*1 18-1691-cv
Knight First Amendment Institute, et al. v. Donald J. Trump, et al. ‐ 1691 ‐ cv First Amendment Institute, et al. v. Donald J. Trump, et al.
United States Court of Appeals FOR THE SECOND CIRCUIT At stated term United States Court Appeals Second Circuit, held Thurgood Marshall United States Courthouse, Foley Square, City New York, rd day March, two thousand twenty. P RESENT :
ROBERT A. KATZMANN,
Chief Judge JOSÉ A. CABRANES,
ROSEMARY S. POOLER,
PETER W. HALL,
DENNY CHIN, RAYMOND J. LOHIER, JR., RICHARD J. SULLIVAN, JOSEPH F. BIANCO,
MICHAEL H. PARK,
Circuit Judges KNIGHT FIRST AMENDMENT INSTITUTE
AT COLUMBIA UNIVERSITY, REBECCA
BUCKWALTER, PHILIP COHEN, HOLLY
FIGUEROA, EUGENE GU, BRANDON NEELY,
JOSEPH PAPP, NICHOLAS PAPPAS,
Plaintiffs ‐ Appellees No. cv DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES DANIEL SCAVINO,
WHITE HOUSE DIRECTOR OF SOCIAL MEDIA *2 AND ASSISTANT TO THE PRESIDENT,
Defendants ‐ Appellants SARAH HUCKABEE SANDERS, WHITE HOUSE PRESS SECRETARY,
Defendant .
For Plaintiffs Appellees: Jameel Jaffer (Katherine Fallow,
Caroline DeCell, Alexander Abdo, Meenakshi Krishnan, on brief ), First Amendment Institute Columbia University, New York, NY, Jessica Ring Amunson (Tassity Johnson, Tali R. Leinwand, on brief ), Jenner & Block, Washington, D.C.
For Defendants Appellants: Jennifer Utrecht (Scott McIntosh, on brief ), Attorneys, Appellate Staff,
Civil Division, Joseph H. Hunt, Assistant Attorney General, Hashim M. Mooppan, Deputy Assistant Attorney General, Washington, D.C. Following disposition appeal July 2019, active judge Court requested poll whether rehear case en banc . A poll having been conducted there being no majority favoring en banc review, rehearing en banc hereby DENIED .
Barrington D. Parker, Circuit Judge filed statement respect denial rehearing en banc
Michael H. Park, Circuit Judge joined Richard J. Sullivan, Circuit Judge dissents opinion denial rehearing en banc
Debra Ann Livingston Susan L. Carney, Circuit Judges took no part consideration decision petition. FOR THE COURT: CATHERINE O’HAGAN WOLFE, CLERK *4 B ARRINGTON D. P ARKER Circuit Judge statement with respect denial of rehearing en banc
This case arises from President’s use of @realDonaldTrump account (the “Account”) a primary vehicle official communications. He uses this account make statements a wide variety subjects, many of great national importance. The public, turn, is able respond and engage with President and other users Twitter. In First Amendment Inst. Columbia Univ. Trump we concluded this dialogue creates a forum. (2d Cir. 2019). We also concluded when creates such a forum, he violates First Amendment he excludes persons dialogue they express views with which he disagrees.
The decision is unusual only involves Twitter, relatively new form public, interactive communication, and President. However, opinion consistent with every precedent Court, and dissent does not demonstrate otherwise. It is, I respectfully suggest, straightforward application state action forum doctrines, congruent Supreme Court precedent. misconstrues applicable law overstates scope panel’s holding. dissent’s main concern—and its primary argument—is Account therefore its does constitute state action. This argument refuted even cursory perusal examples tweets question. Consider these recent ones: *6 These tweets published by official clothed authority of state using as tool of governance as an official channel of communication an interactive platform. The panel decision discussed President’s use Account in an official capacity in detail. See Knight F.3d at 232. Excluding people from an otherwise such as this by blocking those who express views critical official is, we concluded, unconstitutional viewpoint discrimination. Id. at
I. dissent contends Account conduct official
business does not amount state action. While does not dispute Account regularly used as channel communication, argues no state action involved President does not exercise “some right or privilege created by State” he blocks accounts Twitter. First Amendment Inst. Columbia Univ. v. Trump F.3d (2d Cir. 2019) (Park, J., dissenting denial rehearing en banc, 2) [hereinafter Dissent ]. Satisfaction condition said required our decision Flagg Yonkers Sav. & Loan Ass’n, FA (2d Cir. 2005).
