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HEFFNER: I’m Alexander Heffner your host on The Open Mind. When he joined us last year, Knight First Amendment founding director Jameel Jaffer discussed the inauguration of the Knight Institute at Columbia University, and explained how it would seek to defend freedoms of speech and press and democracy broadly in the digital age.
Today we hear further from the front lines of their critically important work: Knight Institute attorney and First Amendment litigator, Katie Fallow. Fallow has defended news outlets against defamation claims and filed numerous amicus briefs in the Supreme Court on free speech issues. Today we discuss the emerging threat as recent Open Mind guest Tim Wu asserted, of a potentially obsolete first amendment, whose rights demand to be re-sanctified in the digital age. We tackle the Knight Institute lawsuit filed last July, which contends that President Trump and his aides violated the First Amendment by blocking people from the realdonaldtrump Twitter account. Katie, welcome.
FALLOW: Thank you, it’s a pleasure to be here.
HEFFNER: You have taken charge of this Twitter case. What is its status right now?
FALLOW: Well right now our lawsuit is, we filed it in the southern district of New York in a trial court here. And… the judge invited the parties, the government and our side, to file briefs contending why we should be entitled to judgment on each side. So their cross motions for some re-judgment was what they call. And they are currently fully briefed. We have made our arguments on both sides, and we’re waiting for the judge to rule.
HEFFNER: And what are the potential next steps?
HEFFNER: Once the judge rules.
FALLOW: Yeah, well, so first of all, just to give a little bit of background on the…
FALLOW: Case. So we filed our lawsuit in July and we represent seven individuals who have been, from across the country—who were blocked from the President’s Twitter account. The @realdonaldtrump account. And we made claims that the blocking of these individuals violated the first amendment sort of for three reasons. First of all that it excluded our plaintiffs, our seven people, from a public forum that was created through the way that the President and his aides used the account. We also say that it violates the First Amendment because it denies them the right of equal access as everybody else, to his tweets, just because of their viewpoints, that they were blocked because of their viewpoints. And we also argue that it violates the right to petition for a right of grievances. Another point that we make in the lawsuit is that it affects the people who were actually blocked, meaning they no longer can access the Twitter account in the way that other followers can. But it also affects the right of people who read the comments of the @realdonaldtrump account, and it creates this danger that if you can block or exclude critics from your Twitter account, and you’re a public official, you can create a kind of echo chamber. So that’s, that’s the background. In terms of what we can expect next, we are, you know, we filed our briefs. We’re waiting for the judge to rule. She may hear oral argument in the case. The case does present a number of pretty novel First Amendment and other issues, primarily, the question of how you apply the First Amendment in the context of public officials’ use of social media accounts. The subsidiary question of, well what if they use an account that they, is in their name as opposed to the official @POTUS account, and some questions about Presidential immunity. So once she, Judge Buchwald rules, you know, what we’ve asked for is an injunction that would require the President and/or his aides to essentially unblock our plaintiffs.
HEFFNER: And to be clear, there are more than three accounts that have been blocked correct?
HEFFNER: You are only representing seven individual handles.
FALLOW: Right, we represent seven. We are, we are aware of at, at least, maybe a couple hundred. I mean we’re not keeping a…
FALLOW: An exact database but … you know, certainly we were contacted by a number of people both before and after we filed the lawsuit. And you know, again, I think it’s important to remember that the people that both that we represent and that we, who we hear about, the people who are getting blocked, are, you know, a professor, a medical resident, an activist, a lot of writers and journalists have been blocked from the @realdonaldtrump account. But it’s, it’s a lot of people who are sort of Joe and Jane American. It’s not, you know, celebrities. There are some celebrities that have been blocked, you know, including Stephen King and Rosie O’Donnell and … Chrissie Teigan. You know, so there are people who are more prominent. But I think an interesting thing about this case is the individuals we represent who aren’t otherwise, you know, celebrities, rose up enough in the comment threads in replying to the President’s tweets that, enough to be noticed. And at, that’s kind of an interesting point about how Twitter works. That if your comment is, is, gets a lot of attention, your reply is gonna be at the top. And they were sufficiently high enough that they got blocked.
HEFFNER: The argument that the government is presenting, is what?
