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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?

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83

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.)

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  • 4
    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 5 at 23:39
  • 63
    @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 5 at 23:44
  • 13
    @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. Apr 5 at 23:45
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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. Apr 6 at 0:45
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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. Apr 6 at 18:18
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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.

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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 6 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 6 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? Apr 6 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 6 at 22:44
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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. Apr 8 at 16:58
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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.

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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 8 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 8 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 8 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 8 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 8 at 19:43

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