To clear up a couple of points: Under this explanation, Twitter could have (if they were so inclined) ban people that they perceived as e.g. being rude to Trump? So long as the action wasn't taken directly by Trump or another governmental actor, it would have been fine? Also, out of curiosity, are there any other examples that you can reference in which the management of a public forum is entrusted to a private entity which also has the power to censor speech in that forum?

@Geoffrey Twitter can ban anyone for any reason. But Twitter is not a public forum. Trump made his account a public forum. Think of it as... Twitter is a hotel. They rent a meeting room to Trump. Trump holds public speeches there. As he uses that room as a public speech forum, he may not throw out peple. Then, Twitter does no longer lease the room to Trump and throws him out.

@Geoffrey: (1) Yes, absolutely they could, and I think you'll find there are many other platforms on the Internet that do exactly that. (2) For instance, consider a sports stadium. The stadium owners can make a rule that all signs displayed within the stadium must say nice things about the home team, and eject any fan who disobeys. But if the government made such a rule, it would be unconstitutional.

Let me make sure I understand: Most public fora are in public spaces administered by the government. This public forum (not Twitter but Trump's Twitter specifically) is a public forum in a private space administered by a company. As a public forum, government officials obviously cannot prevent people from using it, but because it is administered privately, the obligations that the government would normally have as the administrators of the forum to protect expression do not apply to the actually administrators. So, there are two sorts of public fora: the normal kind and a privatized kind.

@Geoffrey: If you like. You can see for instance the ruling in Knight Institute v. Trump where the court discussed the precedent for the idea that a forum not owned by the government may still be "public" for the purposes of a First Amendment forum analysis, if it is "controlled" by the government. See from page 41. Note that whether or not it's a "public forum" is completely irrelevant to what Twitter may or may not do.

@Geoffrey I'd like to better understand where you're coming from. When you say "Most public fora are in public spaces administered by the government" what are you picturing in your mind? A public park, where a citizen can go out with a bullhorn and tell us their opinion would yes, be an example of a public fora. But where else are you thinking of? Personally, I think that most so-called public forums, are actually privately owned and operated.

@Trish Could you elaborate on how Twitter is more like a hotel than it is like a privately owned plaza or atrium, which under Pruneyard Shopping Center must accommodate free speech even though it is private property?

@LeeC. The free speech rights of the respondents in Pruneyard were derived from the California constitution, not the US constitution.

@LeeC. they can lock out people for arbitrary reasons. Because the people agreed to that in the TOS

@CGCampbell Well, a sidewalk (perhaps one outside of a courthouse or a prison or an abortion clinic), a community theater, a meeting room in a municipal building, a park certainly, or any other public space not on private property. My confusion stems from the fact that the government seemingly created a designated public forum when Trump continued using his personal Twitter account. I would anticipate that were that the case then Twitter would have an obligation to safeguard that public space until it was no longer public (i.e. Trump is no longer president) since they totally control it.

Based on the clear answer here, it seems the argument is that if POTUS operates anything that amounts to a de-facto public forum, then it must be operated according to the rules for such forums. It does not follow from this that POTUS can demand to be given the means to create such a forum by private entities, and they are no more obliged to continue providing those means than they were obliged to provide them in the first place (especially if she is violating the terms by which they were granted in the first place - see @Trish on TOS.)

To clarify, a government officer can regain viewpoint discrimination abilities if they resign, right?

ISP guy here. That parenthetical doesn't work. You lose Safe Harbor when you moderate content so much that staff surely saw the offending content. Sandboxing, moderating or banning users is the very opposite of that: muzzling problem infringers is a powerful tool to let you keep everyone else unmoderated. User bans reduce the need for moderation, so it actually helps your Safe Harbor protection.

@Harper: That is contrary to the plain wording of section 230, which says nothing about the ISP's actual or constructive knowledge of illegal content. Such a standard does apply in, for example, 17 USC 512, but only because that statute contains explicit wording to that effect. 47 USC 230 contains no such carve-out (aside from the FOSTA amendment), and (c)(1) is clearly worded as an unconditional, blanket grant of immunity.

Whoops, sorry! I just meant to say that nobody would have any luck trying to claim 230 says that banning users is "moderating", since it's actually the exact opposite of moderating (in the scope of 230's interest in that).

@Geofrey re: "Twitter could have (if they were so inclined) ban people that they perceived as e.g. being rude to Trump?" Twitter could and did ban some people for doing just that. There is at least one well-known example of a twitter account which responded rudely to every one of Trump's Twieets until that account was banned. I don't remember the details, but the account was ran by a pair of brothers who specialized in marketing. So it's possible that their content was even created as work for hire.

@Harper-ReinstateMonica you only lose 230 protections with respect to the content which you author. I don't believe there is a case of 230 protections being lost for the entire site at-large because of overly-restrictive moderation. EFF has a list of relevant cases.