FALLOW: So what the government has argued is a few things: first of all, they say that the First Amendment doesn’t apply at all here, and you know, sort of a basic, when you’re doing a free speech case, you look at has speech been restricted in some way, and so, yes, you know, their, their ability to comment in this … context has been restricted. And the other thing is, is what is, who, the entity that is restricting, is it the government? And it’s known as state action. Is there state action, because the First Amendment only applies to actions by the government. And that’s how it’s been interpreted. And so if a private individual, if I’m using Twitter and I block someone that, that person can’t sue me for violating their first amendment rights, because I’m not a government actor. So what the government is arguing is that this is just the President’s own personal Twitter account. He just uses it to say whatever’s on his mind and it’s not state action if you block someone. And that’s sort of their, that’s sort of their first line of defense, because then the First Amendment wouldn’t apply at all. And then they say… and then, they say, and even if it were state action, it’s his speech. It’s sort of, it almost, it seems intention, because it, meaning it’s his, it’s government speech. ’cause there’s a line of cases, and case law holding that, when the government is speaking, you know, the head of an agency or the President or a public official, they can say whatever they want and they don’t have to allow all views to be expressed. They can express their views. So it’s, it is kind of interesting, the government’s first making the argument of, oh this is not state action. But if it is state action, it’s government speech which seems a little bit intention…
HEFFNER: Are they asserting that it is his speech to block someone?
FALLOW: Yeah, that, that’s actually is another part of their argument, it’s sort of the second part …
HEFFNER: And they are blocking someone, they concede, they admit, on the basis of their viewpoints.
FALLOW: Right, right, and that’s something that you know, we, we’ve thought was surprising when we heard it. So the way that this case progressed is we filed our complaint and then the judge asked, invited the parties to file, basically agree upon the facts. You know, normally you might have trial, depositions, you know, exchange of documents. But the judge was say, I think this is just a purely legal case, so I want you to agree on just what is the record here. And so we worked with the government and we filed something in, in the court. And it has some interesting facts in it that the government admits to, and the first one is that President Trump himself blocked these individuals that we represent. That they were blocked and the government, you know, does not dispute that they were blocked based on statements they made criticizing the President in response to his tweets. … And I think it’s important to know if you don’t read, if you don’t read the stipulation, is that these, the, the kind of reply tweets that our plaintiffs made were not, you know, a lot of you know, you might think, oh they’re gonna be really harassing or obscene or something that’s vulgar but they’re not that at all. They really go to his policies or it’s a criticism of him as a, as a leader, you know, someone saying, you know, he tweeted something, oh that’s why I won the election. And one of our plaintiffs tweeted something back, well to be fair, you, you didn’t win the election. The Russians won it for you. I mean, it’s kind of, you know, pretty much completely on par with the give and take of political discourse. But, so that was another one of the big facts. And the other, major fact was the fact that he does have White House staff and his aid, and aides who help him administer the account. So it’s not just the President who’s doing this, but,
HEFFNER: Which then theoretically becomes a public utility, a public trust, a public institution, as opposed to what we know to be public Twitter handles, @theWhiteHouse or @DOJ. And I was asking you earlier if the government was making the argument that these are the forums where…
HEFFNER: The people in effect have an opportunity to tweet without fear of being blocked.
HEFFNER: But they, they, it doesn’t sound like they’re asserting that point yet. That would be a reasonable argument.
FALLOW: Yeah, they haven’t, they haven’t come out and said that as, as directly. I mean basically what they argue is, yeah, there are the @POTUS and the @whitehouse.gov accounts, or White House accounts, which are the pre-existing Presidential or White House Twitter accounts. And they don’t seem to be disputing that there would be state action if someone blocked a, a follower of @POTUS. And so what they are arguing is, because this is his pre-existing personal account, then it’s almost as a matter of law, it can’t be subject to the First Amendment because it’s different from the @POTUS and the @whitehouse. Our argument is, you need to look at this from a functional perspective, not a formalistic perspective. So that, just as if, you know, a public official were to hold a town hall in a country club, or in a private auditorium, you wouldn’t say, well then that’s outside the bounds of the First Amendment. You would say if a government person, official, is using this space, and to conduct the business of governing, then they are bound by the rules of the Constitution.
HEFFNER: And that’s a real question, because on the one hand the President will tweet his fantasies of barring transgender from entering the military, and then the Secretary of Defense will overrule him. So in effect there is some fairy tale element to his Twitter account and the realization of propositions on that account.
