Views on First

S1 E1: What is Twitter?

• Knight First Amendment Institute at Columbia University • Season 1 • Episode 1

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What is Twitter (or any social media platform) as a matter of First Amendment law? In the first of five episodes, host Evelyn Douek begins to crack open this question, starting with perhaps the most famous Twitter handle of all — @realdonaldtrump. As president, Trump used his account to hire and fire government officials, butt heads with North Korea, and block his critics, a practice that one group of lawyers started to question.

Guests Jameel Jaffer and Katie Fallow — executive director and senior counsel at the Knight First Amendment Institute, respectively — discuss the Knight Institute’s landmark case –Knight v. Trump – establishing that the First Amendment bars public officials from blocking critics from their social media accounts. They are joined by some of the plaintiffs from that lawsuit—comedy writer Nick Jack Pappas, chocolatier and political consultant Holly Figueroa O’Reilly, and sociologist Philip Cohen, who recount their experiences of being blocked (and then unblocked) by Trump.

This episode contains strong language.

Views on First is brought to you by the Knight First Amendment Institute at Columbia University. Please subscribe and leave a review. We’d love to know what you think.

To learn more about the Knight Institute, visit our website, knightcolumbia.org, and follow us on social media.

Speaker 1:

What? What? What? What? What is... Twitter? Twitter. Twitter. Twitter. Twitter. Twitter. Twitter. Twitter. Twitter. Twitter.

Evelyn Douek:

What is Twitter? Is it just a health site you cannot avoid checking every time you have a toilet break at work? Is it just a business trying to make a dime by selling your attention to advertisers?

Senator Orrin Hatch (R-UT):

How do you sustain a business model in which users don't pay for your service?

Mark Zuckerberg:

Senator, we run ads.

Evelyn Douek:

Is it a billionaires personal play thing?

Peter Tchir:

Elon came and bought it. He's really not buying it as an ongoing business necessarily. It's almost somewhere between a toy and an investment for him.

BBC Newscaster:

Twitter has suspended the accounts of several journalists working for high profile outlets. Most have written critically about the takeover of the firm by Elon Musk.

Evelyn Douek:

Or is it something else? Something far more important.

Jack Dorsey:

We believe that the people use Twitter as they would a public square.

Elon Musk:

Twitter has become the defacto town square,

Jack Dorsey:

and they often have the same expectations that they would have of any public space.

Evelyn Douek:

Is it something everyone should care about, whether you have a Twitter account or not?

Judge (Fifth Circuit Court of Appeals):

Twitter tomorrow could decide that it can ban all pro-LGBT speech on Twitter. It has a First Amendment right to do that.

Lawyer:

Yes.

Judge (Fifth Circuit Court of Appeals):

That's extraordinary.

Evelyn Douek:

What if it's all of those things?

Speaker 1:

Twitter. Twitter. Twitter. Twitter. Twitter.

Evelyn Douek:

I'm Evelyn Douek, and this is Views on First, a podcast about the First Amendment in the digital age from the Knight First Amendment Institute at Columbia University. Season one is going to try and answer the question of what the heck social media is as a matter of constitutional law. What, for the purposes of the First Amendment, is Twitter, or Facebook, or YouTube, or Donald Trump's own Truth Social, for that matter? What Twitter is as a matter of constitutional law is a far deeper question than what Twitter is as a business product or whether or not a certain billionaire is going to run it into the ground. Because how constitutional law comes to understand Twitter, and in fact, all social media platforms can shape the internet far more than one man, even the world's richest man ever could. So the question we are trying to answer is not what was Twitter or what is Twitter now that Elon Musk is in charge, but how does the First Amendment affect what Twitter does or the things people can and cannot say or do when they use it? Turns out the founders didn't put a provision in the Constitution answering that question explicitly. Geez, guys. So it takes some work to figure out how the words in a document over 200 years old apply to the app that you have on your phone. Lots of great legal minds are doing that work right now, and I'm going to chat with many of them on this show. But first, who am I? Why? Thank you so much for asking. I'm an assistant professor at Stanford Law School and a former senior research fellow at the Knight Institute."But wait,"" I hear you say, I can't quite put my finger on it, but there's something about the way you sound that makes me wonder if you are the right person to be talking about the First Amendment." Good point. I am in fact Australian, good day, but I've spent the last half decade getting my doctorate studying online speech regulation and have learned a bunch about what both platforms and governments can and cannot do to control what people say online. So with all of that wind up, let's jump in. Our story starts with perhaps the most famous Twitter handle ever, @RealDonaldTrump. From this account, the former President of the United States tweeted more than 25,000 times during his presidency. That's an average of around 18 tweets a day, and some of those tweets were really important. He announced policy.