I do agree. state action analysis was correct. When tweeted about Iran he speaking capacity nation’s chief executive Commander Chief. If “right privilege created *7 State” it is difficult to imagine what might be. By the same token, when he receives responses from the to the Account, when he blocks responders whose views he disfavors, he remains the President. The critical question in this case is the nature of the Account when it set up a decade ago. The critical question for First Amendment purposes is how the President uses the Account in his capacity as President.
The Supreme Court in Lugar Edmondson Oil Co. identified the test for state action as whether the conduct allegedly causing the deprivation of federal right is “fairly attributable to the State.” (1982). Edmondson Oil instructs us that, where the claim of constitutional deprivation is directed against party whose official character is such as “to lend weight of State his decisions,” the conduct is state action is “fairly attributable State.” Id. President quintessentially qualifies as party whose “official character . . lends weight of State his decisions.” Id. That, course, holds true his current use Twitter. *8 The dissent further contends that “the panel decision blurred the line between actions the performance of their official duties and actions ‘in the ambit pursuits.’” Dissent at 5. This ignores the detailed discussion the panel provided concerning the “substantial and pervasive involvement with, and control over,” the Account. Knight F.3d at 235. That discussion noted that the President and staff the Account as an official channel communication with matters concern. Press Secretary Sean Spicer confirmed President’s tweets are official statements President. White House staff members involved drafting posting tweets Account, and National Archives Records Administration requires preservation tweets official records under Presidential Records Act. Id. None this dispute.
The dissent states “blocking” feature available all users, cannot state action. Dissent 3. addressed argument when Appellants made it, dissent’s reiteration breaks no new ground. See What never seriously engages blocks users, he blocks them from access to, interaction with, official decision careful address areas generate dissent’s anxiety. We did consider decide whether violates Constitution excluding persons personal, private account. Nor did we decide *9 how the First Amendment impacts private social media accounts used officials. Knight F.3d 236. We held only the First Amendment does permit a who utilizes a social media platform for official purposes exclude persons otherwise open dialogue merely they expressed views disfavored the official.
II.
In Packingham North Carolina Justice Kennedy discussed relationship between First Amendment. He said “[w]hile in past there may have been difficulty in identifying most important places (in spatial sense) for exchange views, today answer clear. It is cyberspace—the vast democratic forums Internet in general, social media in particular. . . . [O]n Twitter, users can petition elected representatives otherwise engage with them direct manner. . . In short, users employ these websites engage wide array protected First Amendment activity topics as diverse as human thought.” S. Ct. (2017). If Justice Kennedy right, I believe he is, then dissent wrong.
Keeping Supreme Court’s words mind, concluded “interactive space” Account forum purposes First Amendment. articulates two concerns our analysis. Its first objection “disaggregation” *10 tweets from the interactive features the Account. Dissent at 8. second objection is did not change the way he uses after he took office, and therefore he could not have intended create a public forum. Dissent at 7, 11. Again, I respectfully disagree.
A. First, worries panel “strayed from” Court’s precedent (which never specifically identified) when it distinguished between tweets, which it categorizes government speech, ‘interactive space’ accessible public, which concluded constituted forum. Dissent at point departure our analysis “whatever challenges applying Constitution ever advancing technology, ‘the basic principles freedom speech press, like First Amendment’s command, do vary’ new different medium communication appears.” at (quoting Brown Entm’t Merchants Ass’n (2011)).
A simple analogy physical fora makes it clear distinction between tweet its interactive space appropriate: town hall meeting held officials, statements made officials protected speech. If, however, comment allowed gathering—as any tweet posted Account—the may preclude persons participating debate
*11
based viewpoints. Significantly, that discrimination is impermissible even forum is limited and is “of [the State’s] own creation.”
Rosenberger v. Rector and Visitors University Virginia
,
B. The dissent, citing Arkansas Educ. Television Comm’n Forbes contends we apply forum precedent use Account in ‘mechanical way.’ 672–73 (1998). I disagree. In Forbes Supreme Court observed doctrine first arose context streets and parks, and warned against “mechanical” extension doctrine television broadcasting. Id. Forbes identified two features parks streets television broadcasting does not share: “open access” “viewpoint neutrality.” Court found that, television channels create publish their own content, they “are only permitted, but indeed required, exercise substantial editorial discretion selection presentation programming.” Id
Twitter possesses both critical attributes identified Court Forbes broadcasting lacked. First, Twitter open general public. only limitation Twitter places creating age based: those under years age may its services. See Terms Service twitter.com/tos (last visited *13 March 2020). Second, neutral respect viewpoint; it platform which users publish their views.
