tweets from the interactive features of the Account. Dissent at 8. The second objection is
that the President did not change the way he uses Twitter after he took office, and
therefore he could not have intended to create a public forum. Dissent at 7, 11. Again, I
respectfully disagree.
A.
First, the dissent worries that the panel “strayed from” this Court’s precedent
(which is never specifically identified) when it distinguished between the President’s
tweets, which it categorizes as government speech, and the ‘interactive space’ accessible
to the public, which the panel concluded constituted a public forum. Dissent at 2. The
point of departure of our analysis was that “whatever the challenges of applying the
Constitution to ever‐advancing technology, ‘the basic principles of freedom of speech
and the press, like the First Amendment’s command, do not vary’ when a new and
different medium for communication appears.” Knight, 928 F.3d at 237 (quoting Brown
v. Entm’t Merchants Ass’n, 564 U.S. 786, 790 (2011)).
A simple analogy to physical public fora makes it clear that the distinction
between a tweet and its interactive space is appropriate: at a town hall meeting held by
public officials, statements made by the officials are protected government speech. If,
however, public comment is allowed at the gathering—as it is on any tweet posted to
the Account—the officials may not preclude persons from participating in the debate
7