ABC News Newscaster:

Please be advised, the United States government will not accept or allow transgender individuals to serve in any capacity in the US military.

Evelyn Douek:

He hired and fired staff.

NBC News Newscaster:

Mike Pompeo, director of the CIA will become our new Secretary of state. He will do a fantastic job.

PBS Newscaster:

Effective immediately, Chris Krebs has been terminated as director of the Cybersecurity and Infrastructure Security Agency.

Evelyn Douek:

And he threatened nuclear war.

The Ring of Fire Newscaster:

North Korean leader, Kim Jong Un just stated that the nuclear button is on his desk at all times. Will someone from his depleted and food-starved regime please inform him that I too have a nuclear button, but it is a much bigger and more powerful one than his, and my button works.

Evelyn Douek:

And some of Trump's tweets were less important.

WCCO - CBS Minnesota Newscaster:

Lowest rated Oscars in history. Problem is we don't have stars anymore except your President.

CNN Newscaster:

If a restaurant is dirty on the outside, it is dirty on the inside. Despite the constant negative press, covfefe.

Evelyn Douek:

And he also did other unprecedented things on Twitter.

Nick Pappas:

I'm Nick Pappas. I'm a standup comedian and a comedy writer.

Holly Figueroa O'Reilly:

My name is Holly Figueroa O'Reilly. I used to be a political consultant and now I run a bakery.

Philip Cohen:

My name is Philip Cohen. I'm a sociologist and demographer at the University of Maryland.

Nick Pappas:

And I was blocked by Donald Trump on Twitter.

Holly Figueroa O'Reilly:

And I was blocked by Trump on Twitter.

Philip Cohen:

And I was blocked by President Trump.

Evelyn Douek:

Now most of the time if someone blocks you on Twitter, there's not a lot you can do about it. You can huff and puff, and tweet angrily, but if that person doesn't want to unblock you, you really can't make them. It turns out though, if that person is the President of the United States, things might be a little different. After all, as you just heard, the President wasn't just using his account troll people. Well, at least not all of the time. Some of the stuff President Trump was putting out on Twitter were statements about policies and his official duties, things that affect citizens of the United States, and so many of those citizens like Nick, Holly and Philip who we just heard Trump had blocked, had a vested interest in knowing what their President was saying.

Nick Pappas:

I felt that it was important to keep tabs of what he was talking about, and he started to tweet a lot more.

Holly Figueroa O'Reilly:

It started becoming a coping mechanism. I had zero say in what was happening. I didn't have any other outlet.

Philip Cohen:

But offered this opportunity to just jump in and reply to him. I compared it to carrying a protest sign, just an opportunity to give my opinion, but a lot more people saw it.

Evelyn Douek:

So it didn't really seem fair that the President could pick and choose which of his constituents could see and engage with his public announcements. But fairness isn't really the question. The question is was it against the law? And it turns out that question is actually hard to answer, so the intrepid lawyers at the Knight First Amendment Institute brought a path breaking case to find out, boldly going when no lawyer had gone before.

Katie Fallow:

If I say something really stupid or mumbled, can you guys edit that out?

