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.


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • icon
    Anonymous Anonymous Coward (profile), 20 Oct 2017 @ 8:57am

    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.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Oct 2017 @ 9:27am

    Trump's Twitter Account certainly is not Presidential.

    reply to this | link to this | view in chronology ]

  • icon
    Berenerd (profile), 20 Oct 2017 @ 9:32am

    So, when the "non-official" account causes millions to die because it got us into a nuclear war, Can Trump be tried for war crimes? Mass genocide of his own people.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 20 Oct 2017 @ 9:32am

    Ahh the US legal system.
    We'll lie to Judges, make up law, and because we said so is all it should require.

    Schrödinger's President.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Oct 2017 @ 9:33am

    The president, according to White House counsel, is able to occupy two states simultaneously thanks to the magical powers of Twitter.

    This seems to be the same mathematics they're using to try and undermine encryption.

    Welcome to the future of Quantum Legislation.

    reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 20 Oct 2017 @ 9:37am

    They should be grateful

    How did they get so lucky as to be blocked from Trumps tweets?

    Hopefully every journalist will be blocked next so I don't have to hear what nonsensical thing Trump will say next.

    reply to this | link to this | view in chronology ]

  • identicon
    Jason, 20 Oct 2017 @ 9:41am

    It's not very presidential to pointedly lock certain people out of public discussions.

    But it seems to be, to borrow a phrase, "modern-day presidential"...

    reply to this | link to this | view in chronology ]

  • icon
    Roger Strong (profile), 20 Oct 2017 @ 9:44am

    Sure, there's an actual official presidential Twitter account...

    Start tweeting at Trump that the official account is only for those who won the popular vote, then watch what happens.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Oct 2017 @ 9:47am

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

    The same can also be said for Hillary if she was President. Oh wait...

    reply to this | link to this | view in chronology ]

    • identicon
      JEDIDIAH, 20 Oct 2017 @ 9:51am

      Not quite.

      She was a Senator and Secretary of State.

      I would have no problems with Cruz moderating for off topic nonsense.

      It's silly to get butt hurt about being filtered in someone else's peanut gallery when you have your own soap box on the same website.

      reply to this | link to this | view in chronology ]

  • icon
    orbitalinsertion (profile), 20 Oct 2017 @ 9:48am

    Schrödinger's Trump (Twitter account): A superposition of presidential and non-presidential states. Wavefunction only collapses when observed by the DOJ.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Oct 2017 @ 10:13am

    "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.

    reply to this | link to this | view in chronology ]

  • identicon
    Baron von Robber, 20 Oct 2017 @ 10:17am

    Appointments by the President is a reflection of the President's demeanor, will and agenda. And as one appointed person so succinctly and eloquently pointed out, the President is "a fucking moron!"

    reply to this | link to this | view in chronology ]

  • icon
    JimTell (profile), 20 Oct 2017 @ 10:40am

    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.

    reply to this | link to this | view in chronology ]

  • identicon
    AnonCow, 20 Oct 2017 @ 10:47am

    If it is not considered to be an official Twitter account of the President and it is truly an individual account only, it should not be given any latitude on content and therefore be banned for hate speech and threats.

    Which is it?

    reply to this | link to this | view in chronology ]

    • icon
      Roger Strong (profile), 20 Oct 2017 @ 11:26am

      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.

      reply to this | link to this | view in chronology ]

    • icon
      JimTell (profile), 20 Oct 2017 @ 11:40am

      Re:

      Doesn't matter if it is official or not, still not a public forum. Twitter should treat it however they want, it's their application.

      reply to this | link to this | view in chronology ]

      • identicon
        Thad, 20 Oct 2017 @ 2:46pm

        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?

        reply to this | link to this | view in chronology ]

        • icon
          JimTell (profile), 20 Oct 2017 @ 2:55pm

          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.

          reply to this | link to this | view in chronology ]

  • identicon
    Whoever, 20 Oct 2017 @ 10:55am

    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.

    reply to this | link to this | view in chronology ]

  • icon
    hiroshimarrow (profile), 20 Oct 2017 @ 11:13am

    Private or Public?

    Is twitter privately owned, or is there public capital invested in it?

    Shouldn't officials use publicly available services, instead of privately owned? Email should be run through the government services, so why does twitter have to be different?

    reply to this | link to this | view in chronology ]

    • icon
      JimTell (profile), 20 Oct 2017 @ 11:43am

      Re: Private or Public?

      Good point. If mandated by law then yes government officials should only use government services. Until then it's open season.

      reply to this | link to this | view in chronology ]

  • identicon
    umar Tanu, 20 Oct 2017 @ 1:33pm

    Not Official

    The same can also be said for Hillary if she was President.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 20 Oct 2017 @ 2:10pm

    President Trump has set policy from his Twitter account, how can it possibly be considered an unofficial, personal account?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 21 Oct 2017 @ 3:52am

    People will die! LOL Who is it that won't die?

    reply to this | link to this | view in chronology ]

  • icon
    PaulT (profile), 21 Oct 2017 @ 4:04am

    Strange decision, considering the White House is literally on record as stating that his personal account should be treated as official government communication.

    reply to this | link to this | view in chronology ]

  • icon
    Padpaw (profile), 21 Oct 2017 @ 4:04am

    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.

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 21 Oct 2017 @ 4:32am

      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.

      reply to this | link to this | view in chronology ]

  • icon
    John85851 (profile), 21 Oct 2017 @ 9:43am

    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?

    reply to this | link to this | view in chronology ]

  • icon
    Jeremy Lyman (profile), 23 Oct 2017 @ 5:31am

    Schrodinger's President

    Prior to this year I don't think I would have been able to comprehend how a person could both be president and not president at the same time. Looking at Trump though, it totally makes sense. That man is not an American President; and yet he is...

    reply to this | link to this | view in chronology ]

  • identicon
    Wendy Cockcroft, 23 Oct 2017 @ 7:27am

    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!

    reply to this | link to this | view in chronology ]

    • icon
      The Wanderer (profile), 25 Oct 2017 @ 8:17am

      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.

      reply to this | link to this | view in chronology ]

      • icon
        PaulT (profile), 25 Oct 2017 @ 8:37am

        Re: Re: Way around the block

        Even that might not be a problem except tha Trump is both a) expressly blocking people based on political and other views, and b) often using Twitter as the sole method of communication on certain issues.

        reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 25 Oct 2017 @ 8:40am

      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.

      reply to this | link to this | view in chronology ]

  • identicon
    Nicole N, 14 Nov 2017 @ 5:01pm

    Twitter Posts

    President Trump tends to speak whatever is on his mind on Twitter, but he cannot be sued because they are not personally harming one's rights. If he did, would he be sued or would it just go under Congress' attention?

    reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Special Affiliate Offer
Anonymous number for texting and calling from Hushed. $25 lifetime membership, use code TECHDIRT25
Report this ad  |  Hide Techdirt ads
Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.