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2d Cir. holds that the "interactive space" on Twitter created when a public official has a public account is a public forum, and that it violates the First Amendment for a public official to deny access to that "interactive space" based on user content. assets.documentcloud.org/documents/6185… 
This is a garbage decision. Twitter lacks the features traditionally associated with public forums, which is why this panel and the district court below strains to discover this "interactive space" theory.
I'm skeptical about this interactive space business being a designated public forum because it leaps over the issue that Trump isn't in even primary control over how users can see and interact with that space.
That control lies more with Twitter itself and individual users.
That control lies more with Twitter itself and individual users.
How weak is this "interactive space" theory of Twitter as a public forum?
The entirety of the court's analysis on this pivotal issue is one paragraph, with one inapposite citation.
The entirety of the court's analysis on this pivotal issue is one paragraph, with one inapposite citation.
But Perry Educ. Ass'n held that when a public entity on public property opens up that property for periodic use by the public it *still didn't create a public forum.*
Perry is simply inapposite here.
Perry is simply inapposite here.
And that one paragraph lacking analysis is the whole ball game.
If Twitter automagically converts into a public forum when a public official uses it, then, axiomatically, the First Amendment is violated if the public official uses Twitter to impede speech he disagrees with.
If Twitter automagically converts into a public forum when a public official uses it, then, axiomatically, the First Amendment is violated if the public official uses Twitter to impede speech he disagrees with.
So you would think that the panel would handle the issue of whether Twitter is actually a public forum with more care. But no.
There was another way out here, but the panel forecloses it too, holding that when a public official tweets it is always state action and never private action.
Essentially, Trump is never "off" on Twitter, even though this too bizarrely curtails his own rights.
Essentially, Trump is never "off" on Twitter, even though this too bizarrely curtails his own rights.
This is one of those decisions that is going to come back to bite. People hated Trump enough that they just impaired Twitter usage by all public officials and public entities.
But, boy, they sure showed Trump!
But, boy, they sure showed Trump!
I want to come back to this public forum thing. Here is the entirety of the court's analysis.
But Perry Educ. Assn was about whether opening up space for communication *on public property* created a public forum. And even there on gov't property, the court said it did not.
But Perry Educ. Assn was about whether opening up space for communication *on public property* created a public forum. And even there on gov't property, the court said it did not.
Here, by contrast, we have Twitter, a private company, being converted into a public forum every time it is used by a public official.
The conclusion simply does not follow, and the court just runs right over the precedent because this is the conclusion it wishes to draw.
The conclusion simply does not follow, and the court just runs right over the precedent because this is the conclusion it wishes to draw.
Exactly. They quoted the precedent on their way to failing to apply it.
The nature of the property here is a private company, not public property.
The nature of the property here is a private company, not public property.
And while Twitter is compatible with expressive activity SCOTUS just got through explaining in Manhattan Community Access Corp. that private entities that provide forums for speech do not become public forums.
Seeing a lot of libertarians cheer this decision, but, as a general matter, the involuntary conversion of private space into public space is something they should oppose!
But it's not narrow. The decision requires that, having used Twitter for any public purpose, public officials cannot make private use of Twitter again.
And while one would hope former public officials could regain a private space on Twitter once out of office, but that doesn't follow from the decision's reasoning either.
The public character of the "interactive space" exists independent of the public official.
The public character of the "interactive space" exists independent of the public official.
It's very disappointing how unreasoned this decision is. These are important questions, and the opinion barely nods at them before thunking its preferred conclusion down and walking away.
