I want to revisit something that I posted months ago. Sooner or later, a court is going to have to assess whether the President’s tweets constitute state action.
Suppose that Mika Brzezinski decided to sue the President for libel based on what he tweeted. Before reaching the merits, the President’s lawyers would probably contend that he has absolute immunity from tort claims for his official acts and that his tweets are official acts.
There is litigation pending, though, in which some people who have been blocked by the President from his Twitter account are claiming that he cannot do that just because he does not like what they are saying. This amounts, they argue, to viewpoint discrimination under the First Amendment since the President’s Twitter account is a state actor.
If the President’s argument against the hypothetical libel claim is correct, then the claim by the folks blocked on Twitter must also be correct at least with respect to the state actor issue. I don’t see how the tweets can be official for purposes of a libel suit but unofficial for purposes of creating some sort of public forum under First Amendment doctrine. It is, of course, possible to exclude people from a limited public form with sufficient justification, but that’s a separate question.