Lawyers: Trump's Twitter Account Not Presidential; Also: Trump Is President, Can't Be Sued

from the block-chain dept

A lawsuit filed against President Trump alleges a host of First Amendment violations stemming from Trump’s Twitter blocklist. According to the suit filed by the Knight First Amendment Institute at Columbia University, an official government account shouldn’t be allowed to block users from reading tweets. Sure, there’s an actual official presidential Twitter account, but nothing of interest happens there. Everything from retweets of questionable GIFs to arguable threats of nuclear war happen at Donald Trump’s personal account. But everything’s all mixed together because the president insists on using his personal account (and its blocklist) to communicate a majority of his thoughts and opinions.

The government’s lawyers are now forced to defend the president (and his blocklist) from these allegations. It’s not an easy job. In fact, as Alison Frankel reports, it requires a significant amount of cognitive dissonance.

First, the government has argued the Twitter account President Trump uses most is not a publicly-owned (read: government) Twitter account.

The brief’s primary argument is that @realdonaldtrump is not a public forum. It’s a private platform governed by the rules of a private company, the Justice Department said. The president opened his account before he was an elected official, the brief said, and his continued operation of the account is not a right conferred by his election to the presidency. “The president does not operate his personal Twitter account by virtue of federal law, nor is blocking made possible because the President is clothed in Article II powers,” the brief said.

This makes some sense, even if Trump’s use of this account to announce positions on issues and potential government action undermine the “not a public forum” argument. He did have this account prior to the presidency, but perhaps he should have abandoned it for the official presidential account once he took office. Even though this argument is somewhat credible, the next argument from the government almost completely undermines it.

President Trump, in other words, is not flexing his presidential power when he tweets as @realdonaldtrump, according to the Justice Department. But at the same time, Justice argued in the summary judgment brief, the president can’t be sued for posting to his private account because he’s acting as the president.

He’s not the president (so to speak) when he tweets from his personal account. But he is the president, so he can’t be sued. No matter how many accounts he blocks. The president, according to White House counsel, is able to occupy two states simultaneously thanks to the magical powers of Twitter.

It sounds ridiculous (and it is), but as Frankel points out, seemingly contradictory arguments are made all the time at this point in the pleadings. The judge is one that decides which arguments move forward — sometimes even without calling out lawyers for arguing against their own arguments.

Stripping the case of all legalese, the account Trump prefers to use should be considered an official account. And if it’s an official account, Trump needs to lay off the “block” button. You can’t force citizens to jump through hoops to view proclamations made in a de facto public square. Even if Trump can’t be sued, he should at least lift the blocks. It’s not very presidential to pointedly lock certain people out of public discussions.

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Comments on “Lawyers: Trump's Twitter Account Not Presidential; Also: Trump Is President, Can't Be Sued”

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52 Comments
Anonymous Anonymous Coward (profile) says:

It's not contradictory

What I hear is the DoJ saying “Whatever works for us, now go away, we have assets to seize and your petty squabble is costing us money”.

Also, doesn’t Twitter own all Twitter accounts and the user rents the ability (not right) to control a particular account? It appears that the DoJ lawyers have confused themselves.

Anonymous Coward says:

“As discussed in Section II, infra, Defendants contest the premise that the President acted in his official capacity, but even accepting Plaintiff’s premise as true, this Court would lack jurisdiction to grant the relief requested.”

That’s not contradictory. That’s not ridiculous. When discussing a matter of law (not fact), it’s perfectly valid to contemplate that the court might not agree with your legal conclusions, and prepare another legal argument.

JimTell (profile) says:

Twitter is Not a Public Forum

Twitter, Facebook, etc. are private forums run by private companies, they are not public forums. The companies can cancel accounts and change the rules whenever they want.

The first amendment guarantees the right to speak not the right to hear speech. If you can’t get to location of a speech you do not have first amendment grounds to sue.

Everyone wanting to and actually suing over Trump blocking should be yelling at Twitter instead. Twitter should take away the ability to block or mute other users from anyone they deem to be a public official.

Roger Strong (profile) says:

Re: Re:

Wait for it….

A single Trump tweet shaved off about $1.2 billion of Lockheed Martin’s market value. But that’s OK, because he was Making America Great Again.

Meanwhile China aims to become the world’s leading economic power. It’s not at all far-fetched. And a Chinese President has far more control than an American one. There’s ever more investment in China by American companies.