Jameel Jaffer:

All right. I'm Jameel Jaffer. I'm the director of the Knight Institute.

Katie Fallow:

I'm Katie Fallow, I'm senior counsel at the Knight Institute.

Evelyn Douek:

Jameel and Katie are the lawyers that led the Knight Institute's case against Trump, and you wouldn't exactly say this was the case they were expecting to bring as a fledgling institute.

Jameel Jaffer:

When I took the job at the Knight Institute, I didn't know yet that Trump was going to be elected President.

Katie Fallow:

At the time when Trump was elected President, I think I had set up a Twitter account and I tweeted once at some corporation that I wanted better customer service from, but I was not familiar with Twitter at all. I really thought, who wants to read, at the time, 140 character thoughts? That's ridiculous.

Evelyn Douek:

The Knight Institute was founded in 2016 to defend and promote the freedoms of speech in the press in the digital age through strategic litigation, research and public education. Let's just say 2016 was an interesting time to be setting up an institute working out how to defend free speech and a free press. And at the start, Jameel and Katie were just like the rest of us trying to work out what would happen when the, shall we say, somewhat unorthodox candidate, Donald J. Trump, became President.

Katie Fallow:

At the end of 2016 there was a lot of speculation about is Trump the President going to be different than Trump the candidate? Is he going to put away childish things and just use the official White House communications channels, etc? As we all well know now, that was not the case.

Jameel Jaffer:

I didn't recognize right away the significance of that account. It didn't occur to me that a social media account could become a President's principal way of communicating with the public, and it certainly didn't occur to me that a President would use a social media account to engage in the work of his office. I think in retrospect, we probably shouldn't have been surprised. If you think back to FDR's use of radio with his fireside chats-

Franklin D. Roosevelt:

You must not be stampeded by rumors or guesses.

Jameel Jaffer:

-Or speaking live JFK and TV.

John F. Kennedy:

Evening, my fellow citizens.

Jameel Jaffer:

Whenever there's a new medium of expression, public officials and Presidents find ways to exploit those new technologies.

Evelyn Douek:

And in this respect at least, social media has been no different.

Jameel Jaffer:

I think it's probably fair to say that most public officials use social media as their principle means of communicating with their constituents, that if you want to know what your public official is thinking, the obvious way to learn it is to go on social media and follow that person's account. And social media has not completely, but to a very significant extent, displaced the kinds of offline forums that are the paradigmatic spaces in which people learn from and share information with their public officials. So instead of town hall meetings, or city council meetings, or school board meetings, a ton of information is exchanged on social media.

Evelyn Douek:

So politicians using any platforms they can to communicate with people is nothing new, but every time a new platform comes along, the communication it enables is a little bit different. The thing that's distinctive about social media is well, that it's social, it's interactive. The President was not just broadcasting out to the world from a megaphone, but anyone could reply to, comment on, amplify, endorse, criticize, or laugh at the President's tweets. That's what Nick, Holly and Philip were doing. Well, at least before Trump blocked them.

Philip Cohen:

So I'd made a meme that compared him to narcissists, and I used pictures of his gold plated apartment in New York, and I made one that where he looked like a cyclops.

Holly Figueroa O'Reilly:

I would just say, "You should stop tweeting. You're not good at it," that kind of thing.

Nick Pappas:

I would try and do a comedic bent on the sometimes salacious things that he would tweet.

Evelyn Douek:

None of this may be exactly the platonic ideal of the ancient Agora of Athens, but it was definitely within the bounds of normal core political discourse.

Philip Cohen:

It was not harassment in the sense of it wasn't threatening, wasn't intimidating. I didn't use profanity, I didn't talk about his personal life beyond the parts that were public. I was heckling. I was basically heckling him in public.

Evelyn Douek:

And because Jameel and Katie are litigators trying to work out how best to protect free speech in the digital age, they started thinking about what the First Amendment might have to say about the fact that the President was blocking people from interacting with him online.

