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Trump’s Twitter: Social Media Ruling Leads to Challenges to President’s Practices

As we’ve already discussed, a recent court ruling determined that when a politician blocks somebody from a social media account used for official business-even if made through private channels-it can be a violation of First Amendment rights. This is potentially bad news for President Trump as he is possessed of both an irresistible urge to tweet things normally left for official presidential announcements and a simultaneous near compulsion to retaliate to all criticism. So, it should come as no surprise that he has banned a number of people from the personal twitter account that he has used for everything from outlining political positions to-in the case of the recent ban on transgender people in the military-making proclamations of presidential actions not even the Pentagon is privy to.

Trump’s penchant for taking off-the-cuff political positions and (as seen in his recent long delay in condemning Neo-Nazi activity in Charlotte, instead choosing to blame “both sides”) often less than politically sensitive opinions have caused headaches for his own party, cabinet, and Congress in general. This has led to a number of-usually dead on arrival-laws to limit his ability to tweet. Just recently, the Communications Over Various Feeds Electronically for Engagement (COVFEFE) Act was introduced. The act would have classified tweets as presidential records. This would have prevented Trump from deleting his tweets under the Presidential Records Act.

This was obviously in response to the President’s well publicized “covfefe” tweet where he sent out a tweet which was partially gibberish-although former White House Press Secretary Sean Spicer told the media that Trump used the word intentionally and it had meaning known to “a small group of people.”

While the “covfefe” tweet led to the proposed act. The District Court’s ruling has led to a class action lawsuit brought against Trump for blocking political dissidents-and unlike the COVFEFE Act this lawsuit has a real chance of success.

The Lawsuit Against Trump

The Knight First Amendment Institute has brought a lawsuit alleging that that Trump has violated the First Amendment rights of seven U.S. citizens by blocking them from his Twitter account. Each of these people responded to the President’s tweets by criticizing Trump’s politics and positions and promptly found themselves blocked for it either by the man himself or by the White House Staffers who moderate his account.

There are some strong arguments here. However, as we mentioned in the first section of this article, the case is not a one-to-one match to the recent case ruling against Chairwoman Randall. Trump has certainly blocked people based on their political viewpoint. However, that is only one half of the considerations. The case will hinge on whether President Trump’s Twitter account is a public forum. For this twitterreason, the elements in the Chairwoman’s case can be useful in analyzing the strength of the case against Trump.

The District Court ruling looked at: 1) whether the account arose out of public or personal circumstances; 2) whether the account includes actions facilitated by the authority of the politician; 3) whether the account was used as a tool of governance; 4) used government resources to operate and 5) the trappings of office associated with the account.

Here, Trump did not make his account for a government purpose like the Chairwoman did. As a celebrity figure prior to his election, Trump has had the account for years and certainly didn’t make it with the purpose of spreading his politics-although he has never made them a secret on his account. However, this is just one element of the considerations, from here the case gets much worse for President Trump.

The Chairwoman got in trouble for making announcements related to government action on her Facebook page. Trump has made announcements such as the transgender military ban which are the first announcement of new political positions of the Executive Branch of the United States of America. He’s announced several changes in his cabinet staff and executive orders via the account. Sean Spicer has outright stated that the account should be “considered official statements by the President of the United States.” Other Trump administration advisors have cited his tweets as official statements. He holds back nearly no issue of governance on the account–often to the point of being accused of risking state secrets. His account has been cited in court cases as his official position on issues such as the Travel Ban executive order. To say that Trump has taken actions facilitated by his authority and as a tool of governance is an understatement.

President Trump also has certainly used government resources in operating his Twitter account. While he still has the official @POTUS and @WhiteHouse accounts, Trump generally prefers his personal account and has White House staffers who moderate his account with the ability to block and unblock Twitter users and commenters. He also has aides who occasionally draft and post tweets for him.

Unlike Chairwoman Randall’s Facebook page, the immediate imagery and branding on the page does not include official presidential imagery. However, the account is registered to the “45th President of the United States” and posts include an enormous amount of POTUS imagery.

As you can see, even if each element doesn’t fit the bill, in a couple of ways Trump’s Twitter account far outdoes Chairwoman Randall’s case when it comes to creating a public forum. We’ll have to wait and see how the case progresses. However, there’s a real chance that this ends up coming down against Trump.

What Would a Ruling Against Trump Mean

If the court comes down against Trump, it will mean that he has violated the First Amendment by engaging in viewpoint discrimination. However, on a more practical level the impact will be more limited. Trump will be forced to unblock the plaintiffs and will no longer be able to block people engaging in political discourse on his Twitter. This won’t include all criticism. Posts not related to politics can still be removed. However, blocking people from speaking altogether from the forum would likely still be unconstitutional.

To be frank, it seems likely that Trump has created a public forum by using his Twitter account the way he has. The chances are this case won’t go his way. However, no case is guaranteed-especially when brought against the President. We’ll have to wait and see where this one goes and if Trump will be forced to listen to his critics.

Jonathan Lurie


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