constitutional-law freedom-of-speech us-federal-government first-amendment social-media
What is the legal distinction between Twitter banning Trump and Trump blocking individuals?
<p>For reference, <a href="https://www.npr.org/2021/04/05/984440891/justice-clarence-thomas-takes-aims-at-tech-and-its-power-to-cut-off-speech" rel="noreferrer">this recent NPR article</a> contains all of the information that inspired this question.</p>
<p>The lawsuits referenced in the above article center on then-President Trump blocking individual users on Twitter from interacting with or seeing his tweets. Lower courts apparently ruled that Trump's twitter feed is essentially a public forum, and therefore, blocking users was unconstitutional because it amounted to viewpoint discrimination. There haven't been (as far as I know) any lawsuits against Twitter for their banning of Trump while he was President. Clearly, any such lawsuits would likely be ruled moot now, but it stands to reason that if Trump isn't allowed to prevent people from interacting with him on social media, then Twitter shouldn't be allowed to prevent people from interacting with him either.</p>
<p>One possible distinction here is that Twitter wasn't practicing viewpoint discrimination since they effectively blocked everyone from interacting with President Trump without regard to viewpoint. However, if the President's presence turns a social media account into a public forum, then preventing the president from having an account seems to be a form of viewpoint discrimination in itself. Really, the whole thing is very strange since it seems to suggest that Twitter (a private company) has control over whether or not certain public fora are allowed to exist. To me, that sounds like those fora were never really &quot;public&quot; at all (meaning Trump should be able to block people from his personal account), or if they were, then Trump's viewpoint was being discriminated against and Twitter has an obligation as the purveyor of this public forum to protect his rights.</p>
<p><strong>Why are Trump blocking individuals on Twitter and Twitter effectively blocking everyone for Trump by banning him treated differently under the law?</strong></p>

<p>Trump was an officer of the government, and Twitter wasn't.  The First Amendment forbids the government and its agents from viewpoint discrimination, but private companies are not bound by it and can discriminate as much as they please.</p>
<p>(There was a question as to whether such discrimination might affect whether the company enjoys a shield from liability under <a href="https://www.law.cornell.edu/uscode/text/47/230" rel="noreferrer">47 USC 230</a>, but even so they have the right to block and censor as they wish if they are willing to risk that liability.)</p>

<h2>An analogy.</h2>
<p>I own a meeting hall.  I rent it out to the US Forest Service, who frequently has public hearings on matters of policy e.g. whether to open a sector for logging or recreation, seal up abandoned mines or leave them for explorers, that kind of thing.   Some of these can get pretty loud.</p>
<p>The Forest Service decides to let all the loggers into the <strong>public</strong> meetings... but refuses to let in environmentalists.  <strong>Can they do that?</strong></p>
<p>I arbitrarily decide I don't want to lease my property to the Forest Service anymore. <strong>Can I do that?</strong></p>
<p>Separately:</p>
<p>The Forest Service <em>can't</em> discriminate like that because they're operating a public forum and it's a First Amendment issue.</p>
<p>Whereas I have owe no duty whatsoever to provide the Forest Service a venue.  They can't even claim I &quot;have them over a barrel&quot; since the Forest Service still owns plenty of properties of their own.  Likewise the US Government hardly needs twitter.com; it has its own websites... heck, it controls not only the entire .GOV top level domain, but .MIL as well.</p>

<p>The main reason for this asymmetry is, as the other answers say, that Twitter is a private company and Trump was a government official. It is a little more subtle, in that Twitter is not a regulated public utility. Various businesses such as gas, water, electricity are deemed to be public utilities which serve  the  basic needs of the general  public, and they have  a  &quot;duty to serve&quot; (see <a href="https://www.nclc.org/images/pdf/older_consumers/consumer_facts/cf_dealing_with_utility_companies.pdf" rel="noreferrer">this</a>, and <a href="https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=4595&amp;context=law_lawreview" rel="noreferrer">this older article</a> on the extent of the right of a public utility to refuse service). This may impose a requirement to justify refusing service. My refuse-collecting company cannot arbitrarily refuse to pick up my trash (because they were granted a monopoly on residential trash collection), but they can refuse service for good cause. Twitter is not, at present, such a regulated public utility, so they <em>can</em> arbitrarily refuse service.</p>