Katie Fallow:

In May of 2017, we started seeing reports on Twitter of people who said that they had been blocked by the President from his @RealDonaldTrump account.

Nick Pappas:

I remember the exact tweet that got me blocked by Donald Trump. He was tweeting about how his Muslim ban was struck down by the courts, and he had said in the tweet that the court should be protecting us. And I said, "Trump is right. It is the court's job to protect us. That's why they're protecting us from you."

Holly Figueroa O'Reilly:

The thing that got me blocked was it was right after he was at the Vatican with Melania, and he was standing there with the Pope, and there's just iconic GIF of the Pope smiling broadly at whoever was with him, and then looking over at Trump and being like, "Oh, this fucking guy," like, "Ugh." And I replied with that and I said, "This is what the whole world thinks about you."

Philip Cohen:

The tweet I sent right before I noticed I was blocked was a big picture of him on a black background making his scowly face, and it just said, corrupt, incompetent, authoritarian. And then there are the policies and the tagline resist.

Nick Pappas:

And then he blocked me right after that.

Holly Figueroa O'Reilly:

And then immediately blocked.

Philip Cohen:

And all of a sudden I couldn't see his replies, and I realized I'd hit the end of the road for then.

Evelyn Douek:

So Nick, Holly, and Phillip were about to become plaintiffs in a lawsuit challenging Trump's blocking of them as unconstitutional. Here's Katie again.

Katie Fallow:

What made the case attractive to us was while it did involve the most powerful government official in the country, the principles that we hoped to establish in the case would apply to public officials from all across the political spectrum and at every level of government, from local to state, to members of Congress and the President.

Jameel Jaffer:

We were just throwing ideas around and somebody said, "Why isn't this a public forum under the First Amendment?" And initially it was more of an intellectual exercise, and only over time became a real idea.

Evelyn Douek:

So the Knight Institute sent a letter to the White House saying they were lawyers representing people who'd been blocked by the President on Twitter because of their political comments.

Jameel Jaffer:

When we sent that letter, we represented people who had participated in political speech in the most civil way. There was no argument that anything they had said had taken them outside the protection of the First Amendment. Even if they hadn't been civil, they probably still would've been within the First Amendment's protection, but we were really in the core of the First Amendment's protection here, and we said to the White House we think this is unconstitutional and that the President should unblock these people from this account because the account is a public forum under the First Amendment. That was the first time we set out our legal theory. It was just a couple of pages. And one result of the letter is that dozens of other people who've been blocked came to us and said, "I've been blocked too, and here's the speech that I was blocked for." And the letter did a lot of the work in getting the word out about this possible litigation.

Evelyn Douek:

And it wasn't just First Amendment lawyers and academics that were taking notice.

Katie Fallow:

In July or August, 2017, I was on the subway pre-pandemic, packed in, no masks, also quite hot, commuting to work, and I got an email that said, "Hi, Katie. It's Rosie O'Donnell. Give me a call." And I thought it was a prank, and so I went through this whole process to confirm that it was in fact Rosie O'Donnell, and it was, and we ended up having a nice chat. And the reason why she was contacting me was she had been blocked by Donald Trump.

Jameel Jaffer:

He did block a lot of celebrities though, right? He also blocked Chrissy Tiegen. Remember that?

Katie Fallow:

Yes.

Jameel Jaffer:

And Stephen King.

Katie Fallow:

Stephen King. I don't know why.

Jameel Jaffer:

I think for a particular category of celebrity, it eventually became something of a badge of honor to have been blocked by President Trump.

Katie Fallow:

I have a long-standing interest in celebrity gossip and the First Amendment, so I was in my happy spot.

