For a few weeks I've been doing a weekly "bonus" podcast episode of KCRW's Left, Right & Center, discussing each week's legal developments in the world of the Trump Administration with LRC's redoubtable host Josh Barro. It's been fun. Marketplace's studio is two blocks from my office so I can walk over, borrow Kai Ryssdal's studio, and rant.
It's been a blast, and the legal news is so constant in 2018 that there's always something to talk about. So I'm very happy to announce that KCRW and Left, Right & Center have decided to make it an "official" spinoff podcast series called "LRC Presents: All The President's Lawyers." It's on iTunes. In the first episode Josh and I talked about the court decision saying President Trump couldn't ban people on Twitter, his annoyance that Jeff Sessions recused himself, and developments in the search of Michael Cohen's office. Check it out.
Last 5 posts by Ken White
- Now Posting At Substack - August 27th, 2020
- The Fourth of July [rerun] - July 4th, 2020
- All The President's Lawyers: No Bill Thrill? - September 19th, 2019
- Over At Crime Story, A Post About the College Bribery Scandal - September 13th, 2019
- All The President's Lawyers: - September 11th, 2019

Good episode and good discussion!
Josh is wrong, though, about what a "block" on twitter means (and you didn't clearly correct him).
If you block someone, they cannot see or quote your tweets. It's not just about whether their replies are visible or something.
Sure, they could use a second twitter account, or log out entirely, or follow an account that auto-retweets POTUS (there are several), but this is the fundamental difference between a "block" and a "mute".
I haven't read the ruling 3 times like you have, but I've heard other observers say that this distinction was central to the ruling.
I would prefer to see it on Google Play Music as well, though I'm sure you have little direct control over that.
Loving the interviews, and definitely enjoying my dose of popehat consistently and as commute entertainment instead of reading!
To folo on Brad, there are other politicos also blocking people. A couple of Twitter friends of mine have been blocked by the Alabama Secy of State.
Also, hashtags are exempt from blocking.
And, muting is much more fun, anyway.
Congrats! LRC is great, and love that you're doing this :) Another reason to subscribe to your local NPR station when they do stuff like this like KCRW does (my local one).
@SocraticGadfly said:
I'm not sure what you mean by this.
Do you mean, "you can't block hashtags"? In which case you are correct, because blocking is for accounts. You can filter hashtags from your timeline, though.
Or do you mean, "if someone blocks you, you can get around that by using a hashtag that you think they're likely to browse, and they'll see your post"? If which case, I'm not sure that's true.
Or do you mean something else altogether?
Would be great if Ken could do a Lawsplainer on if RICO could be used to indict all of the FBI agents that were swarming Cohen's curtilage while they were stealing literally boxes of thousands of papers!
I thought I was clear. Perhaps I was not. This is not a thread to work out your Jordan Peterson issues. If this is offensive to you, I invite you go to to another place, forthwith.
Bu-bu-but muh frozen peaches!
@Ken White —
I didn't get that. Please accept my sincere apologies.
Good podcast! And good points were well made by both speakers!
Here's the problem I have with your "government leasing a private space to be a public forum" pitch, though, Ken:
What are the terms of the lease? How much genuine and irretrievable control has the landlord given the lessee?
Is there a covenant of quiet enjoyment? A commitment that the space can be controlled by the government to the exclusion of all others, including the landlord (except under certain limited circumstances, like the rent check bouncing)?
Because that ain't Twitter. Twitter is already a content-controlled medium — by Twitter. Twitter not only retains a right to review the content of your "rented space" for discussion, it actively and frequently exercises that right, to the great dismay of its virtual "lessees."
Twitter can turn off Trump's twitter feed altogether, tomorrow, arbitrarily or even maliciously — and Trump has no recourse. And Twitter makes content-based decisions about what can be done in that space whether Trump likes it or not.
Twitter, then, is a forum for discussion in which the government is participating. But it's not a forum for discussion that the government owns or controls.
And "owns or controls" is the threshold test that must be satisfied before one can conclude that it's a "public forum" in which the government is constrained by the First Amendment from imposing content-based controls on speech.
In a sentence: The account is still https://twitter.com/realDonaldTrump — not https://twitter.gov/realDonaldTrump.
Remember during the 1980 GOP presidential primaries, in New Hampshire, when Ronald Reagan financed the debate and claimed effective ownership of the microphone?
As a candidate, Reagan's assertion of his rights didn't implicate the First Amendment. If he'd already been POTUS and the feds were paying for the microphone, that might have been a whole different story.
But on Twitter, everyone, including Donald Trump individually and now Donald Trump as POTUS agreed to Twitter's terms of use and licensing arrangements — which, closely viewed, is an incredibly restrictive license that lets Twitter do almost anything it wants with your "Content," including the overriding decision-making on how it's curated. By allowing account owners to block, Twitter cedes only very limited control over one small aspect of how that content gets manipulated and displayed, and to whom. Even that is subject to being overturned by Twitter at its whim. And none of us has paid for the microphone.
