The Knight First Amendment Institute at Columbia University made waves last month when it threatened a First Amendment lawsuit on behalf of users blocked by @realDonaldTrump after criticizing him on Twitter, the U.S. president’s well-used, most-followed Twitter account (more than 33 million followers; official @POTUS has 19 million).
In a letter addressed directly to President Donald J. Trump in early June, Institute director Jameel Jaffer and attorneys Katie Fallow and Alex Abdo had argued that blocking users who criticized or mocked Trump from accessing and engaging with his Twitter is actually unconstitutional, because @realDonaldTrump is used in such a way that it counts as a public forum under the First Amendment.
Today, the Institute followed through, filing a suit in the Southern District of New York. (The official complaint is here; in addition to Trump, beleaguered press secretary Sean Spicer and White House social media director Dan Scavino
named as defendants in their “official capacities.”)
“Legislators and public officials all over the country are increasingly using social media to engage with their constituents. So we really see these questions as the social media-era equivalent of the town hall and city council meeting questions that came up 20, 30, 40 years ago,” Jaffer told me in an interview last month, before the suit had been filed. “It really does affect the vitality of our democracy if local politicians are blocking their critics on Twitter and thereby preventing those critics from engaging with the public officials who are supposed to be representing them.”
My use of social media is not Presidential – it’s MODERN DAY PRESIDENTIAL. Make America Great Again!
The Institute is a new partnership between the Knight Foundation and Columbia University, each of which committed $30 million ($5 million for operating, $25 million for endowment), for a total of $60 million to start. Beyond the splash it made with Trump Twitter-blocking, the Institute is already deep into several other cases that it sees as having far-reaching, law-shaping effects in the digital age, including a FOIA lawsuit against the Department of Homeland Security for records on searches of cellphones and laptops at the border.
Below is a lightly edited and condensed transcript of my conversation with Jaffer about where these cases are headed, the Institute’s larger mandate, and what other cases it might be looking at.
Jaffer: Right. So if your legislator has a Facebook page and your legislator posts something about a piece of legislation he or she is introducing, and then everyone starts commenting on the wisdom of that particular piece of legislation, and if this is an official government account, then the First Amendment places some limits on what kind of censorship the government official can engage in on that page. Those limits are important, because if those legislators end up censoring their critics, then anyone who goes to that page is going to get the false impression that everybody is in support of that legislation, when in fact they’re not — it’s just that critics have been excluded.
Wang: Would the results of the Trump Twitter account case apply to blocking on platforms like Facebook?
Jaffer: That’s hard to say. It would depend on how the case is decided. There are some factual questions here, and the facts might be different from one context to another.
We’re not making the argument that every social media account run by a public official is a public forum. We’re making the argument that Trump’s Twitter account is a public forum. That has to do with the way Trump uses his account: He uses it to make official announcements, he uses it to engage with foreign leaders, he uses it almost exclusively to comment on government policy. Based on a whole list of factors, we conclude that this is a public forum under the First Amendment.
Those factors may not be present for some other public official. Certainly the basic principle, if we’re successful in establishing that a public official’s social media account can be a public forum for social media purposes, that basic principle would be applicable to other officials and to other social media platforms. But there would still be a factual question in each individual case about whether that particular account was in fact a public forum.
Wang: So you might take on a separate case, relating to Facebook use, for instance, down the line —
Jaffer: Absolutely. Part of the reason we took this case on is that we have seen reports from across the country of public officials blocking their constituents on Twitter or Facebook. The hope in litigating this case is that we establish a precedent that will be useful to people in pushing back against those kinds of blocking, blockings by other public officials.
Wang: What are you hearing from news organizations or individual journalists who might be looking for representation on specific cases of theirs?
Jaffer: Well, some of the people @realDonaldTrump has blocked are reporters, so we have also been talking to reporters in that context. Our electronic device case — that’s also something of special interest to reporters, since they have especially sensitive information on their phones and laptops and tend to be especially concerned about those types of searches. The White House visitor log case is also of special interest for reporters, since reporters have been able to use that kind of information for the last 10 or 20 years to tell stories about who has access to the government and who has influence over the government. So some of the cases we’ve already taken on are at least of importance to media organizations and to reporters.
Since our mandate is to defend and strengthen the freedom of the press, I anticipate we’ll end up representing reporters in many of our cases. We do try to look for impact cases. So the idea is to bring the kinds of cases that are likely to have effects for many people, including people who aren’t in front of the court. So we’re unlikely to do run-of-the-mill FOIA litigation, for example, or one-off right-of-access cases. Those are very important cases, but aren’t the kinds of cases we’re set up to litigate. We’re looking for strategic cases, in the sense of cases that will shape the law or change the practices of executive agencies.
Wang: We’re based on a college campus also, so I’ve been thinking about about the question of college journalists and freedom of speech on campuses. There’ve been a lot of unanswered questions around that of late. Have you taken on any of those types of cases?
Jaffer: We haven’t, not yet. Before I started, I thought that since our mandate is digital-age issues, we’re probably not going to get involved in campus speech issues. Campus speech issues have turned out to be hotly contested right now, and we are at the end of the day a First Amendment organization based at a university, so increasingly I felt like we should engage with that set of issues.
We have a research program as part of the center and we’re commissioning essays by legal scholars about matters of public concern — these are essays for a general audience rather than just a legal audience. We’re just about to post one by Thomas Healy — a version of it ran in the Atlantic — about free speech on campus.
We’re open to representing student journalists or working with student journalists. We’re only nine months old, so thus far haven’t had lots of opportunities to do this yet.
Photograph of the text of the First Amendment by t. used under a Creative Commons license.