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Public Fora Purpose: Analyzing Viewpoint Discrimination on the President’s Twitter Account
James M. LoPiano*
Note

  The full text of this Note may be found here.

28 Fordham Intell. Prop. Media & Ent. L.J. 511
Note by James M. LoPiano*

 

ABSTRACT

[T]

oday, protectable speech takes many forms in many spaces. This Note is about the spaces. This Note discusses whether President Donald J. Trump’s personal Twitter account functions as a public forum, and if so, whether blocking constituents from said account amounts to viewpoint discrimination—a First Amendment freedom of speech violation. Part I introduces the core legal devices and doctrines that have developed in freedom of speech jurisprudence relating to issues of public fora. Part II analyzes whether social media generally serves as public fora, whether the President’s personal Twitter account is a public forum, and whether his recent habit of blocking constituents from that account amounts to viewpoint discrimination. In doing so, Part II also addresses the applicability of the recent decision from the U.S. District Court for the Eastern District of Virginia, Davison v. Loudoun County Board of Supervisors—wherein a local county government official was held to have engaged in viewpoint discrimination for banning a constituent from her personal social media account—to the Knight First Amendment Institute at Columbia University’s pending case against the President for the same. Part III then suggests multiple approaches for courts to analyze these claims, while taking account of an analytical mismatch that occurs when trying to apply the Davison case to the case brought against the President.

*Senior Notes & Articles Editor, Fordham Intellectual Property, Media & Entertainment Law Journal, Volume XXVIII; J.D. Candidate, Fordham University School of Law, 2018; B.A. in English with Honors, and Cinema & Cultural Studies, Stony Brook University, 2013. I would like to thank Professors Olivier Sylvain and Ron Lazebnik for their thoughts and guidance during the writing process, and their patience with my many questions concerning this area of the law. I would also like to thank the IPLJ Editorial Board and staff, especially E. Alex Kirk and Jillian Roffer for their encouragement, insightful feedback, and updates on the pending litigation against the President during the publication process.