FALLOW: That’s true. I mean, it’s interesting how he, I mean it is very… in it, you know, from an intellectual stand point it’s interesting how he’s used this account and the way that it’s treated and the legal effect it might have does seem to be evolving in kind of real time. I mean, you know, I think there was a lot of speculation a year ago about, is he gonna still use his Twitter account? In what way is he gonna use it? And obviously in our lawsuit we have the government saying, oh he’s not using at, in an official way.
HEFFNER: On the other hand, the bans were promised and enacted. It, they, they began,
HEFFNER: As tweets and that became government policy…
HEFFNER: First, second and third iteration.
FALLOW: Yeah, and, and our view is, as this case has progressed since just June or July when we first started looking at it. There’s just more, and more evidence that he is using this as an official account. He announced for the first time that he was appointing a new FBI director using this @realdonaldtrump account. As you mentioned, he announced the ban on transgender, you know, eh, no, no longer allowing transgender individuals to serve. And there was reporting that people, the people in the pentagon were learning that for the very first time through his Twitter account. And he’s used it on a number of occasions to make formal policy announcements for the first time. So I think he’s… he’s really just choosing to use it as the first line means of communication with the constituents. And you can see courts, federal agencies, and the Department of Justice itself, referring to his statements on Twitter as the official statements of the President of the United States and as having legal effect. So …
HEFFNER: And meanwhile, in a senate subcommittee on the malevolent influence of bots in the 2016 campaign, Lindsey Graham, senator from South Carolina, quotes the President from his 60 Minutes interview, he wouldn’t be here without Twitter. So the active campaigning and then governing would not have been possible, and that, now to invoke our friend Tim Wu, where is the case law here? In terms of differentiating between a follow, a like, in this case, a follow versus blocking, or a statement on Twitter, a tweet, versus a block… how are you defining these digital movements as speech or counter speech or not speech at all?
FALLOW: Right, I mean it’s very interesting, and the courts are grappling with this now, or will very soon in the context of our case and others. I mean I think… there is a tendency, when new forms of communication come around for many people to say oh well this is totally different than old forms of communication and so the pre-existing rules don’t apply. And I think particularly with a respect to the First Amendment, it’s important to resist that eh, urge to the extent that you can. And… the reason why is because we want to preserve free speech in the digital age, and as we have new forms of communication. And the Supreme Court, just this summer, really emphasized that in very strong terms in this Packingham case, which involved, you know, the right of access of criminal offenders to Facebook. But what they said there is, that you actually have to apply the First Amendment with full force to these new kinds of communication. So the way that we see this, I think the best analogy here, and I’ve mentioned it already is, is a town hall. So in essence, when the President is speaking through @realdonaldtrump, he is, in essence, standing at a podium in front of a vast audience of tens of millions or some amount of millions of followers. And he is giving important government information and describing the government’s positions. And then that audience is able to respond, just as if in a town hall and you had a city council member talking about the workings of the government, and then allowing the members of the community to stand up and say their peace, and discuss it amongst themselves within that, you know, town hall. And so we’re, our argument is, this is essentially virtual or digital town hall, of a, of a vast scale. And just as in the traditional town hall, you can’t have the city council member throw out someone, because they’re a critic or they’re dissenting, you can’t have the President blocking people on Twitter be, just because they criticize him.
HEFFNER: All true, but in reality, there are so many ticketed town halls now, for which you have to RSVP.
FALLOW: Well I think that might be different. I mean, I’d have to know, eh. In there, there are campaign style town halls, where maybe in that, in that case you’re, the person is acting as a candidate for political office, not as in a, in a…
HEFFNER: We would hope but,
FALLOW: Yes, well right.
HEFFNER: The director of the Town Hall Project, Jimmy Dahman, tracked these and,
FALLOW: OK, oh OK.
HEFFNER: In response to… the healthcare and tax reform legislation, senators in vulnerable states and districts…
FALLOW: Oh I see what you’re saying, yeah.
HEFFNER: Were attempting to do the very analogous block,
HEFFNER: In person. So it’s happening digitally and in person. And I don’t know if that gives you further ammunition to make your case.