C. Finally, argues Account created as one it cannot now be forum. Dissent As I mentioned, dispositive consideration what Account may have been past, but what now. Consider another recent tweet:
*14 As with tweet concerning Iran, I believe under no rational view can tweets such as these considered “personal.”
In determining whether has “intentionally opened a nontraditional forum for public discourse” Court looks “policy practice government” as well as “the nature property its compatibility with expressive activity.”
Cornelius v. NAACP Legal Def. & Educ. Fund, Inc.
,
III.
dissent asserts that, while tweets are speech, other uses Account, such blocking, somehow cause Account revert to account. goes insist panel’s disaggregation Account’s tweets interactive space “artificial” Twitter itself makes no such distinction. Dissent at This argument misunderstands how platform operates. Twitter accounts include bundle features. They come every available every user. Neither nor anyone else able individually tailor features accounts. If one navigates “Twitter Rules” webpage, hyperlink top page labeled “Using Twitter” leads following:
*16 Each phrase hyperlink to new page with a detailed explanation feature listed. Because every Twitter account comes every feature listed, ability to tweet always includes ability to reply block. interactive functions what you get you open Twitter account. dissent never explains how account used speech turns into simply its user limits who allowed see respond speech.
In addition, new features recently announced Twitter highlight distinction correctly made but characterizes “artificial.” Dissent One those features will soon allow users limit who can reply tweets. These features will allow users set reply functions “Global, Group, Panel, *17 and Statement.” Global the current default (and only) setting Twitter accounts. The Group setting will allow those who follow the account and those @ ‐ mentioned tweet to reply, while the Panel setting allows only users @ mentioned in tweet to reply. The Statement setting does allow anyone to reply, functionally severing the “interactive space” of the replies the speech of the tweet itself. dissent thus incorrect contend Twitter itself does distinguish between “initial tweets” “interactive spaces.” On contrary, continuing make bounds those interactive spaces more sophisticated even more integral part of Twitter.
IV.
dissent repeatedly misconstrues scope holding It worries opinion “will reach far beyond Oval Office, creating uncertainty about by every level government.” Dissent These alarms ring hollow. None these fears have come fruition since publication opinion. While worries “this decision will have *18 unintended consequence of creating less speech,” it points to no marked change to how since the opinion was published. [7]
In fact, just opposite has occurred. In past few months, the has been posting Twitter more than three times rate he was tweeting in These tweets cover subjects as diverse as military actions, immigration policies, and senior staffing changes, among other major official announcements. just an channel of communication President; most important channel of communication. [8]
V. Federal Rule of Appellate Procedure 35 provides that en banc rehearing “will be ordered unless (1) en banc consideration necessary to secure or maintain uniformity court’s decisions; (2) proceeding involves question of
[7]
four cites cases purportedly document illustrate concerns panel decision just one in flood similar lawsuits.
Leuthy v. LePage
was made moot before panel even heard oral arguments in
Knight
. No. 1:17 ‐ cv ‐ 0029 ‐ JAW,
press briefings pointing out press has unprecedented access him he “communicates directly American people,” which is, course, reference Twitter. *19 exceptional importance.” fails offer anything beyond conclusory claims that either standard is met in this case.
A distinctive feature of the Second Circuit its infrequency of rehearing cases en banc. Judge Jon O. Newman has explained that this approach grounded in the view, “strongly held all members of the court, that in bancs normally wise of judicial resources.” Jon O. Newman, In Banc Practice in the Second Circuit, B ROOK . L. R EV . (1989). I, one, agree with these views. Judge Newman went stress that collegiality of this Court, its relative lack of “vitriolic language unfortunately found in writings of some other appellate courts,” *20 M ICHAEL H. P ARK Circuit Judge joined R ICHARD J. S ULLIVAN Circuit Judge , dissenting from the denial of rehearing en banc :
When public personal social ‐ media accounts express views, they do not engage “state action.” And First Amendment’s guarantee free speech does include right post other people’s personal social ‐ media accounts, even if those other people happen officials.
