As leaders of countries worldwide increasingly use social media platforms to interact with citizens, the ambit of freedom guaranteed to their digital followers has become a serious issue.
The United States Court of Appeals for the Second Circuit this week held that President Donald Trump, whose Twitter account has more than 50 million followers, cannot block a follower’s account on the ground of disagreement.
While American standards of free speech cannot be compared to what is guaranteed under the Indian constitution – as the latter, unlike the former, is subject to reasonable restrictions – the ruling in Knight First Amendment Institute At Columbia University v Donald J. Trump should make Indian users take notice and draw appropriate lessons.
In India, Union ministers like Sushma Swaraj have blocked several Twitter accounts over disagreements, while government organisations like the Unique Identification Authority of India (UIDAI) and its CEO A.B. Pandey have also done the same for several critics.
Although Indian courts are wary of citing American legal precedents because of the inherent historical and constitutional differences, this ruling is amenable for adoption, because none of the reasonable restrictions mentioned under Article 19(2) would come in the way.
The US Court of Appeals for the Second Circuit has held that blocking of a follower’s account would prevent him or her from viewing , retweeting, replying to and liking the president’s tweets. This would exclude the individual followers from a public forum, something the US First Amendment – guaranteeing free speech in the US – prohibits.
In the case, plaintiffs Rebecca Buckwalter, Cohen, Figueroa, Gu, Neely, Papp and Pappas were social media users who were blocked from accessing and interacting with Trump’s Twitter account because they expressed views he disliked. The Knight First Amendment Institute at Columbia University is an organisation alleging a right to hear the speech that the plaintiffs would have expressed had they not been blocked.
The plaintiffs sued Trump along with certain White House officials, contending that the blocking violated the First Amendment.
Buckwalter is a fellow at the liberal-leaning Center for American Progress. Her account was blocked after she responded to a tweet by Trump on June 6, 2017, in which he accused various mainstream news media outlets of being “fake news” media and said he would not have won the White House if he relied on them. She replied to Trump: “To be fair you didn’t win the WH: Russia won it for you”.
The United States District Court for the Southern District of New York (Buchwald, J.) found that the “interactive space” in the account is a public forum and that the exclusion from that space was unconstitutional viewpoint discrimination. The US Court of Appeals for the Second Circuit agreed and affirmed the judgment of the District Court.
The US Court of Appeals for the Second Circuit also found that the government’s contention that the president’s use of the Twitter account during his presidency is private flounders in the face of the uncontested evidence in the record of substantial and pervasive government involvement with, and control over, the Account.
The court underlined that Trump’s Twitter is registered to “Donald J. Trump, 45th President of the United States of America, Washington, D.C.”
Trump himself has described his use of the account as “MODERN DAY PRESIDENTIAL”. The court also cited the White House social media director describing Trump’s Twitter account as a channel through which he communicates directly with the American people.
“In sum, since he took office, the President has consistently used the Account as an important tool of governance and executive overreach. For these reasons, we conclude that the factors pointing to the public, non-private nature of the Account and its interactive features are overwhelming,” the court held in its judgment.
Because the president acts in an official capacity when he tweets, we conclude that he acts in the same capacity when he blocks those who disagree with him, the court reasoned. The President excluded the Individual Plaintiffs from government-controlled property when he used the blocking function of the Account to exclude disfavoured voices.
The court was clear that once it is established that the president is a government actor with respect to his use of the account, viewpoint discrimination violates the First Amendment.
Conceding that the individual plaintiffs have no right to require the president to listen to their speech, the court reasoned that blocking of users by the president could curtail plaintiffs’ ability to converse on Twitter with others who may be speaking to or about the president. While the president is certainly not required to listen, once he opens up the interactive features of his account to the public at large, he is not entitled to censor selected users because they express views with which he disagrees, the court held.
Strangely, the government argued before the court that individual plaintiffs are not censored, because they can engage in various “workarounds” such as creating new accounts, logging out to view the president’s tweets, and using Twitter’s search functions to find tweets about the president posted by other users with which they can engage. But this argument went against the government, because the court interpreted it to mean that the government concedes that these “workarounds” burden the individual plaintiffs’ speech.
The distinction between laws burdening and laws banning speech is but a matter of degree, the court observed. When the government has discriminated against a speaker based on the speaker’s viewpoint, the ability to engage in other speech does not cure that constitutional shortcoming, it explained.
Making a subtle distinction between the president’s government speech and his supervision of the interactive features of his Twitter account, which involves speech of multiple individuals, the court conceded that the First Amendment cover is unavailable to a Twitter user in the case of the former.
In the case of the latter, the contents of retweets, replies, likes and mentions are controlled by the user who generates them, and not by the president, except to the extent he attempts to do so by blocking, the court elaborated.
If the First Amendment means anything, it means that the best response to disfavoured speech on matters of public concern is more speech, not less, the court concluded.
RTI activists, who are keen to draw a parallel with the Twitter account of Indian prime minister Narendra Modi, can take note and file applications seeking details of the number of Twitter accounts blocked by the prime minister, if any, because of disagreement with their views.
In any case, the decision from the US is an invitation to Modi’s online critics to test his tolerance.