Evelyn Douek:

Well, we all need something to get us up in the morning, but let's take a step back. What possible argument could there be that the Constitution prevents the President from blocking people on Twitter? This was a novel argument, and there were lots of reasons. It seemed pretty off the wall at the time. You don't have to be a First Amendment expert to know that there wasn't a lot of case law on whether a person had a constitutional right to see a Twitter feed. I myself was pretty skeptical. I remember going to coffee with a friend that works at the institute, Ramya Krishnan, and saying something like, "Yeah, that's a bit of a long shot, right?" To which Ramya gently responded, "No, I think we have a pretty good case." Spoiler alert, I owe Ramya a drink. But in my defense, there were lots of reasons to be skeptical of the legal argument. The biggest one was the words of the First Amendment itself. Let's take a read."Congress shall make no law, dot, dot, dot, abridging the freedom of speech." That is the First Amendment only constrains Congress, and as the Supreme Court has interpreted it, other government actors,. What this means is that with some very limited exceptions, the government can't pass laws telling you to shut up, but when it comes to private citizens, or private businesses, or your mom, they can tell you to shut up all they like. The New York Times does not have to publish your op-ed, but the government has to allow you to speak in certain public places. Facebook can take down COVID misinformation, but the government can't force it to, and except in some limited circumstances, it can't criminalize spreading lies. That's why whenever you hear cries of First Amendment, when someone is banned from Twitter, or YouTube, or Facebook, you'll hear the experts saying, "The First Amendment only applies to the government, dummy." Social media platforms are private companies, and so you don't have First Amendment rights to post on them. The Supreme Court has said again and again that when it comes to speech on private property or distributed by private actors, the First Amendment protects the right of those private actors to choose what they want to host. It doesn't constrain them from taking stuff down as it would a government actor. So to argue that people had a First Amendment to reply to @RealDonaldTrump was a really novel claim. But the thing is, Twitter is also a really novel environment.

Jameel Jaffer:

Most of the big principles that established the First Amendment as we think of it today, we're established in the 1960s and 70s long before the internet, social media, smartphones, all of the challenges that we're thinking about today. And even if we still think that the Supreme Court got it right in these big cases from the 1960s and 70s, there's still a whole host of difficult questions about how to apply those principles to new technology, new business models, new social practices.

Katie Fallow:

A lot of times when new forms of technology come up, like video games or like social media, there is a tendency by some people, particularly government officials to say, "Oh, this isn't really free speech. This is just a frivolous form of entertainment, or it's a totally different creature, and these old structures under the First Amendment don't apply." But often when you actually start looking at the function that the technology or form of communication plays, then you can start mapping the First Amendment structures and principles and protections onto this new technology, and I think that's important to do so,.

Evelyn Douek:

How do we map existing First Amendment doctrine onto new social media platforms? Well, we have to go back to first principles, and here a major question is what is a public forum? And this isn't just what you might think of as a public forum in the colloquial sense, it's not any place in public that people gather to talk. The definition for the purposes of the First Amendment is much narrower and much more technical than that.

Katie Fallow:

Well, from the First Amendment sense, well, the Supreme Court has defined a public forum to be when the government owns or operates a space, and that space could be a physical space ranging from the parks, and sidewalks, and streets, which are considered traditional public forums, to a city hall room, to what the Supreme Court is called a metaphysical space, meaning like a funding stream or in our case, a social media account. So when the government owns or operates a space and opens up that space to allow members of the general public to speak in that space, that's considered a public forum.

Jameel Jaffer:

Most public forum cases in the past have involved public property rather than private property, and this case is different than most of the others in that it involves a forum established on private property, the private property here being Twitter's platform.

Evelyn Douek:

Hold up. What exactly did Jameel just say?

Jameel Jaffer:

This case is different than most of the others in that it involves a forum established on private property, the private property here being Twitter's platform.

