Litigation

Do Trolls Have a Constitutional Right to Read a Trollee’s Tweets?

Another day, another First Amendment case—this time a group of people blocked by President Trump on Twitter. The horror! Let’s dive right in.

The Knight First Amendment Institute at Columbia University, a nonprofit dedicated to free speech, has joined seven Twitter users in suing not just President Trump, but Press Secretary Sean Spicer, and White House Director of Social Media Daniel Scavino, too. Since Trump uses his personal account in an “official capacity,” he, Spicer, and Scavino are only being sued in an official and not personal capacity.

The lawsuit calls the president’s personal Twitter account, @realDonaldTrump, (sorry Rebecca if that link doesn’t work for you!) an “important public forum for speech by, to, and about the president” under the First Amendment. It goes on to say that blocking, or excluding, users from reading these tweets is unconstitutional. The lawsuit cites Sean Spicer calling these tweets “official statements” from the president in June, and the fact that both government agencies and foreign leaders treat these statements as such as evidence that it is necessary for all Twitter users to have access to them.

But access isn’t the problem.

Twitter users blocked by Trump can still view the president’s tweets by either going on Twitter without logging into their account, or by creating a new account altogether. Both solutions are free and take mere seconds. Moreover, these Twitter users have ostensibly thought of these solutions and have already done this if they don’t see Trump’s tweets diligently reported in the news. . . and if they have a burning desire to see them at their source. Instead, though, these plaintiffs decided to spend their time (and ours!) and resources (and those of the president and his employees!) lawyering up.

Let’s be firm: this case is obviously not about access. If it were about access, these users would simply use one of the solutions outlined above instead of escalating to legal action. So. . . are they just trying to get attention?

 Let’s meet these disgruntled Tweeters

The plaintiffs include Rebecca Buckwalter, writer and political consultant in D.C.; Phillip Cohen, professor of sociology at the University of Maryland, College Park; Holly Figueroa, political organizer and songwriter from Washington state; Eugene Gu, general surgery resident at Vanderbilt University Medical Center and the CEO of Ganogen Research Institute; Brandon Neely, police officer from Texas; Joseph Papp, former professional cyclist and author from Pennsylvania; and Nick Pappas, comic and writer from New York City.

Their lawyers have presented their case as a “noble” and “consequential” first amendment issue in the Trump era:

“Those who are blocked from the account are impeded in their ability to learn information that is shared only through that account. 45. The comment threads associated with tweets from @realDonaldTrump are important forums for discussion and debate about the President, the President’s decisions, and government policy. Typically, tweets from @realDonaldTrump generate thousands of replies, some of which generate hundreds or thousands of replies in turn. The @realDonaldTrump account is a kind of digital town hall in which the President and his aides use the tweet function to communicate news and information to the public, and members of the public use the reply function to respond to the President and his aides and exchange views with one another.”

Wait. . . what does that say in the middle of the paragraph? Tweets posted on Donald Trump’s twitter generate thousand of replies, some of which generate hundreds of thousands of replies in turn. 

Hm. I think we’ve discovered why these Twitter users are so upset—they can’t publicize themselves anymore by harassing the president of the United States!

The lawsuit only explicitly touches on this issue two other times when discussing the plights of the two plaintiffs who are verified on Twitter. Rebecca Buckwalter, the political consultant/writer,

“Would post links to her own writing when she believed pieces she had written were relevant to the topics being discussed. Some of her tweets directed at the @realDonaldTrump account received thousands of likes and retweets.”

Nick Pappas, the comic/writer, “often received thousands of likes and retweets” on his replies to @realDonaldTrump.

Thus, their cottage industry has been denied them. The lawsuit, however, conspicuously avoids linking being blocked on the social network with financial loss, profit loss, or the loss of professional publicity, notoriety, or platform.

But guess who has boldly and conspicuously explicated that link? Plaintiff Rachel Buckwalter.

unnamedBack in June, Buckwalter celebrated being blocked by Trump. One month later, her tune had changed.

image (5)

In a piece for Fortune, Buckwalter revealed that her true issue with the block isn’t her inability to access information, but rather her ability to profit off of critical tweets from the president. Do Americans have the opportunity to profit off of the president? Yes. But do they have an inalienable, Constitutionally-protected right to do so? Probably not.

Communication with politicians

Conversely, does the president have a right to facilitate this “digital town hall” that occurs on his own feed? Yes—and perhaps it isn’t just a right, but a duty as well. But since blocked users can access Trump’s tweets elsewhere or by other means, there is nothing de facto unconstitutional about the blocking to begin with.

If Trump’s feed is a digital town hall as this suit alleges, blocking users is perhaps akin to not calling on these voices. Not everyone gets to speak at the town hall! Sometimes, even Jim Acosta doesn’t get to (OK, but he throws a temper tantrum about it anyway). That doesn’t mean a person’s voice is completely silenced—they can still use it freely on other forums.

If these plaintiffs are successful, what are the ramifications for other types of communication with politicians and public officials? Do citizens who derive profit from incessantly criticizing or obstructing a politician’s communication hold an inalienable right to continue doing so under all conditions? Is this protected speech? If so, why? If not, why not?

Take the example of calling a legislator’s office—many politicians’ offices keep a blacklist of phone numbers from whom they will no longer accept calls because these constituents have been overly critical, nonsensical, or perhaps even deranged. Many legislators also keep a record of people who have sent negative emails addressed to senators and congressmen with the express purpose of cutting off further communication with this constituent.

Sometimes politicians do this because these constituents include actual threats. . . but the predominant reason why they sever these lines of communications is because they don’t want their time further wasted.

But fortunately for these Twitter users, suing the president has given them another injection of the fading notoriety they not only crave, but monetize. Will it be enough for them? Their lawyers are asking for the court to rule the blocks to be unconstitutional, force Donald Trump to unblock the users, award plaintiffs their costs including legal fees, and “grant any additional relief as may be just and proper.” Will the additional “relief” that some of these plaintiffs, like Buckwalter, seek come under the auspices of income lost due to the inability to profit from Trump’s Twitter feed?

The suit has been filed in the Southern District of New York. . .  where it will surely waste the court’s incredibly valuable time. While the plaintiffs pretend they are proudly defending free speech for all Americans, the fledgling Knight Institute wants to make a name for itself, the media personalities want to sell themselves, and, together, they hope to further obstruct the political process in Washington with continued nonsense and tantrums.

If these parties actually cared about other Americans, they wouldn’t be wasting our time or the president’s—which could be spent on real action for the people. The president is working to solve healthcare, tax reform, infrastructure, and gang violence, but these Twitter users seem to at least pretend to believe that bringing legal action over their social media is more important.

We truly live in an age of spellbinding, inane, and reckless narcissism.