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Say the government set up booths in a mall for public officials to make speeches. Could the government then kick out people who bring in pro-abortion signs to such a speech? Probably not.

Probably not but I think the mall management could, at the request of the official or for other reasons, if they choose to. It's still their private property.

FTA: The medium of communication, whether it’s online, television, radio, print, or bullhorn—isn’t the issue

I disagree. Twitter is private. Nobody has a right to a Twitter account. It's not "the press," it's not the public square, and it's not the beneficiary of government allocated broadcast frequencies. Twitter has decided to enable users to block other users and it's really not the government's business.

Politicians frequently make speeches at private events in hotel ballrooms (e.g. fundraising dinners) that are open only to approved audiences. I don't see Twitter as being much different.

I don't think this has anything to do with what Twitter can do, but with what the government can ask (in this case, using its features like Blocking) Twitter to do.

I would support Twitter if they decided that governmental users were not allowed to block.

Twitter is perfectly free to do that, but is not compelled to do so (and still won't be even if EFF wins this lawsuit).

Also notice that EFF winning this lawsuit will not compel all gov't users to disavow the block feature, because not all forms of gov't communications come with the same free speech obligations. The 1st amendment has different ramifications depending on the purpose of the forum; e.g., the rules for:

  * NOAA emergency announcements, 
  * national park service informational billboards, and 
  * city council Q&A sessions

are all very different.

> it's not the public square

Then it shouldn't be used as a public square.

It's really that simple. Twitter isn't being compelled to do anything either way! But if Twitter isn't an appropriate setting for a public forum, then the gov't can be forced not to use Twitter for certain things.

This is not about Twitter's rights to provide features. It's about the government's right to use those features.

> Politicians frequently make speeches at private events in hotel ballrooms (e.g. fundraising dinners) that are open only to approved audiences. I don't see Twitter as being much different.

There are strict rules that separate public service from campaigning activities.

So one important factual question in this case is what side of that divide the accounts in question (e.g., @realdonaldtrump) are on.

> This is not about Twitter's rights to provide features. It's about the government's right to use those features.

This is the heart of it. The mall can do what it wants, but the public official can’t direct mall security to kick out people with protest signs.

What if the mall owner or manager felt he knew the official well and assumed that he would prefer the protesters be removed? If he had them removed without any communication with the official would that be a violation?

It primarily depends on who is funding the politician's venture within the mall. If it's the taxpayers then that removal would constitute a First Amendment violation even without direction of the government itself.

Which is why your local reps office isn't inside a mall, because the mall wouldn't want the unblockable distraction of protesters or public events.

> Politicians frequently make speeches at private events in hotel ballrooms (e.g. fundraising dinners) that are open only to approved audiences. I don't see Twitter as being much different.

That's a completely different situation than what the OP is talking about, which is public officials acting and communicating in their given public roles. It's illegal as hell to spend government resources on campaign purposes. That's why officials have separate websites for their public office and for their campaign:

https://issa.house.gov/

https://www.darrellissa.com/

> The question isn’t whether Twitter in general is subject to the first amendment—it isn’t.

You throw that out so lightly. But it isn't so clear to me that Twitter can act like a public forum, and then block citizens from using it, without any due process or even notification (see: shadowbanning). Nevermind that Twitter regularly pushes its own viewpoints to the top, not only of its own homefeed, but picks-and-chooses which users get to show directly underneath the Trump's tweets. That sort of power, unregulated and non-transparent, is immense. Maybe the algorithm should be transparent.

More and more, I feel like content-providers are treating the First Amendment as damage and routing around it [1]

[1] https://en.wikiquote.org/wiki/John_Gilmore

> But it isn't so clear to me that Twitter can act like a public forum

Then perhaps our elected and appointed officials should not use Twitter when conducting government business.

But more importantly, this is a related but different issue from the one discussed in the brief. There are two questions:

1. Should officials have the right to block users for their political speech

2. Should officials be allowed to use platforms that block users for their political speech, or prefer some political speech over other speech.

IMO the answer to both questions should be "no". But this is case is really about the first question.

>> The question isn’t whether Twitter in general is subject to the first amendment—it isn’t.

> You throw that out so lightly. But it isn't so clear to me

It is clear to me: "Congress shall make no law [...] abridging the freedom of speech."

I don't see where it says anything about private corporations.

Oh, so you think Net Neutrality was unconstitutional?

> Oh, so you think Net Neutrality was unconstitutional?

I can't even understand your logic to try to make sense of this and respond to you. Are you saying you think if the first amendment doesn't imply X then X is unconstitutional?

My point is that the First Amendment is far more complicated than your comment. The government regularly forces private corporations to carry speech they disagree with in the name of the First Amendment. AT&T can't censor my calls if they don't like the content, so clearly corporations do intersect with the first amendment.

EDIT: Can't reply to your comment, so here's one such article, from the EFF no less, https://www.eff.org/deeplinks/2017/06/attack-net-neutrality-...

I'm pretty darn sure net neutrality regulation was there to promote competition, protect consumers, etc. (see: commerce clause, among others) rather than to protect people's first-amendment rights. Notwithstanding how you may have personally viewed it, you're gonna need some serious citations if you're going to seriously argue the regulation was there due to 1st-amendment free speech concerns. Here's a link from my end to get you started. https://www.forbes.com/sites/washingtonbytes/2017/03/10/the-...

EDIT in response to your edit: you dodged this pretty cleverly. Senators say a lot of wrong and even contradictory things (I hope I don't need to waste time finding you videos), and like any interest group, EFF stretches arguments beyond their applicability to support their agenda. (Not saying they have bad agendas! But having a desirable conclusion doesn't imply good arguments are being provided for it.)