We have declined rehear en banc decision extends First Amendment restrict personal ‐ activity officials. Because panel opinion contravenes both our state action precedents, I respectfully from denial rehearing en banc
This case concerns President’s account, @realDonaldTrump, which he created more than six years before taking office. President “blocked” Plaintiffs from interacting account, they sued, claiming violation First Amendment. panel held (1) President engaged “state action” when he blocked Plaintiffs @realDonaldTrump, (2) “interactive spaces” account—specifically, thread replies each tweets, but tweets themselves—are forum. Therefore, concluded “the violated First Amendment he used blocking function [of *21 his personal Twitter account] exclude” individuals based viewpoints. First Amendment Inst. Columbia Univ. v. Trump F.3d 226, 239 (2d Cir. 2019).
This decision strays from our precedents, extends scope First Amendment encompass personal ‐ activity government officials, therefore merits review by whole court.
I.
Although panel opinion correct, concedes, President used his personal Twitter conduct business, does end state ‐ action analysis. opinion ignored important part state action test by failing consider whether exercised “some right or privilege created State” he blocked Plaintiffs account.
Flagg v. Yonkers Sav. & Loan Ass’n, FA
178, (2d Cir. 2005) (citation omitted). “[S]tate action requires
both
. . . exercise some right or privilege created State . . ” involvement “a person who may fairly said be state actor.”
Id.
(emphases original) (internal quotation marks omitted) (quoting
Am. Mfrs. Mut. Ins. Co. Sullivan
(1999)). “right privilege” requirement well established feature
*22
state ‐ action doctrine.
See Lugar v. Edmondson Oil Co.
None evidence emphasized panel undermines point. The pointed numerous instances when tweeted about his work in office, but that not enough make personal “right or privilege created State.” Such rule would preclude government officials from discussing public matters on their personal accounts without converting all activity those accounts into state action. [3]
In addition, the panel’s reasoning—that the tweets an official capacity, his use of Twitter’s blocking function state action—operates at wrong level of analysis. panel focuses on the status of the entire account— i.e. , whether President’s use of Twitter transformed his personal account into official account—rather than examining specific action at issue— i.e. , whether blocking Plaintiffs from accessing interactive features his personal Twitter account amounts state action. But Court has explained we should “look nature officer’s act, simply his duty status.” Pitchell v. Callan 545, (2d Cir. 1994). By departing law state action, panel decision blurred line between actions performance official duties actions “in ambit their personal pursuits.” Id (quoting Screws United States (1945)). And fixating President’s recent tweets, opinion concurrence fall into logical fallacy— i.e. some official Twitter turns all use, even all tweets, into state action. Our precedent calls more nuanced analysis focuses specific feature issue, which ability block users. communication does transform all activities into state action.
Finally, panel’s reliance evidence from factual record unmoored from state ‐ action doctrine introduces confusion about when official’s ‐ activity becomes state action. For example, it is clear from panel’s decision when Trump’s activity crossed into state action. Did it happen Inauguration Day? Upon particular “official announcement” from @realDonaldTrump? And how many “official” tweets does it take convert “personal” tweets into state action? panel decision raises difficult questions but provides little guidance for today litigants, lawyers, judges tomorrow.
II.
Even assuming state action, panel’s application First Amendment forum doctrine @realDonaldTrump poor fit, as is characterization account’s “interactive spaces” forum. opinion’s forum analysis strayed precedent two ways. First, it well established government engages its own speech, it permitted “speak itself” “select views wants express.”
Pleasant Grove City, Utah Summum
467–68 (2009) (citations omitted). Thus, where speech issue, analysis does apply.
Id
To avoid
*26
this result, panel disaggregated feed into initial tweets, which it recognized government speech, “his supervision interactive features Account,” which it excluded that speech. ,
Second, opinion erred finding created a forum by continuing Twitter’s features same way he did before taking office, even though “[t]he ‘does create forum inaction permitting limited discourse.’” Perry v. McDonald 159, (2d Cir. 2001) (emphases removed) (quoting Cornelius NAACP Legal Def. & Educ. Fund, Inc. (1985)).
