Trump’s Twitter Blocking Court ‘Loss’

One theme dominates the entirety of Trump’s persona, namely, he is “antifragile.” Much of what would rattle or weaken an ordinary politician makes him stronger. His beliefs, prejudices, vices, and virtues are well known to critics and fans alike. And his critics, unable to adjust to this reality, keep attacking him in ways that demonstrate their own extremism, hidden agendas, and disrespect for the American people.

The latest example is a federal court decision on Wednesday preventing Trump from blocking his followers on Twitter. While his critics are now cheering, it will prove to be a Pyrrhic victory if Twitter and other social media platforms can no longer hide the anger and dissident views of Middle America.

Trump is the Twitter President
Twitter is a remarkably open platform. Everyone from the famous to the anonymous can have an account. Ordinary people sometimes have tens of thousands of followers because they work hard at building followers, say interesting things, or otherwise have figured out the game.

Like talk radio—and the quickly-disappearing newspaper comments section—when offered a platform, normal Americans frequently devastate liberal conventional wisdom with logic, evidence, or outright contempt. Twitter and Facebook amplify the voices and concerns of ordinary people by enabling them to criticize the supposed arbiters of opinion. This process undermines the power and pretension of the liberal ruling class. We saw hints of this turnabout during the 2004 “Memogate” episode, where a highly dispersed crowd of bloggers definitively exposed a fake memo that supposedly showed a scandal during George W. Bush’s National Guard service, destroying CBS News anchor Dan Rather’s reputation in the process.

Twitter, with its no-holds-barred and pithy style, strongly favors Trump. He is a master of the zinger, the putdown, and the comeback. Remember “Rocket Man” and his taunting of disgraced FBI assistant director Andrew McCabe? Trump, a significant media personality prior to his presidential run, has been dominating the platform for years.

Of course, even with all the fun and unruliness, commenters can become obnoxious, even by the low standards of the Twitterverse. They may be posting pornography, death threats, or engaging in illegal activity. Thus, there are times to block certain followers. These “blocks” are somewhat limited in effect, though. Twitter only prevents the blocked from seeing a “feed”; they are still free to interact with friends, strangers, and anyone else who doesn’t block them.

Trump now has to follow different rules. In Knight First Amendment Institute et al. v. Trump, a federal district court declared that Trump cannot block followers like everyone else because he is, in effect, the government, making his Twitter feed a type of public forum.

The reasons activists want to interact with Trump on Twitter are obvious. Trump has 52.5 million followers. Some of his most acerbic critics have been propelled to fame simply by engaging with his tweets. The president sees no reason to help those who want to hurt him. After all, some have tried to impeach him, when they’re not threatening to assassinate him.

The downside of this ruling for Trump is minimal; even more of his haters will be able to pollute his Twitter feed with comments. But this often backfires, because frequently criticism confirms his followers’ worst fears about the Left and the NeverTrump Right. While a few more people may make themselves internet famous for 15 seconds, a barrage of Trump-hate won’t move the dial much, because such content can be found every day on “mainstream” platforms like CNN. Trump supporters are more offended by this leftist value system than by criticisms made under it, and they are buoyed by Trump’s contempt for the system and its disciples.

The Public Forum Paradox
The court ruling is potentially far-reaching, however, because of the ancillary finding by the Court that Trump’s Twitter feed is a “public forum.” Content discrimination in public forums—government controlled venues open to all comers—are subject to strict scrutiny under well-established First Amendment law. Because Trump is the president and sometimes communicates important changes to policy on Twitter, the court classified his tweets—but not Twitter in general—as uniquely subject to restrictions on public forums.

Twitter’s status as a public forum or not is important, because of Twitter’s increasing penchant for censorship over the last year. The 2016 campaign was the Twitter election. Trump’s army of MAGA-hat-wearing, Pepe-frog-memeing fans dominated Twitter and other social media during the election. While Baby Boomers and GenXers get a lot of their news from legacy print and television media, social media dominates with Millennials and younger voters. The most notable aspect of all the Twitter activity was that this uncoordinated support embraced the tools of edgy satire and mockery.

Liberalism, Hillary Clinton, the media, and the new social media are in the hands of the radical Left; like the Bolsheviks, they have consolidated power and become small-“c” conservatives in the process, concerned with maintaining power in order to continue the social revolution. As in the former Soviet Union and other systems of rigid social control, mockery, jokes, and a lack of sufficient piety by dissidents put the entire system at risk.