It's discouraging that my last two comments, for reasons that I can't divine even after reading our host's webpage about his spam filters, are still in moderation.
@Beldar, at least he's not memory-holing them. Yet.
Thank you, thank you, for all the work you do on these podcasts and lawsplainers. As a non-lawyer ordinary citizen, it really helps me understand what's going on, in depth and in detail.
@Beldar: the first post has two links in it. Any post with more than one link is automatically moderated.
The second post only has one link, but it's a rather longer post, so you may have edited it. Editing it counts the first link a second time, and it gets moderated.
Or, at least, that's been my experience with this site. It's frustrating, but apparently not malicious.
@Ken – There's a new Supreme Court ruling. I would care to hear your thoughts on this, should you be so inclined (and Beldar's):
https://www.supremecourt.gov/opinions/17pdf/16-111_j4el.pdf
@ Richard: Thanks for the insights about the spam filter.
@Beldar
The easiest way to get Twitter.gov by tomorrow is to kick Trump off of Twitter.com today – I'm sure he'd be happy to build one.
'Twitter.gov' is probably a good idea anyway – to the extent that there is real utility in government officials and agencies communicating directly with any and everyone. If SMS-style direct, electronic communication is, on balance, a GOOD THING, why rely on some private service with its own, arbitrary rules and possible bad behavior?
A 'twitter.gov' communications feed should also solve any account verification issues plus, public responses to official communications could be clearly segregated from each other just as public comments are clearly distinct from, say, a rule proposal on the SEC government web site. That way you wouldn't have to bother with any guff about 'Trump trolls' clogging up the feed and/or offending others trying to get the direct scoop from the FCC chairman or whatever.
An API or whatever could be provided to any private social media platform looking to provide or aggregate 'Twitter.gov' content to its user base.
I disagree. The government official controls his or her account. The government official controls who is or is not blocked. That is more than enough. I see no need to equate "owns or controls" with exclusively owns or controls besides skirting the usual rule.
Denied; citation needed. "Once it has opened a limited forum, however, the State must respect the lawful boundaries it has itself set" and "The SAF is a forum more in a metaphysical than in a spatial or geographic sense, but the same principles are applicable." Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 829-30 (1995) (emphasis added). No part of the limited public forum analysis requires exclusive ownership or control of either the facility or the mode of communication. Instead, it requires that where the government establishes rules for participation they must be viewpoint neutral rules.
I didn't make up the "owned or controlled" requirement. Indeed, from SDNY Judge Buchwald's own decision in this very case (slip op. at 39)(boldface mine):
See also the cases cited at pp. 41-42. Most of them are cases in which there's no doubt about public ownership and control, but rather, the question is whether it's a communications forum set aside for public expression. None of these cases involve anything remotely close to a privately owned, for-profit online communications medium like Twitter in which the hosting company maintains near absolute discretion and control over what gets published; nor did Rosenberger. I don't think any of those cases support treating a sub-part of Trump's Twitter account as a forum that is owned or controlled by the government. But there's no doubt whatsoever that that is indeed a threshold requirement for "public forum" analysis.
You've also engrafted onto my argument "exclusive ownership or control," which I haven't suggested and don't agree with. Obviously Twitter's limited-use license gives Trump some control. But he doesn't control, for instance, the curation by Twitter of which re-tweets and replies get selected to appear in his account's timeline; someone (or more likely, some algorithm loosely monitored by human employees) at Twitter routinely exercises that control on a daily basis. And not only does Twitter (through its algorithms and employees) exercise that practical control 24/7/365, it has overriding rights over the account and the space.
Judge Buchwald's opinion nowhere mentions any of this, nor any part of Twitter's terms of use. I think she's erred in ignoring that, and when it's considered, I think she's erred in her conclusion that there is sufficient ownership and control of this weirdly defined "space" for it to be deemed adequately "owned or controlled" to be a dedicated-to-public-use forum. But I suppose the Second Circuit will tell us, in due course.
It appears that editing, even once, any comment with even only one link, throws the comment into moderation. I suppose the only work-around is to leave a string of comments with one's corrections, ignoring the edit function altogether. /sigh
First, I don't consider a threshold analysis laid out on a district court decision (and supported by a number of "see" citations) to be a generally applicable "threshold test." It is certainly the law of the case, but it's merely persuasive authority to anyone else in that district, much less anyone in other districts or circuits. I remain free to disregard any part of the "threshold test" that is inconsistent with higher legal authority, much less the court's own application of your now-cited test.
