Nieman Foundation at Harvard
Searching for the misinformation “twilight zone”
ABOUT                    SUBSCRIBE
July 11, 2017, 12:30 p.m.
Reporting & Production

The freedom-of-speech institute suing @realDonaldTrump to unblock his critics on Twitter has its eye on other lawsuits, too

“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 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 are 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.”

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.

Wang: This is the first litigation case relating to freedom of speech on social media you’ve taken on at the Center?

Jaffer: Everybody loves to talk about Trump and Twitter, so this particular project got a lot of attention, but it’s not our first case.

We have a lawsuit relating to searches of electronic devices at the border. We have a suit relating to the White House’s refusal to relate visitor logs. We’re going to argue a case in a few weeks involving the withholding of Office of Legal Counsel memos under the Freedom of Information Act.

Wang: I’m ignorant about how these sorts of legal cases tend to proceed, but what’s the timeline look like on all of these cases you have going on simultaneously?

Jaffer: It depends. Litigation is very slow. Some of these cases are Freedom of Information Act cases, which are relatively discrete and can be litigated in relatively little time. But relatively little still means months, not days or weeks.

Some of the more complex cases might be in front of a district court for six months or nine months or even a year, and then go up to an appellate court, and from there, possibly to the Supreme Court. The life of a typical case that goes all the way up to the Supreme Court is probably five or six years, and sometimes longer.

Wang: And how are you deciding what you will take on in terms of actual litigation?

Jaffer: Our mandate is to defend the First Amendment in the digital age, so we definitely have our thumb on the scale for First Amendment issues that raise questions relating to new technology. But we also have identified some priorities. Three in particular.

One is government transparency. The case related to White House visitor logs, and the case I mentioned relating to Office of Legal Counsel memos, fall into that category. The second category is First Amendment limits on government surveillance power, our case involving electronic devices at the border falls into that category.

The third priority is free speech on social media. The Trump Twitter account project falls into that particular priority. Those are priorities we set with our board back in January before we began to build a litigation docket. The litigation docket we have begun to build reflects those priorities.

Wang: I thought the letter the center sent to the president and the argument it laid out was interesting, because it’s sort of the way I think about FOIA access — how the public has a right to that information, and similarly the public has a right to the president’s Tweets and a right to access the discussion around them.

Jaffer: I’m not sure FOIA is the right analogy. FOIA is not a constitutional right; it’s a statutory right, so Congress could take it away.

The Supreme Court has held that there are certain forums that the First Amendment recognizes as public forums, like town halls and open city council meetings. The rule at those kinds of forums is that the government can’t exclude people based on their political views. That’s probably the most well-settled rule in First Amendment jurisprudence: the rule against viewpoint discrimination. That rule is very well settled, but how it applies — or whether it applies — to new communications platforms like Twitter or Facebook is an open question. That’s not something that’s really been litigated before.

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. 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. That’s why we took on this particular issue.

There are lots of issues that arise out of new technology, including issues relating to government surveillance and the effect of government surveillance on the freedoms of speech and the press, issues like encryption and questions about the First Amendment right to communicate in code — which is essentially what you’re doing when you send an encrypted email or make an encrypted phone call. There are questions relating to the liability of speech intermediaries like Twitter or Facebook: So if you post something on Facebook that’s defamatory, can Facebook be held liable? Or if you post something on Twitter that encourages somebody else to carry out some criminal act, can Twitter be held liable? Those kinds of questions are really important for free speech, because Twitter and Facebook and all these other new social media companies are so crucial now. They are the equivalent to what city sidewalks and streets used to be 50 years ago — those are the places people would congregate to have conversations, and now people congregate on social media.

Wang: This argument would go for comments on a website, social media posts replying to something on a Facebook page.

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.

POSTED     July 11, 2017, 12:30 p.m.
SEE MORE ON Reporting & Production
Join the 50,000 who get the freshest future-of-journalism news in our daily email.
Searching for the misinformation “twilight zone”
The ocean’s twilight zone is, first and foremost, a reminder that our understanding of misinformation online is severely lacking because of limited data.
Just how broken is our political information ecosystem, anyway?
Nearly half of Trump supporters surveyed still believe he’ll be sworn in for a second term in January. Not that he should be — that he will be.
“Whoa!” “I’m crying!” “Worrisome!” “Buckle up!” The swift, complicated rise of Eric Feigl-Ding and his Covid tweet threads
The scientist has gained popularity as Covid’s excitable play-by-play announcer. But some experts want to pull his plug.