43
  • @Matthew no it's not. Two different web sites are still two web sites serving web content over the same network. Television and telegraph are completely different communications media of staggeringly different availability. – barbecue Apr 08 '21 at 15:29
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    @barbecue Of course a citizen can type "bestprezever.gov" as easily as "facebook.com". Matthew's argument is that they won't. Matthew is saying websites are not equivalent; the crux is Facebook's power of reach/exposure, which Facebook crafted by their own hands, through sweat, staggering private investment and business risk. Who owns that? is the question. – Harper - Reinstate Monica Apr 08 '21 at 16:58
  • @barbecue, I think you neglected to read my parenthetical . I could serve "web pages" over telegraph (or on printed sheets using USPS); the difference isn't so much the media as (per Harper's comment) the extent of their reach. And that is *exactly* what Twitter has that some government website doesn't. At some point, a private entity can come to have such importance that, for practical purposes, they cease to be private. – Matthew Apr 08 '21 at 17:51
  • Why does it say "Separately/;" in the middle? – Azor Ahai -him- Apr 08 '21 at 17:57
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The main reason for this asymmetry is, as the other answers say, that Twitter is a private company and Trump was a government official. It is a little more subtle, in that Twitter is not a regulated public utility. Various businesses such as gas, water, electricity are deemed to be public utilities which serve the basic needs of the general public, and they have a "duty to serve" (see this, and this older article on the extent of the right of a public utility to refuse service). This may impose a requirement to justify refusing service. My refuse-collecting company cannot arbitrarily refuse to pick up my trash (because they were granted a monopoly on residential trash collection), but they can refuse service for good cause. Twitter is not, at present, such a regulated public utility, so they can arbitrarily refuse service.

user6726
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  • Legally, this is true (for now). Morally, practically speaking, venues like Facebook and Twitter are very much the same as, say, phone companies, and (IMO) ought to be held to the same standards. That is, it should be no more okay for someone to be banned from Twitter than for them to be banned from using phones, or USPS. – Matthew Apr 08 '21 at 12:46
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    Banning someone from using Twitter is NOT like banning them from using phones. It's like banning them from using T-Mobile. As long as there are alternatives, it's less unfair. It's when alternatives are PROHIBITED that it becomes a different level of unfairness. If T-Mobile has a monopoly contract with a specific region that prevents anyone from using other carriers in that region, the person is forced to break the law or else move away to get service, that's an undue burden. If they can just switch to Verizon, it's not as big a problem for them, and therefore not as serious a moral issue. – barbecue Apr 08 '21 at 15:36
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    @Matthew while I don't entirely disagree with your perspective, there's a very real difference between a forced monopoly and a de facto monopoly. Apple has a monopoly on iPhones, but they don't have a monopoly on phones in general. If you passed a law saying Android phones were illegal, Apple's monopoly would suddenly become a much more serious problem. – barbecue Apr 08 '21 at 15:38
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    @barbecue, more like banning them from T-Mobile, or from calling anyone on T-Mobile. If the alternative to T-Mobile was to send a telegraph or write a letter. The problem is, there isn't a viable alternative platform; Twitter is effectively a form of media all its own, on par with Radio or Television. (Not a particular station, but the entire format.) – Matthew Apr 08 '21 at 17:57
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    @Matthew Twitter has a monopoly on sending messages on Twitter. That's no different than Nike having a monopoly on Nike sneakers. It's a brand choice. SOmeone who can't buy Nikes can still get shoes. Someone who can't talk on Twitter can still talk on other social networks, and major celebrities and companies have presences on all of them, so it's really not comparable. – barbecue Apr 08 '21 at 19:43
  • @barbecue, I disagree (and pretty sure I'm not the only one). The difference between Twitter and anything else (even e.g. Facebook) is less like the difference between NBC and ABC, and more like the difference between television and radio. There are definitely no other networks that are as similar to Twitter (not, anyway, without completely disjoint demographics) as, say NBC and ABC, or Nike / Reebok / Adidas. At best, your analogy would be like someone that can buy sandals, but not any kind of athletic shoe. – Matthew Apr 08 '21 at 20:13
  • @Matthew what's the fundamental thing that makes Twitter like Twitter and not like Reddit or Facebook or my own blog? – user253751 Apr 12 '21 at 13:18
  • @user253751, your blog is the digital equivalent of publishing your own newspaper column. Twitter... I don't know what to compare it to; maybe CB radio? The point is, the reach and mechanism for interaction with each of those is quite different. (Reddit and Facebook are maybe less dissimilar from each other. Facebook is maybe more like having a newspaper column in a major paper.) – Matthew Apr 12 '21 at 13:42
  • @Matthew so what is the fundamental thing that makes Twitter different from all the rest? – user253751 Apr 12 '21 at 13:45