Second, you indeed made up your own gloss on the "threshold test," since in its analysis the court expressly concludes:
You disagree with the court's analysis; fine. But you do not get to flatly state that "[Twitter is] not a forum for discussion that the government owns or controls" in contradiction to the court's own test, analysis, and conclusion. You must acknowledge and address contrary authority.
Third, Rosenberger expressly stated that the it is the nature of forum created by the government, whether metaphysical or otherwise, that is to be analyzed. Your attempt to distinguish Rosenberger on a basis that it expressly states does not matter is irrelevant. @realDonadTrump is no less a metaphysical forum than a student activities fund otherwise held a privately-owned banking institution for transfer to student organizations. Rosenberger expressly states that it is the character of the forum that the government creates, not the character of the geography or space within which the forum is created, that is subject to the analysis.
The plaintiffs are not complaining about "the curation by Twitter of which re-tweets and replies get selected to appear in his account's timeline," they're complaining about the curation by @realDonaldTrump of which re-tweets and replies will be permitted to exist. @realDonaldTrump exercises at least principal control control over those. Fourth, you claim that I have inappropriately grafted "exclusive" onto "ownership and control," but your argument merely seeks to carve away aspects that @realDonaldTrump might not control to say that there is not exclusive control. If you want to rephrase your proposed gloss upon the court's "threshold test" as "sufficient ownership or control;" fine. "Sufficient" control lies in the ability to selectively permit retweets and replies from accounts with viewpoints that @realDonaldTrump does not object to, and selectively block retweets and replies from accounts with viewpoints that @realDonaldTrump does object to. @realDonaldTrump exercises a level of control enables viewpoint discrimination of its own volition — not merely alleged viewpoint discrimination imposed upon it by Twitter.
Finally, your analysis is logically and philosophically defective. Twitter is no more "a privately owned, for-profit [] communications medium" than any private facility that rents an event space to the federal or local government. Twitter has not exercised control over or threatened to shut down @realDonaldTrump on the basis of the content that appears in and under it. The notion that a government entity barred from engaging in viewpoint discrimination should be freed from that limitation because it uses a privately owned facility that could use that facility to engage in viewpoint discrimination, but has not in connection with the government's actual and proposed use, is simply a cop-out. It's the proverbial exception that would swallow the rule. The government need only restrict its public interactions to privately-owned fora and it may engage in viewpoint discrimination at will?
Because they're irrelevant. The plaintiffs do not complain of Twitter's actions, Twitter's "curation"* of replies, or Twitter's Terms of Use. The plaintiff's complain of @realDonaldTrump's selective exercise of the blocking function in order to engage in viewpoint discrimination amongst those who directly reply to and retweet his "official" pronouncements.
*Twitter appears to simply present a list of replies in chronological order. What other "selection" do you contend occurs, pray tell?
I think that you've erred in ignoring that Donald Trump has exclusive control over whether he disseminates information using Twitter, routinely permits tens of thousands of replies and retweets, and exercises heretofore plenary control over his list of blocked Twitter accounts so as to control who may directly engage in those replies and retweets. I think that you've erred in treating "sufficient" as something that is almost quantitative — what proportion of control does he have — rather than qualitative — what relevant control does he have.
You'll criticize them too, I'm sure.
I find the "owned and controlled" argument utterly unconvincing, not the court opinion itself, but rather Beldar's argument that the opinion implies that if something is not both owned and controlled by the government, there can be no First Amendment restrictions.
We already know this isn't the case. There's a huge body of law regarding quasi-public places acknowledging that non-government owners can be constrained by the First Amendment under certain circumstances. Unlike Beldar, and honestly much to my surprise, we have in numerous areas of con law something resembling common sense–where for example the courts have held that a tenant paying rent to have temporary but exclusive control over his home has protection from unreasonable search and seizure even though ownership and control lie with separate parties–all this despite the fact that early Fourth Amendment jurisprudence considered only home ownership.
Under the Beldar standard, any government entity could make an end run around the First Amendment by essentially selling off all government property and conducting as much business as possible as a tenant on private property. But why stop at the First Amendment. Several states have transparency laws mandating disclosure of records regarding government business on government property. Take the government property out of the equation, and you're back to secret backroom deals, no problem.
If Twitter invited a public official to an event where Twitter dictated who could tweet and who could view tweets, you could make a compelling argument that the First Amendment doesn't apply (or alternately, that it might apply, but to constraint twitter's actions, not the public official's.) However, it's clear that for general use, the public official (or really, just about any twitter user) the balance of control highly favors the user. The user may not own the the platform, but he is paying rent (in the form of viewing ads and sharing his personal information) in exchange for exclusive control over his small part of the platform. To argue that the Constitution doesn't apply because technically ownership and control are separated is not only idiotic, it's dangerous.
Some one asked about putting the podcast on google play. Perhaps by now he knows it is on stitcher.