Evelyn Douek:

I want to underline this. Jameel was saying that the forum was established on Twitter's private property, not that the forum was Twitter. The argument was that @RealDonaldTrump was creating a public forum when he tweeted and created a space in which people could reply, even though the platform on which he was doing it was privately owned. And in making that argument, exactly how Twitter works as a platform, the fact that there are tweets and replies to tweets and functions like blocking, all those details really matter. Now, while I am sadly very well placed to give you a masterful rundown on how Twitter works in excruciating detail, I'm not going to subject you to that. Here's what you need to know. When someone posts from their public Twitter account, let's say @RealDonaldTrump, just to pick a random example, they create a tweet which anyone can reply to. And if a person replies and has their account set to public too, then anyone else can see her tweet and reply to that as well, and so on and so forth. There's some other details like liking, and retweeting and whatnot, but we can put those aside for now. The important thing is that if the original poster, @RealDonaldTrump block someone, then that person can't see his tweets and also can't reply to them.

Jameel Jaffer:

This case was about blocking. The President blocked our clients, and the consequence of blocking them was that they couldn't participate anymore in the common threads associated with his account. They couldn't follow his account, they couldn't get his statements,

Evelyn Douek:

And unsurprisingly, the plaintiffs thought this sucked.

Philip Cohen:

It was bad. I was distressed by it, not because it hurt my feelings or whatever, but just the idea that he could do that, and the realization that however small this contribution to the political moment was that I was making. I had those analytics numbers and it was some thousands of people seeing those, and all of a sudden they couldn't.

Holly Figueroa O'Reilly:

It was a slap in the face. You're President, the guy who runs the country.

Nick Pappas:

I did feel left out. I did feel like power had been taken away from me. I did still want to respond to the President. I thought that in a way it was a civic duty to respond to the President, and I wanted to make sure that there were still voices of dissent underneath his tweets.

Evelyn Douek:

So here are these very serious First Amendment lawyers fighting about fundamental building blocks of democracy and public discourse, and trying to explain to a judge with pictures and labels how a tweet works.

Katie Fallow:

Because I think if you're not familiar with Twitter, you may not even know what a little heart means.

Evelyn Douek:

It means like, by the way.

Katie Fallow:

Exactly.

Evelyn Douek:

Breaking down for the judge how the technology worked helped explain exactly what had happened in this case, but it also was important for making different kinds of arguments.

Katie Fallow:

It allowed us to draw the comparisons by analogy between a Twitter account and a traditional in real life town hall, and making the argument throughout the little litigation of, this is a virtual town hall where President Trump as the account holder, he's speaking at the podium at the front of the room, and the people who follow him and are able to reply back to him are like audience members in a traditional town hall.

Jameel Jaffer:

But there's this question, is blocking kicking somebody out of the town hall or is it more akin to preventing them from asking a question at a town hall? Those details about the technology and the details about how precisely the President was using technology turned out to be really, really important to the eventual outcome in the case.

Evelyn Douek:

So the important point, or perhaps more appropriately, TLDR, is that Knight was not arguing that all of Twitter was a public forum. It was arguing that when the President tweeted, he was creating a public forum, and in that space, the President as a government actor was subject to the constraints of the First Amendment. Sure, Twitter was private property, but even when on Twitter, Trump was part of the government and the First Amendment constrains how the government can limit people's speech.

Jameel Jaffer:

I don't think ultimately you can come to the conclusion that just because this is on private property, the First Amendment doesn't bind the government. And I'll just give you one very simple example of what the problem would be with a rule like that. If you drew a hard line between public property and private property, then government actors could evade the First Amendment's requirements just by moving their forums from city halls across the street to the Hilton, and suddenly you're no longer bound by the First Amendment. You can kick out whoever you want to from that city council meeting, or school board meeting, or town hall. And it can't be that the First Amendment can be evaded that easily. The government would be able to distort public discourse. It would be able to host its public forums in spaces in which it could exclude critics, and that would have consequences not just for the critics who were excluded, but also for everybody else in those meetings who suddenly wouldn't be able to hear disagreement with the government's policies.

Evelyn Douek:

But unless you've been living under a rock for the past four years and have somehow missed the raging political debates over content moderation, you would know that Twitter takes down speech all the time, as in thousands of tweets a day, most of which would be protected by the First Amendment, and no one has any legal right to stop them, but Knight argued it doesn't matter what Twitter does. All that matters is what Trump did.

