selectively exclude questioners with viewpoints that are disfavored by the official is
inconsistent with the First Amendment. “It is axiomatic that the government may not
regulate speech based on its substantive content or the message it conveys . . .
Discrimination against speech because of its message is presumed to be
unconstitutional.” Rosenberger, 515 U.S. at 828.
B.
The dissent, citing Arkansas Educ. Television Comm’n v. Forbes, contends that we
apply public forum precedent to the President’s use of the Account in a ‘mechanical
way.’ 523 U.S. 666, 672–73 (1998). I disagree. In Forbes the Supreme Court observed that
the public forum doctrine first arose in the context of streets and parks, and warned
against a “mechanical” extension of the doctrine to television broadcasting. Id. Forbes
identified two features of parks and streets that television broadcasting does not share:
“open access” and “viewpoint neutrality.” The Court found that, because television
channels create and publish their own content, they “are not only permitted, but indeed
required, to exercise substantial editorial discretion in the selection and presentation of
their programming.” Id. at 673.
Twitter possesses both critical attributes identified by the Court in Forbes that
public broadcasting lacked. First, Twitter is open to the general public. The only
limitation Twitter places on creating an account is age‐based: those under 13 years of
age may not use its services. See Twitter Terms of Service at twitter.com/tos (last visited
9