This is why totalitarians of all stripes are so humorless; their power depends upon rallying pious believers into rages over heresies. Thus we see “Two Minute Hates” directed at everyone from Tomi Lahren, a pissed-off New York lawyer, and random Google workers for daring to question the orthodoxy. While this works pretty well in centrally controlled legacy media and among people who depend on the establishment, the young, anonymous, spontaneous, and irreverent climate of Twitter renders most of this attempted control irrelevant.

Twitter, a company run out of Silicon Valley, does not share the values of many of its users who come from Middle America. While originally opposed to censorship, the titans of Silicon Valley have shown few qualms about imposing the peculiar values of their self-contained world, which they deem self-evident. Twitter has announced a policy of policing broadly defined “hate speech” more closely and has previously engaged in secret “shadowbans” of conservatives. In 2018, conservatives have found it harder to accrue new followers, and Twitter’s hostility has been particularly aggressive with regard to the so-called alt right.

The dissident right has high hopes this ruling might open the door to stopping Twitter’s censorship activities in general. While there is an argument to be made that if Trump’s feed is a public forum, and that being banned from Twitter altogether deprives one of this opportunity to participate in that forum, this appears an unlikely outcome.

First, like so much else that emanates from the “legal realist” federal judiciary, the results appear to dominate the decision making, with the reasoning coming afterward.

In the Knight First Amendment decision, there is a lot of twisting and turning to say that Trump’s feed—but not Twitter generally—is a public forum. There are many ways future, more generic challenges to Twitter’s practices can be fended off on the basis of established First Amendment precedent.

Further, Twitter as a whole benefits from Section 230 of the Communications Decency Act, which permits selective censorship for content that a provider “considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” This law prevents a forum provider’s narrowly focused control of what it considers particularly offensive speech from becoming a ratification of everything anyone says on the forum.

The Real Problem is Monopoly
There is a broader problem with Twitter, Google, Facebook, and other social media companies. They are, practically speaking, the only game in town. As they have become dominant, their policies have limited speech by controlling what is deemed publicly respectable far more dramatically than the three big television networks once did. While I am reluctant to permit any government imposition on private entities in order to promote or censor speech, it does not appear the favor will be returned. After all, the Obama Administration just deployed the FBI and CIA against domestic political opponents.

Two established legal doctrines may permit a way forward. One is antitrust; there is quite simply a problem when a single entity has accrued so much of a market that it is a de facto monopoly, and the government has broken up large and powerful businesses on this basis. AT&T and the “Baby Bells” were once broken into pieces in order to compete and disburse their power. Similarly, the government aggressively pursued Microsoft for tying its browser and operating system together in the 90s. There, the concern was predatory pricing, but there is more than one kind of abuse recognized under antitrust law. If Google, Facebook, and Twitter are not monopolies, no one is.

Another doctrine that may provide some respite is the Fairness Doctrine, which once applied to radio and television media. Today with hundreds and thousands of potential voices accessible on the internet, the concern for spectrum scarcity underlying the doctrine is less pressing. But when single entities form gatekeepers—and this is most dramatic in the case of Google, Facebook, and Twitter—mandatory content neutrality would likely go a far way toward stopping the abuse of free speech through monopoly power. While this means certain highly disagreeable extremists will have an amplified voice by having access to these forums, there is a solution already available on the platform.

Offensive speakers can be blocked. . . . unless you’re Donald Trump, of course.

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Photo credit: Jaap Arriens/NurPhoto via Getty Images

About Christopher Roach

Christopher Roach is an attorney in private practice based in Florida. He is a double graduate of the University of Chicago and has previously been published by The Federalist, Takimag, The Journal of Property Rights in Transition, the Washington Legal Foundation, the Marine Corps Gazette, and the Orlando Sentinel. The views presented are solely his own.

Photo: The Twitter timeline of US president Donald Trump is seen on 29 June, 2017, in Bydgoszcz,Poland after he insulted TV show host Mika Brzezinski on the platform claiming he was bullied by Mrs. Brzezinski and her co-hosts on their show Morning Joe on MSNBC. (Photo by Jaap Arriens/NurPhoto)

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