Mute Court: Trump’s Precedential Twits

As far as I know, I’m not blocked by @RealDonaldTrump on twitter. But then, I don’t follow him because his twits aren’t of any real interest to me, and I find his communications painful to read. If there’s anything I should know about, it will be strewn across the media, and I will regret reading them.

Others, apparently, desperately want to see Trump’s twits but they can’t because they’ve been blocked. They could always see them in incognito mode, but that’s not good enough and they don’t believe they should have to right click to see what the president twits. I suspect they always demand the right to “seek redress” by responding with their own special expression of vitriol.

Can a president block people on the twitters? When Jameel Jaffer’s first suit from the newly-founded Knight First Amendment Institute at Columbia University was filed, it was disappointing. With so many First Amendment problems swirling around, being blocked from the president’s twits was unserious. It was a novel issue, and sexy at the time suit was filed, but trivial. And complicated. I suspect Trump might have muted these offending twitterers rather than blocked them had he better understood the mechanics of twitter, but block he did, and sue Jaffer did.

Argument was had on the issue before SDNY Judge Naomi Reice Buchwald, where questions were posed as to the proper analogy of twitter to something less unserious.

She asked whether Twitter was different from a public town hall, where government officials would be unable to pull the plug from a microphone to mute speakers with unwelcome views.

“Once it is a public forum, you can’t shut somebody up because you don’t like what they’re saying,” Buchwald said.

Baer said the appropriate analogy was not a town hall, but rather Trump choosing to walk away from someone at a public event.

Assuming twitter to be a public forum is itself problematic. Twitter can suspend or terminate a user at will, as it’s a private enterprise and subject to no public carrier limitations. But then, if you’re not tossed off arbitrarily by twitter, it has many of the indicia of the public square, where a few million random people can read and respond to each other’s cat pics and expressions of idiocy at will.

At the outset, there was a question of whether Trump’s use of twitter was as a private individual or as president. He solved that problem by using twitter to make official announcements of public policy and “speak” in his official capacity as president. Presidents can’t block Americans from learning what they’re saying and doing. But does that mean they can’t be blocked on twitter? New technology raises new questions.

Whether the act of blocking rises to a constitutional violation is the novelty of the case — in the law, it’s what’s known as a question of first impression, an issue no other court has decided before. That means there’s real pressure on the judge to get it right the first time. And with a tweeting president who is known for berating magistrates and getting his ardent supporters to dox them if they don’t rule in his favor, even more so.

Judge Buchwald gave it her best effort to get the parties to settle the suit rather than put her in the position of ruling.

The pressure was evident when Buchwald seemed to nudge the parties, in open court, to consider reaching a settlement behind the scenes. “You don’t necessarily want to risk law being made,” she said.

But, of course, both parties want exactly that, to make new law. For the Knight Institute, it would put them on the map to win against Trump. And for Trump, it would prove he’s not the blithering dolt everyone knows him to be.

There remains a genuine question of law — in the travel-ban controversy in particular, which the Supreme Court will settle soon — about whether his campaign promises and anti-Muslim tweets as a candidate can be imputed to later, official government acts. But as a public servant, no one really doubts that Trump’s tweets are a public concern, in more ways than one: They establish government policy, inform the citizenry about administration priorities, announce personnel changes, are a means of diplomacy, move financial markets, and, if Trump happens to be in a foul mood, could spark some global catastrophe.

While all of this is accurate, the implications of ruling that a president cannot block people on the twitters carries further implications as well. Can people be turned away from an event in a public forum because there is no room? What if they’re uninvited, or dressed “inappropriately,” according to whoever decides such things? Can they be removed for screaming obscenities at the president during a speech?

They may be entitled to know of the president’s public pronouncements, but are they entitled to any particular forum to learn of them? Is it their burden to wait until they appear in the funny pages or go incognito, or Trump’s burden to mute them instead of block them? Must Trump suffer his mentions replete with twits saying words that would hurt his delicate feelings?

Trump’s Twitter use draws intense interest for his unvarnished commentary, including attacks on critics. His tweets often shape news.

Katherine Fallow, a lawyer for the plaintiffs, told Buchwald the record “shows unambiguously that the president operates his account in an official capacity.”

Baer acknowledged that Trump sometimes uses his Twitter account to announce policy, but said that blocking users was not an official action.