Jameel Jaffer:

Even if there are complicated questions about what it means when Twitter engages in viewpoint discrimination, it's not a complicated question to ask, can the government engage in viewpoint discrimination in a space which it has thrown open for expression by the public at large? That seems like a relatively straightforward First Amendment problem.

Evelyn Douek:

When Jameel says viewpoint discrimination, he's talking about the idea that the First Amendment generally prohibits the government from picking between the ideas and viewpoints that it likes and those that it doesn't.

Jameel Jaffer:

If the First Amendment means anything, it means that government actors operating in their official capacities can't discriminate on the basis of viewpoint.

Sometimes the government can regulate speech, but usually only if it's agnostic about what the speaker is saying. Let's say the government says you can't yell in certain places after 11:

00 PM. That's okay and probably a good thing, but if the government said you can't yell these specific words, that would almost certainly be unconstitutional.

Jameel Jaffer:

Just imagine what the world would look like if you didn't have the rule that government officials who use their social media accounts for official purposes can't discriminate on the basis of viewpoint. Government officials would exclude dissent, suppress dissent from these forums. The people who wanted to disagree with government policy wouldn't be able to do that in these forums, and everybody else who remained in the forums wouldn't hear that disagreement. The forums would be converted into echo chambers. Government officials would be shielded from public criticism of their policies and their decisions, and anybody who cares about the integrity of public discourse should see the problem with that right away. We just had to convince the courts that those principles apply with the same force to this new technology as they do offline.

Evelyn Douek:

When thinking about what makes government action unconstitutional, there's another important principle at play here, and that's the reason the President blocked people. It wasn't because these people were making threats on his life or spamming him with ads for hair growth serums or spray tan. Instead, he was blocking them because he didn't like being criticized.

Nick Pappas:

That's enough. Put down the mic.

Evelyn Douek:

So that was the argument Knight ran with, and at first, Knight just waited for the White House to respond to their letter asking nicely for the President to unblock their clients. Okay. It wasn't that nicely. They said that what the President was doing was unconstitutional, but it was done in nice, polite, loyally language, and they assumed that the President would just unblock people because really amongst millions of followers, did the President really care?

Jameel Jaffer:

This is just pure speculation, but my guess is that there were Justice Department officials who were begging President Trump or begging his close advisors to reverse course from the beginning.

Evelyn Douek:

And obviously, Trump would listen to his advisors, right? So the team sent the letter and waited, and waited, and waited, but nothing happened. So they did what lawyers do. They went to court.

Court Baliff:

Judge of the United States Order Appeals for the Second Circuit.

Katie Fallow:

We filed our complaint in mid July, 2017-

Court Baliff:

We'll hear argument in Knight First Amendment versus Donald J. Trump.

Katie Fallow:

-Making the argument that as a result of President Trump's actions, the plaintiff's First Amendment rights are being burdened.

Lawyer in Court:

The at will Donald Trump account issue in this case is a Twitter account created by Donald Trump before he became President that he has control over independent of the presidency,

Evelyn Douek:

Things then moved pretty quickly by legal systems habits. Jameel and Katie appeared before the District Court in March, 2018, and by May they had a ruling. The district Court accepted the Knight Institute's novel argument and ruled that President Trump's blocking of the plaintiffs was unconstitutional. At that point, the plaintiffs did get unblocked.

Nick Pappas:

I did get right back on and start tweeting again. I tweeted directly at the President as soon as his next tweet came out, which wasn't too long.

Holly Figueroa O'Reilly:

I think I typed LOL a lot, pretty much laughed at it.

Nick Pappas:

And I continued to reply to his tweets like I did before, because again, it just felt like something that I felt like I needed to do.

Holly Figueroa O'Reilly:

The whole purpose of being unblocked was to do exactly that. And the victory was the legal victory in the principle. It's not that we solved the problem politically because I was back in Trump's feed, but it was certainly, the principle was really important, and I was glad to have it recognized publicly.

