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Open season

WestWing-Bartlet-campaign-phone.pngIn the fantasy TV show The West Wing, when fictional US president Jed Bartlet wants to make campaign phone calls, he departs the Oval Office for the "residence", a few feet away, to avoid confusing his official and political roles. In reality, even before the show began in 1999, the Internet was altering the boundaries between public and private; the show's end in 2006 coincided with the founding of Twitter, which is arguably completing the job.

The delineation of public and private is at the heart of a case filed in 2017 by seven Twitter users backed by the Knight First Amendment Institute against US president Donald Trump. Their contention: Trump violated the First Amendment by blocking them for responding to his tweets with criticism. That Trump is easily offended, is not news. But, their lawyers argued, because Trump uses his Twitter account in his official capacity as well as for personal and campaign purposes, barring their access to his feed means effectively barring his critics from participating in policy. I liked their case. More important, lawyers liked their case; the plaintiffs cited many instances where Trump or members of his administration had characterized his tweets as official policy..

In May 2018, Trump lost in the Southern District of New York. This week, the US Court of Appeals for the Second Circuit unanimously upheld the lower court. Trump is perfectly free to block people from a personal account where he posts his golf scores as a private individual, but not from an account he uses for public policy announcements, however improvised and off-the-cuff they may be.

At The Volokh Conspiracy, Stuart Benjamin finds an unexplored tension between the government's ability to designate a space as a public forum and the fact that a privately-owned company sets the forum's rules. Here, as Lawrence Lessig showed in 1999, system design is everything. The government's lawyers contended that Twitter's lack of tools for account-holders leaves Trump with the sole option of blocking them. Benjamin's answer is: Trump didn't have to choose Twitter for his forum. True, but what other site would so reward his particular combination of impulsiveness and desperate need for self-promotion? A moderated blog, as Benjamin suggests, would surely have all the life sucked out of it by being ghost-written.

Trump's habit of posting comments that would get almost anyone else suspended or banned has been frequently documented - see for example Cory Scarola at Inverse in November 2016. In 2017, Jack Moore at GQ begged Twitter to delete his account to keep us all safer after a series of tweets in which Trump appeared to threaten North Korea with nuclear war. The site's policy team defended its decision not to delete the tweets on the grounds of "public interest". At the New York Times, Kara Swisher (heralding the piece on Twitter with the neat twist on Sartre, Hell is other tweeters) believes that the ruling will make a full-on Trump ban less likely.

Others have wondered whether the case gives Americans that Twitter has banned for racism and hate speech the right to demand readmission by claiming that they are being denied their First Amendment rights. Trump was already known to be trying to prove that social media sites are systemically biased towards banning far-right voices; those are the people he invited to the White House this week for a summit on social media.

It seems to me, however, that the judges in this case have correctly understood the difference between being banned from a public forum because of your own behavior and being banned because the government doesn't like your kind. The first can and does happen in every public space anywhere; as a privately-owned space, Twitter is free to make such decisions. But when the government decides to ban its critics, that is censorship, and the First Amendment is very clear about it. It's logical enough, therefore, to feel that the court was right.

Female politicians, however, probably already see the downside. Recently, Amnesty International highlighted the quantity and ferocity of abuse they get. No surprise that within a day the case was being cited by a Twitter user suing Alexandria Ocasio-Cortez for blocking him. How this case resolves will be important; we can't make soaking up abuse the price of political office, while the social media platforms are notoriously unresponsive to such complaints.

No one needs an account to read any Twitter user's unprotected tweets. Being banned costs the right to interact,, not the right to read. But because many tweets turn into long threads of public discussion it makes sense that the judges viewed the plaintiffs' loss as significant. One consequence, though, is that the judgment conceptually changes Trump's account from a stream through an indivisible pool into a subcommunity with special rules. Simultaneously, the company says it will obscure - though not delete - tweets from verified accounts belonging to politicians and government officials with more than 100,000 followers that violate its terms and conditions. I like this compromise: yes, we need to know if leaders are lighting matches, but it shouldn't be too easy to pour gasoline on them - and we should be able to talk (non-abusively) back.


Illustrations:The West Wing's Jed Bartlet making phone calls from the residence.

Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. Stories about the border wars between cyberspace and real life are posted occasionally during the week at the net.wars Pinboard - or follow on Twitter.

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