A. Supreme Court has warned we should “wary notion partial analogy one context,” i.e. doctrine, “can compel full
range decisions such new changing area.” Denver Area Educ. Telecomms. *27 Consortium, Inc. FCC U.S. (1996) (plurality opinion) (Breyer, J .). “Having first arisen context streets parks, the public forum doctrine should not extended mechanical way” to new areas if it not “compatible [their] intended purpose.” Forbes at 672–73 (citation omitted). For example, Supreme Court has noted limited applicability public ‐ forum framework public television “public broadcasting general matter does lend itself scrutiny under forum doctrine.” Id. 675.
The panel here engaged just sort mechanical extension ‐ forum framework that Supreme Court has warned against. To shoehorn into ‐ forum doctrine, panel carved out “interactive spaces” tweets which they are connected. It acknowledged tweets speech, but then applied doctrine “interactive spaces.” This disaggregation Twitter’s features wholly artificial—Twitter’s own rules make no such distinction between “initial tweets” “interactive spaces.” panel then stretched concept forum, *28 which originally meant ensure that “members of retain strong free speech rights they venture into streets parks,” hold that may not personal account a private company’s website in a certain way. Pleasant Grove City , U.S. 469. engaged forced analysis personal pages government do “not lend [themselves] scrutiny under forum doctrine” way sidewalk or park might. Forbes
A few examples illustrate illogic applying doctrine connection government speech. If an official gives remarks allows participation supporters government’s policies, would not require opening floor opponents. Or if an official distributes pamphlets solicits letters from public, would not deprive official editorial discretion select which responses publish. Likewise, if tweeting official message were speech, then should deprive blocking certain users.
See, e.g. Walker Tex. Div., Sons Confederate Veterans, Inc.
S. Ct. (2015) (“The fact private parties take part design propagation message does extinguish governmental nature message transform government’s role into
*29
a mere forum provider.”);
see also Manhattan Cmty. Access Corp. Halleck
,
It would illogical impractical apply forum doctrine such scenarios by bifurcating government speech “interactive spaces” require airing competing views. That purpose such speech, including “interactive spaces” may accompany it, convey government’s views, create a public forum.
B.
Second, opinion erred concluding “intentionally” turned into forum. , 928 F.3d at It well established government can create forum “only by intentionally opening nontraditional forum discourse.” Cornelius U.S. at (emphasis added). We have explained “[t]he ‘does create inaction permitting limited discourse.’” Perry (emphases omitted) (quoting Cornelius 802).
None factors considered panel indicates that President intentionally opened his Twitter account to discourse. based its conclusion on factors such as general public’s access to “interactive spaces,” ability Twitter users to reply and retweet, holding out account as means employs to communicate, and expressive activity interactive spaces. 235–36. But none these factors speaks to intention, and record clear Donald Trump set up @realDonaldTrump to convey own views, to open for discourse. Nor “interactive spaces” Twitter intended to provide open access all. For one thing, only those with Twitter can retweet, reply, like tweet. Moreover, Twitter provides features like “blocking” precisely enable users limit access to and to curate activity accounts. Indeed, Twitter describes itself “a place share ideas and information, connect with your communities, see world around you,” explains “[i]n order protect very best parts experience, we provide tools designed help you control what you see what others can see about you, so you can express yourself Twitter confidence.”
Under panel’s reasoning, if public official speaks a platform automatically permits others comment, then official is responsible for creating public forum. This is inconsistent our holding government cannot create forum “inaction” alone, and it illustrates how strict application doctrine ill ‐ suited for social media. See Perry (citation omitted).
III.
Courts should be circumspect extending legal doctrines new evolving technologies outside realm judicial expertise. This particularly true result may have significant implications for interactions between officials public. opinion will reach far beyond Oval Office, creating uncertainty about use social media officials every level government. Public today routinely maintain accounts for official, personal, campaign use, they address issues concern all them. To sure, use unprecedented some respects. But now commonplace politicians accounts promote activities. key facts case—that had
*32
personal Twitter account, he used it tweet on matters relating his office, public able comment on tweets—are unique. Indeed, this case just one several similar lawsuits challenging right officials use personal social ‐ accounts in private capacity.