Before long a calculated tweet by President Xi could shave a $billion off an American company’s market value. That’s when the government, the courts and everyone else will demand that Something Be Done about presidents and Twitter.

Thad (user link) says:

Re: Re: Re:

Everyone wanting to and actually suing over Trump blocking should be yelling at Twitter instead. Twitter should take away the ability to block or mute other users from anyone they deem to be a public official.

(one hour later)

Twitter should treat it however they want, it’s their application.

So which is it, Jim?

JimTell (profile) says:

Re: Re: Re: Re:

Both.

People should be upset with Twitter and demand they change the way public officials are treated on Twitter by removing block and mute. I support this position and think it makes sense.

Twitter as a private business can ignore these demands if they think its in their best interest. Twitter can also censor or delete Trumps account if they believe he has violated their rules. Twitter could also implement the suggestion and make everyone but the President happy.

Bottom line Twitter can do what it wants. The public can yell for change and if Twitter ignores them the public can stop using Twitter. Free enterprise at it’s best.

Whoever says:

Spicer already sunk the "not official" argument

http://time.com/4808270/sean-spicer-donald-trump-twitter-statements/

Sean Spicer Says President Trump Considers His Tweets ‘Official’ White House Statements

And let’s use the correct word for the contradictory arguments: doublethink.

"Cognitive dissonance" implies that there is conflict in the mind of the person with contradictory views. Clearly with Trump and his supporters, there is no conflict in their minds.

Padpaw (profile) says:

I am sorry what? People are trying to sue Trump because he has blocked them from posting on his twitter account?

I would think any such lawsuit would be thrown out as laughable to begin with. What happens if we make the rule you cannot block anyone from your twitter account because that violates their rights somehow to read or harass you on it.

It is not the only place to see what Trumps posts, if it was they may have a leg to stand on.

PaulT (profile) says:

Re: Re:

It actually makes complete sense when you think of the bigger picture. Trump insists on conducting official communication through his Twitter account, which makes it a de facto government forum. Trump is blocking people from that forum based both on personal grudges and for their political views. This means that groups of people do not have their voices heard equally, since while you can read the insane idiocy spouted without an unblocked account, you cannot participate in the public forum.

If this were a physical medium, and political opponents were being loudly excluded, there would rightly be an outcry. I see no reason why this should be different just because Trump prefers to communicate in sound bytes from his phone.

John85851 (profile) says:

Real-world comparison

Suppose Trump decided to give his State of the Union address at Trump Tower instead of in the Capitol Building.
The Capitol is a government building which is open the public, but Trump Tower is privately owned.
Now suppose Trump told the manager of Trump Tower not to let certain people inside.
Could these people sue because they were blocked from hearing Trump’s State of the Union address?

Wendy Cockcroft (user link) says:

Way around the block

I don’t get the fuss; you have only to view the account either while logged out or via another browser on which you’re not logged in. All that blocking does is stop you tweeting @ the president. I’ve been pre-blocked by a few people and that’s what I do if I see an unavailable tweet; fire up another browser to view it in there. Problem solved!

The Wanderer (profile) says:

Re: Way around the block

The problem isn’t inability to receive what is sent via this channel; the problem is the inability to send via this same channel, or more particularly, the selective denial of that ability to specific people.

The inability to address the President via what is apparently one of his primary acting-as-President official channels, when other people are able to do so, is itself the problem at hand.

If he didn’t make himself accessible via Twitter at all, that would be one thing; there’s no right to a direct channel to the President from members of the public. (Maybe there should be, but that would probably be impractical, and in any case would be a separate argument.)

Similarly, if he made himself accessible via Twitter only on a "whitelist" basis – e.g. setting it up so that the only @realDonaldTrump tweets he sees are those from his actual friends, et cetera – that would not be a public forum in any meaningful sense, and the large majority of people who do not have access to contact him that way would have no standing to complain over lack of that access.

But if he’s making himself accessible via Twitter to most of the public, while denying the rest of the public that access on a "blacklist" basis, the people to whom he is denying that access have a legitimate complaint.

PaulT (profile) says:

Re: Way around the block

So, it’s ok for the government to exclude you and people who agree with you on certain communication channels, so long as you have the ability to use a workaround to read what they said (but not reply, as people who have not been blocked can do easily)?

You may not have thought through the actual issues being raised.

Your arguments on other Twitter accounts are not the same as one which the president has opted to use as a de facto exclusive platform for official policy.

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