Social media, free speech and the revenge of “The Donald”

Litigation & Arbitration / Tuesday, May 29th, 2018

Translated from the original in French.

On 23 May 2018, the Federal District Court for the Southern District of New York ruled that the First Amendment to the US Constitution, which protects the freedom of speech, prevents President Trump from “blocking” users who wish to comment on his statements on the social network Twitter.

If the District Court’s decision could be considered as proceeding from an orthodox analysis of the freedom of speech in US law, it could trigger a wave of litigation bringing these free speech rights in direct conflict with the rights of private companies to police their own platforms.

The reasoning of the District Court

As noted above, the reasoning adopted by the District Court appears to be perfectly orthodox in the light of US case law on the freedom of speech.

Firstly, the Court determined that the speech claimed by the plaintiffs who were blocked from the President’s Twitter account was of a political nature and therefore protected by the First Amendment.

Secondly, the Court considered that the plaintiffs’ claims must be analyzed in accordance with the legal regime of “public forums” within the meaning of American case law on the freedom of speech.

In this context, the Court clarified that the “public forum” constituted by the President’s account includes only the comment space below the President’s tweets, and excludes virtual spaces resulting from responses to these comments or those resulting from “retweets”, i.e. comments made by other users in the form of separate tweets referring to the tweets of the President. All aspects resulting from the choice of the President such as the content of his tweets, the notifications he consults and the list of people he follows on the social network are also excluded from the scope of the analysis.

According to the Court, the ownership of the platform by the private company Twitter does not affect the classification of the comment space as a public forum. For the Court, the applicability of the doctrine of public forums does not depend on the ownership of the space in question but on the ability of the State to control access to that space. This criterion was fulfilled when Mr. Trump was able, by blocking users, to control these users’ access to the content of his tweets and the comment spaces below his tweets.

The Court further stated that blocking the plaintiffs was a “state action” and therefore open to challenge on the basis of the First Amendment, as Mr. Trump used his personal Twitter account in his capacity as President of the United States (1).

Finally, the Court notes that the public forum thus constituted must be classified as a “designated public forum” within the meaning of the case-law on the subject. A designated public forum is the result of the government’s intention to designate a place not traditionally open to assembly and debate as a public forum. The legal regime of these public forums is almost identical to that of traditional public forums: the First Amendment applies in all its splendor and restrictions are permissible only if they are narrowly drawn to achieve a compelling state interest.

Given that the legal framework was so defined, the Court had no difficulty in determining that blocking the plaintiffs from the President’s Twitter account constituted a violation of the First Amendment, as this exclusionary measure was based solely on viewpoint discrimination and prevented the plaintiffs from commenting on the public forum constituted by the comment space under the tweets of the President.

Unexpected consequences for social networks

The recognition by the American courts of a public forum protected by the First Amendment, existing within a private platform, is likely to have adverse consequences for private companies owning social networks such as Facebook and Twitter.

Indeed, the traditional doctrine is that the First Amendment cannot be invoked against private companies. Furthermore, as the free speech of these companies is equally protected by the First Amendment, it is perfectly open to these companies to select the content which they host on their platforms.

It is on this legal basis that companies like Facebook and Twitter have adopted strict and sometimes capricious “community standards” to exclude several Internet users, particularly conservatives, from their platforms.

Yet, as Professor Feldman notes, if the Twitter account of the President was considered a designated public forum, users excluded from this social network could bring a lawsuit against Twitter to claim the restitution of their access to this public forum (2). If the American courts allowed such claims, the regime explained above would be modified and it would be possible to invoke the First Amendment against private companies such as Twitter (3).

This is a potential opening that The Donald did not fail to exploit. A day after the District Court’s decision, Donald Trump’s 2020 campaign manager and the Republican National Committee (RNC) Chairwoman wrote to Facebook and Twitter on this subject.

The authors of this letter, who refer to recent events that prove censorship of conservative voters at the behest of these companies, consider that Facebook and Twitter are “widely used public forums” and ask for explanations relating to the management of content posted online by their users. They would also like to obtain “assurances that transparency, neutrality, and protection of all speech will be core tenets of Facebook and Twitter operations, now and in the future”.

Thus, the decision of the District Court could finally be a boon to President Trump, who seeks to stop the censorship of his own supporters on these social networks and whose taste for revenge is common knowledge. A situation worth watching !


(1) The Court also had to rule on various defenses based on the principle of separation of powers and the immunity of the President. These issues need not be addressed in the present analysis.

(2) Such lawsuits have already been brought. See

(3) It is interesting to note that these private platforms might already be subject to constitutional provisions relating to free speech in Germany. See