Obviously, muting instead of blocking would resolve the problem for all. But Baer raised one additional argument, that separation of powers precludes the court from ordering the president to do so.

Baer also argued that the court cannot order the president to unblock users, because of his position as head of another branch of government.

Marbury v. Madison may cover that question. As Cristian Farias noted at the top of his New York Magazine post, taxpayer money is funding Trump’s defense of his right to block.

For nearly two hours on Thursday, we the taxpayers funded the government’s defense, in a federal courtroom in Manhattan, of Donald Trump’s unbridled use of his Twitter account. On our dime, the Department of Justice dispatched three lawyers to tell a judge, more or less, that courts have no power to tell the president what to do with @realDonaldTrump — let alone to declare that the First Amendment imposes an obligation on him to unblock users who have been critical of him or his administration.

As trivial an issue as this may have been for the Knight Institute to take on, it’s far worse that government lawyers are dispatched to fight something so inane. Then again, petty minds create petty problems, and even petty people are entitled to have their petty rights protected.

Judge Buchwald will eventually hold that Trump’s use of twitter is an official presidential act, not because of twitter but because of the manner in which he uses it. And as such, he can’t block Americans from viewing his official public pronouncements in whatever medium they’re made provided it’s an open medium. So if he doesn’t want to see their mean twits, he can mute them, but he can’t block them from seeing his.

And if Trump doesn’t like it, he can just stop twitting, for which we would all be thankful.

16 thoughts on “Mute Court: Trump’s Precedential Twits

  1. Skink

    Smart judge: she told the suits they brought stupid stuff to her court and they’ll probably be better off if they fix it themselves. They won’t because media. DOJ and the state versions bring and defend piles of petty nonsense without taking a step back to see if the landscape really matches their vision. It’s the same with many do-good outfits–if a client asked us to do some of this stuff, we’d shoo them out with a broom.

    But they might be on to something with the SOP argument. If the twits are official, then the courts might not have jurisdiction to tell him how to manage his embarrassing mumblings.

    1. SHG Post author

      But if official and a 1st A deprivation, then an injunction against blocking would seem an appropriate remedy. But is it worth anyone’s time to fight over twits?

  2. Skink

    Nope–you’re skipping the first step. SOP is jurisdictional, so the questions of violation and remedy don’t merit consideration. Without jurisdiction, any remedial order is void.

    No, it isn’t worth the effort. So much of what we see isn’t. Don’t you often sit in court when really stupid stuff is argued and wonder “how those people get out of bed in the morning without killing themselves?”*

    *This is plainly rhetorical.

    1. SHG Post author

      Even you need to use the reply button, please? Good point about SOP being jurisdictional. Not sure how strong that argument is but that’s pretty far outside my wheelhouse so I’ll defer.

      1. Skink

        Goddamn Saturdays in the office! Sorry.

        I don’t know if it works, either. That would require me reading all the stuff, and I just don’t want to become stupidier on a weekend.

          1. Skink

            My dealers are legal, so “Hemingway’s Whiskey.” I have no idea how to embed the video.

            {Ed. Note: I do.]

  3. JRP

    I suspect the answer is no but if the judge rules as above could that open the door for Twitter be considered a public place?

    1. SHG Post author

      If she does, consider the ramifications for twitter, not to mention facebook. If they’re a public forum for Trump, are they not a public forum for everyone else?

      1. Jim Tyre

        That question need not be answered in this action, even if the ruling is in favor of the Plaintiffs. But there are a few other pending actions, including one recently filed by Marco, that raise the question more directly. (Marco’s Complaint relies on independent California constitutional grounds and related California statues, rather than the First Amendment. But since twitter is based in CA, a ruling in favor of those Plaintiffs would have national implications.)

      1. Gavin

        Well, common carrier is a legal term. “Public carrier” isn’t, so if I want to know more about it, I can’t imagine I need to speak to learned counsel. Best of luck getting retainers!

        1. SHG Post author

          Even though no one else was sufficiently confused as to raise a question, because it’s not really hard to grasp, you could still have been that one person who failed to understand and nicely asked for my time to explain. Instead, you were a dick, and got a dick reply. And now you’re a dick again, because you read SJ for free and feel that I owe you an explanation to your dickish challenge.

          I don’t.

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