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(1) It appears that a Federal court had ruled that Trump's twitter account is a public forum, and thus protected by the first amendment. Is this a correct analysis of the original ruling by the Federal court?

(2) Why was Twitter allowed to delete Trump's account, after the ruling by the Federal court was issued, designating Trump's account as having special status under the First Amendment?

(3) Ironically, shortly before his permanent ban, Trump appealed to the Supreme Court, arguing that his personal twitter account is not a public forum. "The Supreme Court subsequently vacated the decision and remanded the case to the Second Circuit as to render the case moot" What does this mean, in simple English?

(4) "The Knight Institute has responded to this brief by arguing the Second Circuit ruling should remain" So, as of now, is the original ruling by the Federal court still valid? Or is it null and void?

(5) Justice Thomas said in 593 U. S. ____ (2021) "We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms." So why haven't any of the banned public figures filed lawsuits arguing that social media accounts are protected public squares? And why did Trump paradoxically file suit arguing otherwise?

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  • 1) There is a difference between an elected official treating a social media platform as a way to share information and that social media platform allowing people to use it. 2) the ruling was about Trumps actions in relation to his use of Twitter to release official information that the public has a right to know. 3) The decision was vacated because Trump was no longer president and had been banned from twitter. 4) The ruling applied to what users do not what Twitter does. 5) this is a different matter. 6) As a private company free speech doesn't apply to twitter.
    – Joe W
    Commented Mar 6, 2022 at 17:52

2 Answers 2

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Overview

Knight First Amendment Institute v. Trump, No. 1:17-cv-05205 (S.D.N.Y.) was a suit over Trump's blocking various people and other account holders from posting to his Twitter account, @realDonaldTrump.

The district court held that by positing official government actions to twitter, as well as statements of public policy, and inviting people generally to respond, Trump had created a public forum, and could not constitutionally block specific people or groups from that forum based on their political views.

The Second Circuit Court of Appeals upheld this decision. Trump appealed to the US Supreme Court. Before the Court could rule, President Biden was elected and took office. Because Trump had been sued in his specific role as President (and more generally as a government official) Biden was substituted for Trump as Defendant.

Because the @RealDonaldTrump account was no longer controlled as a government official, the Court held that it was no longer a public forum, and remanded it to the Second Circuit as moot. That means the issue was closed, and there is no remaining issue for a court to resolve. US Courts do not decide moot issues.

Specific Questions

(1) It appears that a Federal court had ruled that Trump's twitter account is a public forum, and thus protected by the first amendment. Is this a correct analysis of the original ruling by the Federal court?

Almost but not quite. More specifically, the district court held that that part of the President's Twitter account used for responding to the President's tweets constituted a public forum. The rest of the account was not a public forum.

(2) Why was Twitter allowed to delete Trump's account, after the ruling by the Federal court was issued, designating Trump's account as having special status under the First Amendment?

Because the "public forum* status limited only what the President, and other public officials could do, not what Twitter or another private actor might do. Moreover, what was prohibited was the act of excluding specific people from responding based on their political views or expressed opinions, while allowing others to respond. Nothing in the ruling would have forbidden Trump from deleting the account completely, or from prohibiting anyone to respond. It was the selective blocking by Trump, then a government official that was held to be unlawful.

"The Supreme Court subsequently vacated the decision and remanded the case to the Second Circuit as to render the case moot" What does this mean, in simple English?

It means that the Supreme Court held that there was no longer a live controversy for a court to decide, and sent the case back to the Second Circuit (the Court of Appeals that had previously issued a judgement in the case) for it to officially declare the judgement canceled because there was no longer a case to decide (which is what "moot" means in this context).

(4) "The Knight Institute has responded to this brief by arguing the Second Circuit ruling should remain" So, as of now, is the original ruling by the Federal court still valid? Or is it null and void?

The judgement has been, at least technically, voided, and is not binding precedent. But the opinion was and is published, and may be cited as persuasive authority. It is not unlikely that a similar case in future would follow the Second Circuit decision, which upheld the district court.

(5) Justice Thomas said in 593 U. S. ____ (2021) "We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms." So why haven't any of the banned public figures filed lawsuits arguing that social media accounts are protected public squares? And why did Trump paradoxically file suit arguing otherwise?

