COVID-19 Update: How We Are Serving and Protecting Our Clients. Click for More Information.

Twitter and the First Amendment

The First Amendment to the United States Constitution protects several rights, including the freedom of speech.  Indeed, the text of the Amendment reads “Congress shall make no law . . . abridging the freedom of speech.”  Like most Constitutional rights, the freedom of speech is not limitless and the level of Constitutional protection speech may be afforded depends, sometimes, on where the speech is made. Courts have interpreted the freedom of speech to apply to a variety of forums, including books, public streets, and, in some cases, public buildings.  Today’s civil rights blog discusses the collision between a centuries old document and 21st century technology – twitter.

Public Forums vs. Non-Public Forums

Throughout the course of U.S. history, the country’s courts have been called upon to interpret the meaning of the Constitution and its Amendments.  As First Amendment law has developed, it’s become understood that public spaces can fall into one of three types of forums — a public forum, a public forum by designation, and a non-public forum.  The level of First Amendment rights a person has in a public space is dependent on which of these types of forum the public space is classified as.

Public forums are spaces which have traditionally been used by the people to exercise First Amendment rights.  Parks are a leading example of a public forum.

Designated forums are spaces which have not traditionally been used for First Amendment purposes.  An example of a designated forum might be an auditorium owned by a local government.

For both public forums and designated forums, free speech has the greatest protections.  The government may impose some restrictions to address compelling state interests, but it cannot restrict speech based on content.  In other words, the government may close a park at night for security concerns, but it could not close the park to prevent a particular community activist from speaking about a particular topic.

Non-public forums are spaces which are not traditionally used for public speech.  A government office building is an example of a public space which is not used for speech.  In non-public forums, the government can take broad measures to regulate speech and to maintain the space to be used for its intended purpose.  Could you imagine if the government could not regulate free speech at the DMV?  Anyone could walk in with their soap box, stand up, and deliver a speech while you’re waiting to renew your license. Even in non-public forums, however, the government cannot regulate speech based solely on the content of speech.  For instance, the DMV could not allow someone to make a speech about how terrible the train system is, but kick out someone else for making a speech about how terrible the DMV is.

These concepts of public forums have posed trouble for Courts in traditional arenas. With the expansion of the internet and social media, and governments’ use of social media to share information, Courts will continue to struggle determining the appropriate level of Constitutional protection to apply to users of social media.

Social Media and the First Amendment

Recently, a group of twitter users sued, among others, President Trump.  It is no secret that the President relies heavily on twitter and sends many tweets per day about a variety of matters.  Twitter allows a person’s followers to respond to tweets, even to the President’s tweets.  According to their lawsuit, by using a twitter feature, President Trump has blocked some twitter users from responding to his tweets.  They allege this is a violation of their First Amendment rights.

This lawsuit raises many questions about the First Amendment, but it also raises another important point – do Courts understand the nature of twitter sufficient enough to be able to rule on the legal issues concerning First Amendment rights.  Last year, in NLRB v. Pier Sixty, New York’s federal appellate court issued a decision involving Facebook which suggested the judges understood the importance of Facebook as medium for sharing ideas.  But, the decision left open the question of whether the Court understood the inner workings of Facebook. According to media reports, the Court in the Trump twitter case spent a while asking the lawyers in the case about how twitter works.  Ultimately, the judge in the Trump twitter case will have to decide, among other things, whether President Trump’s twitter feed is a public forum or something else`.  That determination will drive the inquiry into whether the President violated the First Amendment by blocking followers.

Long Island First Amendment Lawyers

Though just a few words long, the First Amendment’s free speech clause can cause complicated legal issues.  Famighetti & Weinick, PLLC are Long Island First Amendment lawyers.  We are experienced in handling First Amendment issues for employees and citizens.  Indeed, both partners Peter Famighetti and Matthew Weinick have won jury trials for cases arising from First Amendment violations.  If you have a question about free speech or other First Amendment rights, contact a Long Island First Amendment lawyer at Famighetti & Weinick, PLLC.  We are available at 631-352-0050 or on the internet at https://www.linycemploymentlaw.com.

Some of the facts and information for today’s civil rights blog was gathered from court documents filed in the case Knight First Amendment Institute at Columbia University v. Donald J. Trump, No. 17-5205, S.D.N.Y. and from the New York Times.

Contact Information