FALLOW: Absolutely. I mean I think, and I think they dovetail. Because if you’re gonna ticket, if you could just say, well I only have 100 tickets, but you give it to everybody regardless of their viewpoints, maybe that’s OK. I mean you have to depend on the circumstances. But if you said I’m only gonna give it to Democrats, you know, I’m, you know, I’m the mayor of this town. I’m only gonna give the tickets to the town hall to Democrats, that would be a first amendment violation. And I do think that you’re seeing, I mean it’s important to notice, to note, that this issue about blocking, and constituents from social media accounts is not limited to the President. There are other public officials across the country at every level of government that have also done it, and I also think that that is a problem, especially when you have people, you hear all this, you know, the news reporting of Congress people not having actual in person town halls, or limiting access to it. So this becomes a very, Twitter and Facebook come, become a very important way of communicating with your elected officials.
HEFFNER: It sounds to me like the President, President Trump wants to shield himself from the responsibilities of a Commander in Chief, or of a public elected official, in so far as he wants to assert that his right as a citizen trumps his duty as the President to listen to the American people. His right to block, if that can be interpreted as free speech, trumps the people’s right to comment, to criticize, to protest.
FALLOW: That comes through in the government’s briefs in this case. Is, they’re essentially arguing both that, oh, this is not an official account, but if it is, it just represents the President’s speech, and that his decision about whether or not to block someone, is just his own right to free speech, or his right to hear or not hear from certain people. And you know, our view is…
HEFFNER: But this, this is a trend, too, of the President shielding himself from public deliberation. It’s not specific to the social media.
FALLOW: Well I think, I mean that, I think that’s fair. And I think it also comes with, I mean to some extent I look at it as the President and other officials are taking advantage of the great promise and opportunities of things like Twitter and other social media accounts as a way to have mar, more direct communication with constituents. But they, you can’t just have the benefit without the obligation that comes with being a public official. And one of those obligations is complying with the First Amendment.
HEFFNER: Or do you argue that blocking is not speech? FALLOW: Do we argue that? Oh…
HEFFNER: Or can you? Or is that, is that a more effective… strategy…
HEFFNER: As you…
FALLOW: Right I mean…
HEFFNER: Take this to court.
FALLOW: Right, yes, I mean I think again, the town hall analogy is helpful. Is, I mean, to some extent if a city council chairperson were to come down from the, you know, podium and personally eject someone, say I don’t like what you’re saying and, and throw them out, is that representing that city council person’s own, you know, viewpoints? Yes. But that is not allowed in that context, because there, she is operating as an elected official. She is presiding over a forum. She’s not having a one-on-one conversation with a person at a, at a party. And so, in that case the First Amendment rights of the audience does trump whatever First Amendment rights of the… chair person.
HEFFNER: How does the Baker case potentially inform this? As different as they may seem, in effect, it’s about the, the Baker’s right to sell versus the couple’s right to buy the cake. And in this sense I, I feel like there is some, again, some competing First Amendment argument being made.
FALLOW: Yeah. I mean I do think in the First Amendment, I mean, the whole Masterpiece Cake case is very different in terms of, you know the issues that it raises about the right, you know, whether you can discriminate un, eh, under the cloak of claiming the First Amendment right to speech… but I do think in First Amendment law in general it’s often a balance. It’s typically a balance not, not as in that case between two individuals, but it’s a balance between the government’s interest in whatever goal it is trying to achieve, versus the person’s right to free speech. And generally you put the thumb on, particularly in the cases of like a public forum doctrine, which is our case, on the scale of the First Amendment right to free expression. But a lot of that also has to do with whether or not the government action is actually targeted at the content of your speech versus some other desirable social goal.
HEFFNER: Is the outlook for digital autocracy as bleak as it appears?
FALLOW: [LAUGHS] In what way?
HEFFNER: Well the, the idea that these social media companies have, in effect, not imported any value system or legal determination in how they conduct themselves.
FALLOW: One question we do get about the, our Trump Twitter case is, how is this, how is Twitter impacted by your lawsuit? You know, and it, I think it’s clear, it, it’s important to emphasize that here, we’re really not talking about Twitter. We’re talking about the actions of the White House or President Trump and how they use Twitter. And so really you know, our lawsuit is just against the President, and just against the government, not against Twitter, in the same way as if you were to rent an auditorium and you know, you were just going after the government actor. I do think that people have been talking a lot recently, you know, about this concern of if Facebook and Twitter and other social media forums or Google, you know, other online forums become the new public forum for speech, and Justice Kennedy…
HEFFNER: Which they are.