See, e.g., Hikind v. Ocasio ‐ Cortez
, No. 1:19 ‐ cv ‐ 03956 (E.D.N.Y. filed July 9, 2019) (suit against congresswoman for blocking user on personal Twitter account, since dismissed consent parties);
Campbell v. Reisch
No. 2:18 ‐ CV ‐ 4129 ‐ BCW,
Our decision case will affect how officials may media, making them less able defend themselves hate harassment. It will limit how may act capacity all aspects life, online otherwise, writing “right or privilege” requirement out state action doctrine. And will bind us apply doctrine *33 analyzing social ‐ media activity, even though framework poor fit how social media actually functions. These are issues “exceptional importance” merit review whole court. Fed. R. App. P. 35(a)(2). decision concludes with statement “the best response to
disfavored speech matters concern more speech, less.” Despite concurrence’s premature reassurances contrary, seems likely me decision will have unintended consequence creating less speech if social media pages officials overrun harassment, trolling, hate speech, which will be powerless filter. panel’s effort extend doctrine mismatch highlights why courts “should cautious applying our free speech precedents internet” thus “should proceed circumspectly, taking one step time.” Packingham North Carolina S. Ct. (2017) (Alito, J ., concurring judgment).
For these reasons, I respectfully denial rehearing en banc
Notes
[1] dissent misconstrues statement views making “extraordinary claim that everything President does is state action that test state action is different for President.” Dissent n.1. That an inexplicable misreading analysis. What fails ever seriously address when President blocks users, he blocks them from access an official from engaging an otherwise open, dialogue created make official statements. Far from saying everything does state action, narrowly concluded President runs afoul First Amendment he prohibits individuals speaking otherwise public, open which he makes statements.
[2] Section Communications Decency Act explicitly allows websites (among others) filter censor content posted platforms without thereby becoming ‘publisher.’ U.S.C. § 230(c)(1) (“No provider or user interactive computer service shall treated publisher speaker any information provided another information content provider”). Understood correctly, Forbes thus underscores accuracy panel’s analysis.
[3] panel’s analysis congruent Supreme Court’s conclusion Se. Promotions, Ltd. Conrad privately owned theater under long term lease city nonetheless “a designed dedicated expressive activities.”
[4] This page can found help.twitter.com/en/using twitter (last visited March 2020).
[5] This allows any Twitter user except those blocked by original tweeter’s account view reply tweet. “Locked” “Private” Accounts viewable only followers account, tweets cannot “retweeted” anyone, even followers.
[6] An @ mention creates hyperlink tweet named.
promoted infrequency of en bancs. Id. He perceptively notes benefits flow each us allowing panels decide own cases, being reluctant oversee work one’s colleagues through en banc review. Judge Newman concluded report en banc practice Second Circuit following reflection: As membership court changes, there always possibility pattern rare bancs might change. . . [T]hose coming onto court . . . will find rather firmly established tradition. I hope they—and all who observe work this Court—will appreciate benefits our practice infrequent bancs has conferred upon our institution. Newman, supra I respectfully submit statement accompany denial rehearing en banc.
[1] Judge Parker’s statement views respect denial rehearing en banc (the “concurrence”) misreads Edmondson Oil when asserts that actions were “fairly attributable State” “[t]he President quintessentially qualifies party whose ‘official character . . lends weight State decisions.’” Concurrence (citation omitted). Edmondson Oil does support extraordinary claim everything does is state action or test state action is different for President. This language simply means actor state official, second prong state action test satisfied, so only question whether has “exercised some right privilege created State.” That same question here, which opinion completely overlooks.
[2] panel’s reliance Southeastern Promotions, Ltd. v. Conrad U.S. 546 (1975), misplaced. There, was undisputed government used facilities were “under their control.” Id . So Court had no reason consider whether state action issue.
[3] For example, when incumbent officials run for reelection, we ordinarily understand them be expressing mix personal views. But panel’s reasoning would seem foreclose incumbents from selecting who can participate campaign rallies, online groups, or personal events. Similarly, when officials make statements about their faith offer prayers, we do understand them violating Establishment Clause. See Van Orden Perry (2005) (Stevens, J dissenting) (“Our leaders, when delivering addresses, often express their blessings simultaneously service God their constituents. Thus, deliver speeches, we recognize words exclusively transmission those oratories have embedded within them inherently views speaker individual member polity.” (emphasis original)). So too here. mere fact Donald Trump uses both
[4] concurrence points future updates Twitter’s platform believes will “highlight distinction correctly made” between tweets “interactive spaces.” Concurrence But possibility relevant features may change even before litigation has concluded should comfort us, but make us wary imposing rigid potentially constricting legal frameworks fast evolving technologies.
[5] How Control your Experience Twitter, https://help.twitter.com/en/safety ‐ ‐ security/control your twitter ‐ experience (last visited Mar. 2020).