A person cannot, in any US Federal court, file a lawsuit just to establish an abstract legal point. There must be an actual case with significant rights or interests at stake. This is known as the "case or controversy rule". Until some government action blocks a person from some "digital town square" no one can sue to establish that it is a public forum and that the blocking is unlawful.

Trump's contention that his Twitter account was not a public forum was in no way paradoxical. If the Court had held that it was not a public forum, he would have been free to control it as his private property (subject to those twitter rules that apply to all users) and could have freely blocked whoever he chose, for any reason or none.

District Court Ruling

In the Memorandom and Order in response for a motion for Summery Judgement, Judge Buchwld (of the US District Court) wrote:

We hold that portions of the @realDonaldTrump account -- the “interactive space” where Twitter users may directly engage with the content of the President’s tweets -- are properly analyzed under the “public forum” doctrines set forth by the Supreme Court, that such space is a designated public forum, and that the blocking of the plaintiffs based on their political speech constitutes viewpoint discrimination that violates the First Amendment. In so holding, we reject the defendants’ contentions that the First Amendment does not apply in this case and that the President’s personal First Amendment interests supersede those of plaintiffs.

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Since his inauguration in January 2017, President Trump has used the @realDonaldTrump account as a channel for communicating and interacting with the public about his administration.

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With the assistance of Mr. Scavino in certain instances, President Trump uses @realDonaldTrump, often multiple times a day, to announce, describe, and defend his policies; to promote his Administration’s legislative agenda; to announce official decisions; to engage with foreign political leaders; to publicize state visits; to challenge media organizations whose coverage of his Administration he believes to be unfair; and for other statements, including on occasion statements unrelated to official government business.

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The primary point of dispute between the parties is whether a public official’s blocking of the individual plaintiffs on Twitter implicates a forum for First Amendment purposes. ...

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As a threshold matter, for a space to be susceptible to forum analysis, it must be owned or controlled by the government. See, e.g., Cornelius, 473 U.S. at 801

[A] speaker must seek access to public property or to private property dedicated to public use to evoke First Amendment concerns.

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The Supreme Court has instructed that in determining whether these requirements are satisfied (i.e., whether forum analysis can be appropriately applied), we should identify the putative forum by “focus[ing] on the access sought by the speaker.” Cornelius, 473 U.S. at 801; see Lebron v. Nat’l R.R. Passenger Corp. (Amtrak), 69 F.3d 650, 655 (2d Cir. 1995).

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... in Lehman v. City of Shaker Heights, where the plaintiff sought access to advertising space on the side of city buses, the advertising space and not the buses constituted the putative forum. 418 U.S. 298, 300-01 (1974). Indeed, this exercise in carefully delineating the putative forum based on the access sought is not an academic one.

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Though Twitter is a private (though publicly traded) company that is not government-owned, the President and Scavino nonetheless exercise control over various aspects of the @realDonaldTrump account: they control the content of the tweets that are sent from the account and they hold the ability to prevent, through blocking, other Twitter users, including the individual plaintiffs here, from accessing the @realDonaldTrump timeline (while logged into the blocked account) and from participating in the interactive space associated with the tweets sent by the @realDonaldTrump account, ... the extent to which the President and Scavino can, and do, exercise control over aspects of the @realDonaldTrump account are sufficient to establish the government-control element as to the content of the tweets sent by the @realDonaldTrump account, the timeline compiling those tweets, and the interactive space associated with each of those tweets.

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As the Second Circuit has recently explained,

[b]ecause facilities or locations deemed to be public forums are usually operated by governments, determining that a particular facility or location is a public forum usually suffices to render the challenged action taken there to be state action subject to First Amendment limitations.

Halleck v. Manhattan Cmty. Access Corp., 882 F.3d 300, 306–07 (2d Cir. 2018) (citing Widmar v. Vincent, 454 U.S. 263, 265-68 (1981), and City of Madison, Joint Sch. Dist. No. 8 v. Wisc. Emp’t Relations Comm’n, 429 U.S. 167, 169-76 (1976)).

