
Trump’s Twitter blocks violate First Amendment rights, appeals court affirms - jackalo
https://arstechnica.com/tech-policy/2019/07/trump-cant-block-you-on-twitter-appeals-court-affirms/
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wanderer2323
It's 2nd circuit (Connecticut, New York, and Vermont) which seems to be
relatively uncontroversial, unanimous decision by 3 judges, 2 Bush 1 Obama
appointees.

""" We do conclude, however, that the First Amendment does not permit a public
official who utilizes a social media account for all manner of official
purposes to exclude persons from an otherwise‐open online dialogue because
they expressed views with which the official disagrees. """

Seems pretty narrow and it appears that a public official would still be able
to block trolls and spammers.

This all combined makes me think that SCOTUS will be unlikely to take this
case.

edit -- the "otherwise-open" part also suggest that posting a message where
all replies are blocked would also be acceptable (does twitter has this
functionality? I have it blackholed so no idea...)

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mmsimanga
In South Africa we had lots of issues with previous president. Some of the
issues were tied to the fact that presidential powers were a bit fuzzy. During
the drafting of the new constitution everyone knew Nelson Mandela would be
president so the laws were drafted taking into consideration he generally did
the right thing. Not all presidents do the right thing we soon learned.
Perhaps we are a young democracy. Will this ruling have an adverse effect for
a future president?

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bluetidepro
To be fair, why does any major political figure, celeb, influencer, or whoever
waste effort/time to 'block' anyone on Twitter? Esp. with someone like Trump,
they probably have too many mentions/activity for any real human to sort
through, that they probably just ignore all that noise anyways. I can't
imagine how you'd sift through the millions of @ replies he receives everyday.
So, even if they can 'block' them, I don't understand the value in it. Seems
odd they would even waste their time with it, and not just ignore that
tab/feature all together in Twitter. ¯\\_(ツ)_/¯

~~~
dragonwriter
> To be fair, why does any major political figure, celeb, influencer, or
> whoever waste effort/time to 'block' anyone on Twitter?

Blocking prevents blocked posts from gaining visibility due to their
association with the account doing the blocking and it's content; public
figures don't do it to manage what they see themselves (they have other
methods of managing that) but to control what other people viewing their
content see alongside it; it's a method of censorship. (Which is why it's a
First Amendment issue when a government official does it in a forum which
meets the legal standard for a public forum.)

~~~
bluetidepro
Oh really? I didn't know their algorithm took that into account. Are you 100%
positive on that? I would be curious to see where you read about that. If
that's the case, it must not be super effective, because I know from first
hand I've seen organic tweets show up in my feed by other celebs criticizing
Trump, whom he has blocked.

~~~
dragonwriter
On Twitter, the specific mechanism of censorship is that a blocked user cannot
view and reply to tweets of the account that blocked them, and so cannot
participate in conversations started by the blocking account.

It doesn't prevent collateral @-mentions.

(My post upthread was a little too general to be clear about Twitter
specifically, as it addressed the general idea of social media blocking and
not the specific mechanisms relevant to Twitter.)

~~~
bluetidepro
Ohhh I see. Totally get what you mean now, yeah that makes more sense.

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tictoc
Do people really enjoy twitter? I mean literally 99% of the time, it looks
like it's just people trying to be clever. I get it that it can be a meme
generator, but every time I've used it, like any popular site, it is just
majority trash. Maybe I haven't tailored my twitter experience, but I can't
stand the site after more than a few hours and I'll just stop using it.

~~~
krapp
>Do people really enjoy twitter? I mean literally 99% of the time, it looks
like it's just people trying to be clever. I

I mean literally 99% of the time you don't see 0.01% of what goes on on
Twitter anyway, much less put any effort into it, given your apparent distaste
for it.

So yes, chances are people really do enjoy twitter and you're just virtue
signaling your elitism here. If everyone you're following is "just trying to
be clever," then consider following other people.

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bognition
I hope this signals that the US Federal Government is finally catching up on
how laws and rules should be applied to technology.

~~~
dragonwriter
This actually follows set a number of cases years ago dealing with local
government use of internet (which themselves directly applied caselaw
applicable to privately-owned physical forums with virtually no distinction);
the only movement by the Federal Government is the executive branch doing
things that the courts had already determined no public official was permitted
to do.

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Cyclone_
So does this mean that no government officials can block anyone on Twitter?
What if a president is giving a speech and someone runs into the aisle and
starts screaming, do they have a right to be there without being escorted away
by secret service?

~~~
arcticbull
Screaming is disruptive, replying on twitter isn't, even in all caps haha.

If you're actively disrupting the ability of the president to communicate,
sure, that's not okay and you may get removed from the platform. If you're
replying with opinion and commentary in a way that people can opt into, that's
not precluding anyone else from hearing the president. At that point, it
becomes about managing the power differential.

