As with the tweet concerning Iran, I believe that under no rational view can tweets such
as these be considered “personal.”
In determining whether the government has “intentionally opened a
nontraditional forum for public discourse” the Court looks to the “policy and practice
of the government” as well as “the nature of the property and its compatibility with
expressive activity.” Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 802
(1985); see also Knight, 928 F.3d at 237‐39. The Account constitutes a public forum under
both considerations the Supreme Court prescribed for forum analysis in Cornelius. As
the panel noted, “[o]pening an instrumentality of communication ‘for indiscriminate
use by the general public’ creates a public forum.” Knight, 928 F.3d at 237 (quoting Perry
Edu. Ass’n, 460 U.S. at 47). The President, upon assuming office, has “repeatedly used
the Account as an official vehicle for governance and made its interactive features
accessible to the public without limitation.” Id. I continue to believe that this
assessment is correct.3 Importantly, even if the Account were a non‐public forum,
excluding individuals who express disfavored views is not permitted. Cornelius, 473
U.S. at 806; see also Minn. Voters Alliance v. Mansky, 138 S. Ct. 1876, 1885 (2018).
Twitter is undoubtedly a forum compatible with expressive activity. Navigating
to Twitter’s “About” page (about.twitter.com) reveals a list of statements concerning its
The panel’s analysis is congruent with the Supreme Court’s conclusion in Se. Promotions, Ltd. v.
Conrad that a privately‐owned theater under a long‐term lease to the city was nonetheless “a
public forum designed for and dedicated to expressive activities.” 420 U.S. at 555.
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