• by Wendy Davis , Staff Writer @wendyndavis, August 16, 2018

Tech companies appear to be concerned that they might face some unintended consequences as a result of a battle over whether President Trump violates the First Amendment by blocking critics on Twitter.

In court papers submitted this week, the Silicon Valley group Internet Association is urging a federal appellate court to clarify that Twitter can continue to block users -- regardless of whether Trump may legally do so.

"Even if this Court finds that government actors who operate Twitter accounts are restrained by the First Amendment, it should make clear that Twitter itself is not similarly restrained," the Internet Association writes in a proposed friend-of-the-court brief filed with the 2nd Circuit Court of Appeals.

The group's papers come in a court battle that began last July, when the Knight First Amendment Institute at Columbia University and seven critics of the president who were blocked by him argued that the @realDonaldTrump account is a "public forum" -- meaning it's comparable to city streets, parks and other locales where the government can't prevent people from speaking based on their views. The users asked U.S. District Court Judge Naomi Reice Buchwald in New York to declare the blocks unconstitutional, and to order Trump and other officials to remove the blocks.

Buchwald agreed that the blocks are unconstitutional. "The blocking of the individual plaintiffs as a result of the political views they have expressed is impermissible under the First Amendment," she wrote in a sweeping ruling issued earlier this year.

The Department of Justice recently asked the 2nd Circuit Court of Appeals to reverse that decision on the grounds that Trump's account, @realDonaldTrump -- which the president uses to broadcast official policy statements -- is "personal." The DOJ argues that Trump's blocks mark "an exercise of his personal, not governmental, authority to exclude individuals from that private account."

The Internet Association says it isn't taking a position on whether Trump's blocks are legal. Instead, the group is asking the appellate court to issue a "narrow" ruling.

"This Court should be ... cautious when making decisions at the crossroads of private property and an asserted public forum," the Internet Association writes. "Here, that cautious approach counsels in favor of ensuring that any decision is expressly limited to the exceptional facts of this case."

The organization is obviously concerned that a decision declaring Trump's account a "public forum" will be misinterpreted to mean that all Twitter accounts are public forums. If so, Twitter could lose the right to suspend or block accounts over alleged terms of service violations.

The Internet Association's concerns aren't farfetched -- especially given that Twitter has been sued at least twice in recent months for suspending or blocking accounts. A judge threw out one of the complaints, but a different judge allowed the second case -- a lawsuit brought by white nationalist Jared Taylor -- to proceed. (Twitter is currently asking a California appeals court to halt Taylor's case.)

Google has also been accused in court of "censorship" for allegedly discriminating against conservative clips on YouTube, and Facebook has been sued for allegedly blocking the group Sikhs for Justice. So far, Google and Facebook have prevailed in those matters.

But even though the companies have (largely) won in court, they are facing pressure on Capitol Hill, where Congress has held hearings over whether tech platforms are suppressing speech by conservatives.

Rep. Ted Lieu (D-California) rightly called the first hearing "stupid and ridiculous," noting that the First Amendment doesn't prevent private companies like Facebook, Google and Twitter from deciding what to publish.

The Internet Association is now calling on the court to reaffirm that principle.

"It is possible that some will assert that Twitter itself is ... subject to First Amendment constraints," the organization writes. "It is not."