~~~
Cyclone_
The point is whether or not the 1st amendment gives you a right to not be
blocked, whether or not they are disruptive is irrelevant. I could have
phrased the original scenario differently. If the president hosts a radio show
and he takes calls from listeners, is he now forced to listen to every caller
or can he legally hang up? It's a scenario where people can opt into as well.
This seems like a largely populist ruling to me, I'm guessing it will be
overturned.

~~~
arcticbull
The president isn't forced to read replies and neither is anyone else, though,
that's my point. On a radio call-in show, they are forced to listen, and once
again the caller is being disruptive. That the president chooses to read
replies and becomes personally offended to the point of blocking people is,
(a) shameful and (b) on him. Twitter is free to block anyone not following
their code of conduct, and this ruling does not enjoin them from doing so.

The case here is about whether the president can block someone from listening
to them solely because they share different political viewpoints. It appears
the answer is no.

I think disruptiveness is in fact the crux.

The president's communications are official government communications and
"blocking haters" is not a function of the US government. In fact, they're so
important, certain arms of the US government get their marching orders from
Trump's Twitter feed, horrifying though that may be. Trump is not tweeting in
a personal capacity, and if he were, I don't believe this ruling would apply.

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tropo
This doesn't just affect Trump, or the president, or republicans. Alexandria
Ocasio-Cortez just got sued, using the Trump court ruling as precedent:

[https://www.foxnews.com/politics/aoc-to-face-lawsuit-over-
bl...](https://www.foxnews.com/politics/aoc-to-face-lawsuit-over-blocking-
twitter-users-following-appeals-court-ruling-on-trump)

I wonder if the people who sued Trump will be happy with this outcome.

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tomatotomato37
>The suit claimed that, as Trump's Twitter feed is a public forum in which the
president posts official statements of policy...

I wonder how this will work with Twitter's new guidlines of demphasizing rule
breaking tweets from public figure, specifically any US politicians who use
the same Twitter account for policy changes and general opinions

~~~
stevenwoo
An article I read earlier today said they would preface those with a warning,
like the EU privacy thing that pops up on websites if your geo location
appears to be in the EU, and get the viewing user's consent before showing
that tweet. (after the offending tweet is flagged.)

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iooi
Who is now responsible for unblocking the users Trump blocked? Twitter or the
US Government?

~~~
icebraining
The government, since they're the ones illegally blocking.

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SkyBelow
One thing I think missing in this discussion is that Trump cannot block
anyone. When he 'blocks' someone, he is sending info to Twitter. Twitter is
the one who chooses to react to that information, and based on that reaction,
block users.

I think the courts conclusion is correct, but their reasoning is not. In this
case, I think twitter should not be allowed to stop someone interacting with
an official government account as long as they do business with the government
(if twitter quits that relationship, then the limit is removed).

~~~
ggggtez
So, you want Twitter to be both law enforcement, and the judicial system when
determining if a government employee is breaking the law, and then preventing
them from doing so?

This is literally a case about federal law. Why would you hold Twitter
accountable, but not the government?

~~~
SkyBelow
I don't follow.

What I think should happen is that Twitter is not allowed to block anyone from
responding with official government accounts, same as any other user of the
service (and this would likely also apply to any premium features). When it
comes to a non-government account, Twitter can do whatever they want. Only
when it comes to government accounts will this equality be enforced, including
allowing interactions from someone who has otherwise been banned from the
service.

I don't see how Twitter is being law enforcement or judicial system in such a
setup.

>Why would you hold Twitter accountable, but not the government?

The one held responsible should depend upon the contract. If the government
does not specify or require the equal treatment of all users, then they should
be held responsible. If it is required in the contract, and Twitter does not
honor it, then Twitter should be held responsible.

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la_barba
I don't see why Twitter should be expending resources determining what is or
isn't an 'official' government account, and what rules apply in all the
different countries' legal jurisdictions. That's just a hornets nest.

~~~
SkyBelow
>I don't see why Twitter should be expending resources determining what is or
isn't an 'official' government account, and what rules apply in all the
different countries' legal jurisdictions. That's just a hornets nest.

Then they can easily slip something into their terms of service to say no
official government accounts allowed, and when one shows up and starts to
cause problems they can ban it.

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gremlinsinc
I hope Twitter follows up by adding a 'public servant' tag like 'verified',
but public servants cannot block users, because I'm sure Trump will still
claim he can do it, and will still do it, unless the platform itself won't let
him. Because he's Trump and thinks he can do anything he wants.

~~~
vokep
This would be the correct course of action it seems.

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droithomme
Under the same principle banning accounts from social media because of their
political opinions must also be considered unconstitutional.

~~~
moate
No, because Twitter itself isn't the government.

