Robb: Donald Trump should be able to block whoever he wants on Twitter Robert Robb: The First Amendment protects anyone who wants to criticize Trump. But it shouldn’t require Trump to provide them the forum to do it in.

Robert Robb | The Republic | azcentral.com

How is a Twitter account like a public park?

That’s not a joke. Although, come to think of it, in a way it is.

In any event, it is the basis for a federal judge, Naomi Reice Buchwald, holding that President Donald Trump violates the First Amendment rights of people whom he blocks from his personal Twitter account, @realDonaldTrump.

'Free speech' doesn't guarantee an audience

The First Amendment’s freedom of speech should be easy to understand and apply.

It gives each of us the right to say and write what we want about what we want. But it doesn’t guarantee any of us a forum or an audience.

I have a right to write what I want. But I don’t have a right to have it published in this space.

This space belongs to the proprietors of The Arizona Republic. If they heeded the call of some of you to give me the boot, my First Amendment rights wouldn’t be violated. I could continue prattling on at robertrobb.com.

Nor would I have been censored, another term deployed imprecisely in these discussions. Not offering a place in a particular forum for someone’s speech isn’t the same thing as suppressing that speech. An individual’s freedom of speech doesn’t include obligations on the part of others.

A private owner of a forum can exclude any speech he chooses for whatever reason. The courts, however, have held that government forums are different. And that’s where our public park enters the picture.

Government forums have different rules

Judge ruling: Trump can't block people on Twitter A federal district court judge ruled President Trump can’t block people from viewing his Twitter over their political views, the hill reports. Veuer's Sam Berman has the full story.

According to the courts, government cannot engage in what is called “viewpoint discrimination.” If government allows gun control activists to hold a rally in a public park, it cannot deny gun rights activists the ability to do the same thing. Any restrictions on speech in a government forum have to apply neutrally irrespective of the views of the speaker.

Trump first established his Twitter account in 2009. He has built it up into a massive forum. Today, his account has 52.3 million followers.

The seven individual plaintiffs in the lawsuit contend that they would like to post replies to Trump’s tweets but cannot do so because Trump has blocked them from his account.

The Knight First Amendment Institute, the real plaintiff in the case, says that it wants to read the replies the blocked individuals would post to Trump’s tweets if they weren’t blocked. Although, prior to filing the lawsuit, it was following only one of the individual plaintiffs on Twitter. So, the case, as with many public policy lawsuits these days, has a manufactured feel to it.

Is Trump's Twitter feed a public forum?

Now, there is no question that, prior to becoming president, Trump could have blocked anyone he wanted from his Twitter account.

However, according to Judge Buchwald, when Trump became president and tweeted about things he was doing as president, he in essence turned his private Twitter account into a public park.

In managing that park, Trump had to practice viewpoint neutrality. The seven individual plaintiffs were supposedly blocked for posting critical replies, which the judge deemed viewpoint discrimination.

The judge never did get around to explaining exactly how the First Amendment guaranteed the Knight Institute, which wasn’t blocked, the right to read what the blocked individuals would have posted. There is a First Amendment right to speak. There isn’t a First Amendment right to hear or be heard.

Overall, this is a highly contorted, and misleading, view of what is happening here.

Trump deserves this 'free speech' right

Trump uses Twitter to communicate directly to the American people without having what he says filtered through the news media. Even as a public official, he should have a First Amendment right to control access to the audience he has created. No one else should have a First Amendment right to that audience.

To the extent Trump uses his private Twitter account to make official policy announcements, there are public records laws that are applicable. And Trump has been advised that the tweets on his personal account are subject to the Presidential Records Act.

However, requiring Trump’s tweets to be subject to public records laws is very different from saying that others have a First Amendment right to access the audience he has created.

The First Amendment protects the right of anyone to criticize Trump to their heart’s content. But it shouldn’t be interpreted to require Trump to provide them the forum to do it in.

Reach Robb at robert.robb@arizonarepublic.com.

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