Twitter Ruling Blurs the Line of Public and Private



It’s hard to escape the world of social media in 2018.  Your business undoubtedly uses it for marketing or news releases, your family uses it for fun and to be informed and your employees use it in the same way.  It’s become an online public square complete with trolls hiding in the corners.  But a recent ruling certainly raises questions about what you can post, who you can block and what you actually own.

This week, a federal judge in New York ruled that President Donald Trump cannot block accounts on Twitter, saying that he was effectively violating the U.S. Constitution by preventing certain Americans from viewing his tweets.  That ruling has raised a lot of questions about who can and can’t use the space and practice free speech, much like you would imagine in a public square.

“The order was very careful to limit this to just the President,” says intellectual property attorney, and co-founder of Erise IP, Adam Seitz.  “Even though it was his personal account he was acting as the president and using his personal account in that capacity.”  But, and there’s always a but, “One order always leads to others and it certainly raises the question of if someone has the right to respond in this forum then it should apply to every governmental or public official.  And then it raises the question of what’s the difference between any public speech?  I can say whatever I want in the city square, why shouldn’t I be able to say whatever I want on Twitter, which comes back to the question of where’s the private account aspect of that anymore or is there even a private account on Twitter anymore?”

That’s the key point that Seitz says this ruling missed.  And the rabbit hole of ownership runs deep.  “Twitter, like almost every single social media outlet out there, actually has the full right to whatever you post on their website.”  Know those terms and conditions boxes where you check ‘yes’ when you sign up?  “Twitter, Facebook, Instagram, you might think you own the material you’re posting on there but they all have an absolute, unquestionable right to use whatever you put on there, however they see fit.  And, Twitter now among many others, now say they have the right to edit or delete your content if they find it hateful.  So it’s an interesting question of who owns what speech and it (the ruling) seems to have glossed over that aspect of the user group.”

So back to the point of public vs. private.  Seitz says the ruling also noted that this does not apply to an elected official using a social media account as a family where they did not incorporate their governmental duties in their posts.  That only took Seitz further down the rabbit hole of questions.  “People aren’t really two different things these days.  Once a person becomes a politician or a celebrity or whatever it is, everything they do or say seems to be in that formal capacity.”

The ruling brought a lot of cheers from those who had been blocked by Trump but it won’t end there.  The blurred line of social media as both a news source and a personal account opinion forum make it extremely difficult to define.  Therefore this judge setting precedent that this is a public forum calls into question every public forum we’ve considered in the past.  “If you went down to the courtyard square in a small town and gave a political speech, no one would ever assume that whoever owned that square would have the right to come out and say ‘I own what you just spoke about or used’ or ‘I didn’t like what you said I’m not going to allow anybody to come in’ but that’s essentially what the terms of service provide for from Twitter or from Facebook or other social media.”