There are pretty clear lines between:

[1] "some senators (and EFF) feel a lack of net neutrality would violate the first amendment" (which wasn't your argument, and if it was, is a pretty weak claim),

[2] "net neutrality was there to protect first amendment rights" (which was your argument, and the one I was asking you to support, and a pretty easy one to prove if correct -- all you need is to quote the rationales for the net neutrality regulation we had), and

[3] "lack of net neutrality actually violates the first amendment" (which you've been arguing towards, but which would require case law as proof, not senators' feelings)

Congress makes the laws that allow corporations to operate nationally. It can be argued that Congress has abridged the freedoms of speech, the press, and assembly by creating the environment in which private entities own everything that resembles a modern public venue.

> Congress makes the laws that allow corporations to operate nationally. It can be argued that Congress has abridged the freedoms of speech, the press, and assembly by creating the environment in which private entities own everything that resembles a modern public venue.

Only if by "it can be argued" you're referring to being physically capable of arguing. Otherwise, no. The first amendment was never about guaranteeing you a platform or about otherwise ensuring anyone else hears you. It was about the government not arresting you for what comes out of your mouth.

All that matters is what the country needs now, not what some reasonably insightful but far from clairvoyant people thought a couple hundred years ago.

Also you put words into my mouth. I never said anything about guarantees or platforms. But consider this: if the government's intention was always to turn over every useful platform to wealthy private owners, why bother with a bill of rights or first amendment at all?

it isn't so clear to me that Twitter can act like a public forum, and then block citizens from using it

IANAL, but the relevant case law seems clear to me - the First Amendment doesn't apply to private property, even when that property is used like a public place, e.g. a mall.

What does seem to apply is State law - that is, seems like a US State can force a mall owner to allow people to express certain speech, without the State itself violating the First Amendment (as per [1]). Which raises the question whether the State(s) where Twitter has a legal presence could restrict its control.

[1] https://en.wikipedia.org/wiki/Pruneyard_Shopping_Center_v._R...

I'm not sure we have decent case law for the situation we're in now... the speech of Americans is largely controlled by a few entities that have the power to silence your speech almost completely, at least in the ways that speech is used today.

I don't think you understand how case law works. Unless you're making an argument for full legal instrumentalism(?)

I just don't think a mall and Twitter/Facebook are particularly comparable. They have some things in common, but they differ in large, important ways. If every mall in the US was actually the very same mall, and getting banned from one got you banned from all malls, and malls could shadowban you, and the President typically communicated via malls, and malls were the primary way in which society spoke to each other... and on and on.

Then again IANAL, so I definitely don't understand how case law works. Just using common sense here. All I see in common between malls and Twitter/FB is they are both private property and speech is involved. There's a chasm beyond that.

Fair enough, but the courts don't simply say Yea or Nay, they explain why the First Amendment doesn't apply to malls, and the reasons are valid for Twitter too. By the way, IANAL either, but rayiner is :)

Free speech has become a political tool. Content providers as you indicated like Twitter, and i'll add Reddit, push their political agendas very heavily. It was very interesting to see Reddit (or many subreddits anyway) campaigning against recent NN plans on grounds of there being an impact to their rights to free speech. The rooster is killing the chick's and complaining to the Hen about a wolf outside.

During the hysteria, if you pointed this out on Reddit, your comment would be censored.¯\_(ツ)_/¯

Re: the mall example, would the government have to actively stop mall security guards from kicking people out for speech-related acts made within the "public forum" space that are against the mall's private policies?

Yes. If taxpayers are funding the mall space, they are entitled to assemble there. Any violation of that is a First Amendment case.

It's why government doesn't set up in malls, the malls won't let them. But a mall isn't the best analogy for Twitter because a Twtitterfight doesn't interfere with the rest of Twitter at all.

The better analogy is a (soundproofed) hotel where your key granted you access to every room but the owner of the room can choose to deny you access. If the government (ie taxpayers) owns the room, they can't deny you access when conducting official business.

> Say the government set up booths in a mall for public officials to make speeches. Could the government then kick out people who bring in pro-abortion signs to such a speech? Probably not.

I am not an expert on this area of law, but it's possible that they could:

https://en.wikipedia.org/wiki/Free_speech_zone

> The existence of free speech zones is based on U.S. court decisions stipulating that the government may regulate the time, place, and manner – but not content – of expression.

Your meat space analogy only makes sense if twitter is neutral.

Conservatives and Ajit Pai think twitter is not a neutral edge service.

If the eff is correct, this will open the pandoras box of lawsuits from conservatives.

> only makes sense if twitter is neutral. Conservatives and Ajit Pai think twitter is not a neutral edge service.

Actually, this makes the analogy an exceptionally good one!

Malls and mall owners are about as far from politically neutral as you can get, especially at the local level. I've never seen a major mall be build/renovated without some squabbling about local/regional tax policy.

Politicians can't censor speech based on political content during open Q&A periods at city council meetings. And that doesn't change just because they choose to hold those meetings in the mall parking lot.

From the article: When elected officials choose to give speeches in a park, hold town hall meetings in a school stadium, stand on a street corner giving safety instructions to flood victims, or debate each other on Twitter, the public’s First Amendment rights to receive those messages are triggered.

> If the eff is correct, this will open the pandoras box of lawsuits from conservatives.

Both sides of the isle utilize the courts to protect their first amendment rights. This has always been true and will always be true.