Evelyn Douek:

But the government kept arguing the case even when the US Court of Appeals for the Second Circuit affirmed the District Court's holding in a three zero decision, and they kept arguing it after that court denied rehearing the case by a vote of seven to two. In fact, the government went all the way to the Supreme Court asking them to hear an appeal, but the court eventually dismissed the case is moot because well, Donald Trump was no longer President. And that's where we stand a case that had started seemingly as a long shot with many people thinking this was obviously a bit of a crackpot theory. That case won in the courts. As it happens, there are people who still think it's a bit of a crackpot theory and who are worried about how the case might be misused. We'll hear more from them in episode two, but courts have been applying the principle from Knight v. Trump consistently in the years since it was decided. Now, you might be forgiven for asking why you should care about this case at all four years later. Here's how the plaintiffs Phillip Cohen and Nick Peppers think about it,

Philip Cohen:

Even though some of the Trump generated excitement has gone off Twitter, the rolling town hall, public square part of it goes on for better or worse. I've decided I'm not going to give up on it because we have to use whatever tools we have. But I think the process both gave me a childlike glee and excitement about the Constitution, which is nice to have, but also a grownup cynicism about just how precarious the infrastructure for our political discourse is.

Nick Pappas:

And I think that shows just how important this case is, that it's not only Donald Trump, it's every other politician out there who is using Twitter with their government accounts or using their personal accounts in official capacities.

Evelyn Douek:

So the case still matters because it established a general principle about how the First Amendment applies to government social media accounts, and that principle has since been applied in a wide variety of contexts, including other platforms like Facebook and Twitch, and to other government actors like Alexandria Ocasio-Cortez, and the Army and the Navy. But the case also matters because it is a first step in this broader project of trying to work out what the heck social media is as a matter of constitutional law. And that project, as you'll hear throughout this series, is having a moment right now with lawyers, academics, courts, business executives, and citizens wrestling over the role of these platforms in our public sphere.

Speaker 1:

What? What? What? What? What is... Twitter?

Evelyn Douek:

In some ways, Knight v. Trump is pretty limited. It doesn't establish any broad principles about social media more generally or how the government might regulate the platforms themselves. Those questions are live issues in cases before the courts, including the Supreme Court right now. Knight v. Trump doesn't answer those questions, but it does establish that there are First Amendment rights at stake on these platforms in certain cases, and that the First Amendment isn't just irrelevant in online spaces provided by private companies. And that, that's the start.

Jameel Jaffer:

There are a whole host of other First Amendment questions that social media technology presents that I think are much more difficult. One set of questions is coming up now because states have begun passing legislation meant to regulate social media, and the question there is, to what extent does the First Amendment limit the ability of government to regulate this new medium of expression? And that's a really, really important question because so much public discourse now takes place on social media, and those are the conversations that are most important to democracy, most important to self-government, most important to our collective ability to hold our officials accountable for their decisions, our collective ability to change government policy. And yet, those conversations are hosted on social media platforms that are owned by private entities that have a huge amount of authority over what can be said, who can speak in those spaces, and maybe even more important, which ideas get heard.

Evelyn Douek:

This episode of Views on First is co-written, produced, and edited by Merrin Lazyan and hosted by me, Evelyn Douek, with production assistance and fact checking from Kushal Dev. Candace White is our executive producer. Audio and production services are provided by Ultraviolet Audio with production and scoring by Merrin Lazyan , and mixing and sound design by Matt Boynton. Views on First is brought to you by The Knight First Amendment Institute at Columbia University and is available wherever you get your podcasts. Please subscribe and leave a review. We would really love to know what you think. To learn more about the Knight Institute, visit our website, knightcolumbia.org, or follow us on Twitter at @knightcolumbia, or on Mastodon by the same handle. I'm Evelyn Douek. Thanks for listening.