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Here, the President and Scavino’s present use of the @realDonaldTrump account weighs far more heavily in the analysis than the origin of the account as the creation of private citizen Donald Trump.

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“Regulation of [a designated public forum] is subject to the same limitations as that governing a traditional public forum” -- restriction are permissible “only if they are narrowly drawn to achieve a compelling state interest.” ISKCON, 505 U.S. at 678-79; see also Cornelius, 473 U.S. at 800. Regardless of the specific nature of the forum, however, “[v]iewpoint discrimination . . . is presumed impermissible when directed against speech otherwise within the forum’s limitations.” Rosenberger, 515 U.S. at 830; see also Matal, 137 S. Ct. at 1763 ...

Here, the individual plaintiffs were indisputably blocked as a result of viewpoint discrimination. The record establishes that “[s]hortly after the Individual Plaintiffs posted the tweets . . . in which they criticized the President or his policies, the President blocked each of the Individual Plaintiffs,” Stip. ¶ 53, and defendants do “not contest Plaintiffs’ allegation that the Individual Plaintiffs were blocked from the President’s Twitter account because the Individual Plaintiffs posted tweets that criticized the President or his policies.” Stip. at 1. The continued exclusion of the individual plaintiffs based on viewpoint is, therefore, impermissible under the First Amendment [Emphasis added]

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  • "Until some government action ... no one can sue..."
    – Jagu Land
    Commented Mar 7, 2022 at 5:30
  • "Until some government action ... no one can sue..." What does this mean? Many people have argued that Twitter and Youtube should be regulated as common carriers. But then no one can sue Twitter and Youtube in court and have the Supreme Court declare them as common carriers? Even people banned by these platforms, such as Alex Jones and Trump, cannot sue the platforms in court and argue that these platforms are common carriers?
    – Jagu Land
    Commented Mar 7, 2022 at 5:39
  • If Alex Jones' Youtube ban was ordered by the US government, then Alex Jones can sue and argue that these platforms are common carriers? But if Alex Jones' Youtube ban was a commercial decision made by Youtube, he cannot sue in order to argue that these platforms are common carriers? So whether Twitter and Youtube are to be regulated as common carriers, is entirely a political decision? Only an act of congress, passed by a 60% supermajority in the senate, can turn Twitter and Youtube into common carriers?
    – Jagu Land
    Commented Mar 7, 2022 at 5:39
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(1) It appears that a Federal court had ruled that Trump's twitter account is a public forum, and thus protected by the first amendment. Is this a correct analysis of the original ruling by the Federal court?

"Public forum" is only one element of the decision. This analysis is too simple to describe the court's reasoning. For example, "public forum" might refer to a park where people can go with megaphones and soapboxes to speak their minds.

The critical part is not simply that it was a public forum but that it was a means that Trump used to publish official information in his capacity as an officer of the United States.

(2) Why was Twitter allowed to delete Trump's account, after the ruling by the Federal court was issued, designating Trump's account as having special status under the First Amendment?

Because Twitter is a private corporation with the right to determine how its platform is used. For example, if the mayor of your town likes to announce policy with a megaphone standing on a soapbox, that doesn't mean that the supermarket has to allow him to do it in their parking lot.

"The Supreme Court subsequently vacated the decision and remanded the case to the Second Circuit as to render the case moot" What does this mean, in simple English?

The case depended on Trump being president. Since he was no longer president, there was no further need to consider the case.

And why did Trump paradoxically file suit arguing otherwise?

Trump wanted his Twitter account to be considered private because he was trying to escape a constraint that the first amendment placed on him in his role as president. The court had held that the first amendment prevented Trump from doing something with his account: it prevented him from violating other users' first amendment rights to criticize him.

In the soapbox analogy, he's not allowed to keep certain people from shouting at him in the supermarket's parking lot because he's president (or rather was at the time), and the first amendment guarantees people the right to shout at him in the supermarket's parking lot, even though it doesn't guarantee them the right to shout at him in the Mar-a-Lago parking lot.

Trump was not trying to obtain first amendment protection for himself but to escape restrictions imposed upon him by the first amendment. Had the courts found that Trump was using his Twitter account for private communication, then others would not have had a first amendment right of access to the account, and Trump would have been able to ban them.

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