FALLOW: In the Packingham case that I was talking about, specifically talks about that.
FALLOW: What does that mean? What does that mean for protection of speech, and you know, because you have this state action requirement, you couldn’t, you know, under a longstanding First Amendment doctrine go after Facebook if Facebook said you can’t post a picture of yourself breastfeeding on you know, your Facebook account. And that, has been a controversy. And they do have rules about nudity and what you can and can’t say. And their rules are much more circumscribed than what the First Amendment would, you know, could lawfully allow the government to prohibit. So you couldn’t go after Facebook but some people are arguing maybe you should be able to at some point.
HEFFNER: What’s the best case scenario from the, your perspective on this case?
FALLOW: On our specific case?
HEFFNER: On the Twitter case.
FALLOW: Well I, so a couple of things. One, I think the best-case scenario is an injunction that recognizes that the White House and the President shouldn’t be able to block people from the Twitter account, from following him based on their viewpoint. Two, establishing a more broad precedent for all public officials, you know, throughout the nation, that if you operate a social media account you cannot block people because they’re criticizing you. This is, you know, core political speech. It’s gonna be, and this isn’t even particularly nasty speech really, but even if it is, that’s part and parcel of political discourse throughout our nation’s history. And three, that they can start to, that it can sort of, the rules of the road can start to be more clearly established. That if you have a pre-existing social media account but you use it in your role as an elected official, you need to abide by the First Amendment. And I, and I, I think a lot of people have resistance to that, but if you’re a public official, you have an obligation to comply with the First Amendment. And if that just means that you let someone criticize you, it seems like, that’s not a huge burden. And it should be a burden that you have to undertake.
HEFFNER: And what seems to be more fortified is this distinction between campaign handles and governing handles, when it comes to raising money and when it comes to actually enacting your agenda. There are restrictions in localities, states, and even federally. So, for instance, a Marco Rubio campaign account may not be able to do what a Marco Rubio US senate account, to use one example.
FALLOW: Right. Exactly.
HEFFNER: That, been established in the case law for the last years… or is this really also new territory?
FALLOW: I think it’s still somewhat new territory. But you know there is, like there is one other case that’s pending right now in the fourth circuit. It’s coming out of a district court in Virginia, that involved a public official at the county level. And she blocked a, a constituent from her Facebook page that was established under, you know, it said Chair Phyllis Randall. And the court in that case went through, applied a functional analysis, and held that that Facebook page was operating in official capacity. It was, it was essentially like her official account. It also, the court noted that she also had another account called Friends of Phyllis Randall, which was for her campaign contributions, you know, or for, in, in the context of her campaign, and then a personal account. So I think just as you know, we’ve demanded public officials to… we, we want to demand that they use their work e-mail for work, and their personal e-mail for personal, but if you use your personal to do work emails, you’re still, you know, you’re still subject to the law. And I think that’s the case, that’s what we should have here, is that people just need to be cognizant of it, know what the obligations are, and set it up accordingly and in a sort of thoughtful and fair way.
HEFFNER: Why do you think it hasn’t had the cultural, it hasn’t hit the cultural consciousness in the way that Hillary Clinton’s private e-mail server? Because it’s so out in the public that we’re not as concerned about the nuances of… as you said, rules of the road for these handles?
FALLOW: Well I mean I think it has a fair amount of cultural resonance. I mean certainly everybody talks a lot about it, I mean you know, the President himself referred to himself as I’m it, his use of Twitter is modern-day Presidential so…
HEFFNER: Tweeter in Chief.
FALLOW: Yeah [LAUGHS] exactly.
HEFFNER: Katie, we’re out of time.
HEFFNER: But I want to thank you for joining us today.
FALLOW: Oh, my pleasure. Thank you.
HEFFNER: And thanks to you in the audience. I hope you join us again next time for a thoughtful excursion into the world of ideas. Until then, keep an open mind. Please visit The Open Mind website at Thirteen.org/OpenMind to view this program online, or to access over 1,500 other interviews. And do check us out on Twitter and Facebook @OpenMindTV for updates on future programming.