"The First Amendment forbids the government and its agents from viewpoint discrimination" But how does blocking someone on Twitter constitute any such thing? If I block you, it doesn't in any way prevent your message from being seen by anyone but myself, and I could just as easily have simply ignored you. If I'm already uninterested in what you have to say, then blocking you makes zero difference to your effective audience. On the flip side, if Twitter bans me, my potential audience is greatly reduced, eliminating many potential actually-interested listeners.

@KarlKnechtel even if my blocking you prevents you from replying to anything I post?

Does it? How? What's preventing you from going to the submission form and composing a new tweet and @-ing me (just that I won't be notified about it)? The account is still public, so you can also still see everything I post by the simple expedient of being logged out, or in an incognito window. Although really it's Twitter's fault that such a pointless barrier exists.

@KarlKnechtel: I don't use Twitter much, but my understanding is that your timeline, which may be read regularly by your followers, also contains selected replies to your tweets. If you block someone, they can no longer reply to your tweets, and thus their messages will no longer be seen by your followers. So your blocking not only affects what you see, but also what your followers see.

@grovkin Yes, if you moderate your site hard enough, you become like the traditional printer who chooses to print illegal copies of Harry Potter and ought to know what's being printed. An example of "hard enough" would be if ALL posts needed to be approved by staff prior to them appearing, which was a common mod method before DMCA, and is the traditional Internet meaning of "moderated". If J random user started posting Harry Potter chapter by chapter, and staff approved that, no Safe Harbor.

The issue I have here is that it isn't the government that publishes the timeline, but Twitter. If the government held a meeting in a public place, they wouldn't be able to ban protests, sure. But if the news networks decided not to show the protests, that would be on them. IOW: I argue that it's Twitter's fault that the block feature works that way, and it's they who are suppressing communication here. It's not a natural property of the "meeting room" they're "renting out", but instead something that Twitter built in - and there isn't any government coercion behind it working that way.

@KarlKnechtel When Trump blocks someone from viewing his tweets, that also prevents them from replying to those tweets. So Trump can allow people who agree with him to build an audience by replying to his tweets but prevent people who disagree with him from doing so. That kind of thumb on the scales by a government official, when used on the basis of the viewpoint expressed, is prohibited by the First Amendment. Twitter can be as biased as it wants, of course. Twitter can provide such a feature but Trump, as a government official, cannot use it on the basis of viewpoint.

Again, I think it's Twitter that's applying the bias in these cases. We have Trump (or Biden now, or any other influential person for that matter, not just in government) selectively deciding that certain people are or aren't worth listening to; Twitter takes the people who are deemed "worth listening to" and broadcasts their replies to a wide audience of otherwise-uninvolved third parties, because of the site design. That's not a natural consequence of Trump putting his metaphorical fingers in his ears. That's site behaviour that was deliberately architected.

[con't.] Metaphorically, the government isn't pulling out protest signs here; the media is training cameras away from them because they have an internal bias against showing things that the subject of the story finds distasteful (which is a terrible attitude for media to have).

@KarlKnechtel: The court in Knight Institute disagreed. Page 43: "Though Twitter also maintains control over the @realDonaldTrump account (and all other Twitter accounts), we nonetheless conclude that the extent to which the President and Scavino can, and do, exercise control over aspects of the @realDonaldTrump account are sufficient to establish the government-control element as to [...] the interactive space associated with each of those tweets."

(not a lawyer) In my head, it wasn't just that Trump was an officer of the United States. If @RealDonaldTrump was a personal feed (and he talked about food, sports, the weather, whatever) that's one thing. But he announced administration policy via Twitter, he fired prominent government employees via Twitter. He made his Twitter feed a part of the government.

Yes, and I'm saying that I think the ruling is not justifiable according to a common-sense understanding of how the technology works - as is common whenever technology is involved. Because the judges and lawyers don't understand what's possible or how things work, they reason by analogies that frequently miss the most important aspects of the situation.

@KarlKnechtel the judges actually do understand. They did Analogize Twitter to a venue operator: Te venue operator has rules. They rent a room to Trump for his press conferences, which need to be open to public because he announces stuff there. But the Venue does not need to let in everybody (some people are banned from it). Trump was allowed to mute people because he doesn't have to listen to them, but he was barred from blocking them, as that made the discourse on the topic impossible.

@Harper-ReinstateMonica no matter how "hard" you moderate your site, you will not lose the de jure 230 protection, for the site at large. The fact that you may lose de facto 230 protection, for the site at large, is besides the point. What's being discussed is that you don't lose 230 protection, as a punitive measure, for the bait-n-switch of attracting an audience under the guise of creating a platform; all the while treating the content created by that audience as your own, by the virtue of applying arbitrary editorial decisions to it. "Arbitrary" here means not always comporting to TOS.

@Geoffrey In response to you asking about public forums managed by private entities that can censor speech, look no further than the difference between newspapers and bookstores. The distinction between the two is the reason why the infamous Section 230 exists today. arstechnica.com/tech-policy/2020/06/…