For everyone playing at home: When the Government (personified by Trump in
this case) limits your ability to express your freedom of speech (represented
by blocking you on twitter) they're violating the first Amendment.

When a private citizen or corporation does it, you're probably just violating
their ToS.

~~~
geggam
Arguably then every govt employee is bound by this.

~~~
tareqak
Yeah and if they have decision-making power that affects their constituents
then they probably should be bound by this ruling.

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clinta
This might have some interesting implications for Twitter's ability to
moderate their platform. If the President blocking someone violates the First
Amendment, then surely Twitter themselves blocking individuals is also a
violation.

Will this force Twitter to allow all legal speech on their platform?

~~~
meritt
> then surely Twitter themselves blocking individuals is also a violation

That's quite the leap. Twitter is not a representative of the federal
government.

~~~
clinta
The court has ruled that individuals have a First Amendment right to use
Twitter to interact with representatives of the federal government. But you
can't use Twitter to interact with those representatives if Twitter has banned
you.

~~~
dragonwriter
> The court has ruled that individuals have a First Amendment right to use
> Twitter to interact with representatives of the federal government.

No, it hasn't, except insofar as such a right is protected against a specific
form of government action.

It has ruled, more accurately, that individuals have the right to not have the
government officials exclude them from full participation in particular
corners of Twitter used for official government purposes.

~~~
SkyBelow
The government official, by choosing to use twitter, has chosen a platform
that has people excluded. Perhaps the technical flaw is on the politician for
choosing a platform that has already excluded people, but the end result is
that from the private public partnership people are being excluded.

~~~
dragonwriter
> but the end result is that from the private public partnership people are
> being excluded.

Sure, but that end result isn't what the courts have found is prohibited, they
have found that government officials excluding people on certain bases is
prohibited.

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andegre
Ridiculous, it's his own twitter account. He can do with it as he pleases.

~~~
rhcom2
The WH calls it the official Presidential account and he disseminates policy,
sometimes exclusively, through Twitter. It really isn't just "his own twitter
account" anymore because of his own doing.

~~~
the_watcher
But it's not private, so if you are blocked, you can simply log out and view
it. All blocking does is prevent you from seeing the tweets while logged in
and tweeting AT the account. It's really hard to square with how this
restricts free speech unless it's a violation of the First Amendment for the
White House to block emails, throw out letters without opening them, etc.
Plus, muting exists.

I think it's wildly stupid that the President would block people on Twitter,
if only from a PR POV (particularly given the existence of muting), let alone
read his replies in the first place, but it's impossible to create a coherent
case for why blocking someone on Twitter infringes on free speech.

~~~
ggggtez
If you read the ruling, you'll not this is not just about _reading_ the
information, but the First Amendment (free speech).

The government cannot prevent people from commenting and discussing the
government's speech (through retweets etc). Logging out is _not_ a solution.
Sure, you can talk in person, or on Facebook, or even copy-paste the content.
But you couldn't retweet, and thus you were blocked from participating in the
public discourse.

Turns out, the government can't interfere with private citizen's ability to
engage in public discussion about the government, even if it's just on some
dumb site like Twitter.

In fact, if his account _was_ private, and it was only discussion for his
personal friends or whatever, then there wouldn't even be an issue. The public
nature of the account is exactly why he can't block people. It would be like
the government sending an official request to Fox News to block democrats from
appearing on the air. Sure, they could just watch on TV, but the government
has essentially told a private entity they have to block certain citizens from
speaking on their platform. It doesn't matter if Fox News would agree to it or
not, the government cannot even ask for it.

~~~
the_watcher
I did read the ruling, I just don't find the argument compelling. How does
being blocked prevent anyone from discussing the content of the account? The
only semi-coherent argument is that... there is a First Amendment right to
__retweet __a government affiliated account from the account you want to
retweet it from? And that somehow, having access to __that specific method of
engaging with the content, despite numerous other avenues existing, including
on Twitter itself __, blocks you from participating in the public discourse?

I thought I took the broadest possible view of free speech, seriously. I just
honestly can't get to the idea that there is a First Amendment right to
retweet from your preferred account (which is the __only __thing that a block
actually prevents) or that not being able to retweet from your preferred
account actually impacts the ability to participate in public discourse.

Sidebar: Twitter should be terrified of this, right? This is treating behavior
on a private company's site as protected speech. I know that right now it's
limited to the government, but it's now a much smaller leap to "Twitter is
protected speech" in the same way that "putting up a flyer in a public square
is protected speech".

~~~
Fjolsvith
> I know that right now it's limited to the government, but it's now a much
> smaller leap to "Twitter is protected speech" in the same way that "putting
> up a flyer in a public square is protected speech".

All the social media companies should be quaking in their boots. For example,
Facebook disallows convicted sex offenders from their service. If these free
speech distinctions continue to move in this direction, courts will eventually
force these platforms to allow everyone.

