The Knight Institute leading the legal challenge to Trump’s use of Twitter has revealed that the White House will not be contesting that Trump does block his critics from time to time.
So if the White House accepts that, doesn’t it mean they automatically lose the case? No, not necessarily. The White House believes that as @realDonaldTrump is a personal account, and not the official @POTUS presidential channel, the First Amendment rights don’t apply. In other words, when Trump tweets from his own personal account, he does so with the same rights as a private citizen.
The Knight Institute, however, doesn’t buy this. Why? Because the president frequently makes policy announcements and reveals government news through his personal account. Precedent for this has already been set in America with Phyllis Randall, chairwoman of the Loudoun County Board of Supervisors, who was told that banning someone from commenting through a non-government funded Facebook page amounted to a breach of the First Amendment.
“The White House’s concessions here amount to an acknowledgment that the president and his aides have engaged in viewpoint discrimination in violation of the First Amendment,” said Jameel Jaffer, executive director of the Knight Institute. “We look forward to making this case to the court.”
Why might the president blocking people on Twitter be constitutionally iffy? The original piece, originally published back in July, explains below.
Donald Trump is no stranger to the lawsuit, having dealt with more than 4,000 of them in the past 30 years. Nonetheless, the latest one is designed to hit him where it hurts: not in the wallet, but in the Twitter account.
The issue is with Trump’s penchant for blocking people who attack him in 140-character barbs. Seven of them have teamed up with the Knight First Amendment Institute to sue Trump on the grounds that blocking them is an attempt to “suppress dissent” in a public forum. This, they claim, violates their First Amendment rights to free speech.
In other words, they want the right to troll the president without consequences. This sounds pretty flimsy on the surface, but is justified by the fact that the Trump administration has described the president’s personal tweets as “official statements,” and that his team “use the account to make formal announcements, defend the president’s official actions, report on meetings with foreign leaders, and promote the administration’s positions”.
Trump himself has described his Twitter usage as “modern day presidential”, which is probably true, given it’s hard to imagine Thomas Jefferson publishing a GIF of himself repeatedly punching a man with CNN’s logo crudely plastered over his face. But then he did once write “were it left to me to decide whether we should have a government without newspapers or newspapers without a government, I should not hesitate a moment to prefer the latter”.
My use of social media is not Presidential – it’s MODERN DAY PRESIDENTIAL. Make America Great Again!
— Donald J. Trump (@realDonaldTrump) July 1, 2017
“The First Amendment applies to this digital forum in the same way it applies to town halls and open school board meetings,” said Jameel Jaffer, the Knight First Amendment Institute’s executive director, in a statement. “The White House acts unlawfully when it excludes people from this forum simply because they’ve disagreed with the president.”
That’s another intriguing aspect of the case: how Twitter deals with blocking. If you’re blocked by the president, you can no longer see his tweets when you’re logged in. Granted, logging out will allow you access again (unless he decides to make his account private, which seems hugely unlikely) but crucially you can’t reply if you’re not logged in. This means that if Trump blocks enough critics, then theoretically he can ensure that only positive responses to his tweets are seen by anyone, in effect silencing public debate.
“I’m troubled that the president can create a space on Twitter – where there are millions of people – that he can manipulate to give the impression that more agree with him than actually do,” said Professor Philip Cohen, one of the citizens suing Trump. Although, in fairness, this does ignore internet trolls’ almost limitless capacity to open new accounts to engage their favorite pastime.
So what kind of tweets get the president riled enough to reach for the block button? Here’s a selection of the plaintiffs’ replies to Trump that seem to have provoked the president to retreat to his safe space.
What chances of success? Can the courts force Trump to acknowledge criticism? Legal opinion is split on this one, with skeptics arguing that Trump’s Twitter account is personal, the plaintiffs’ injuries are minor and that he has the same right to block people as anybody else on Twitter, a private company. It would be something of an irony if Trump’s lawyers were to hide behind Twitter’s terms and conditions, given he seems to violate them with no chance or repercussions, but there we are.
A lot of this seems to come down to intent – the issue isn’t with Trump ignoring the abuse, but preventing others from seeing active dissent. The irony, therefore, is that if the president had just reached for the mute button rather than blocking, there would be far less of an issue – and nobody would know that he’d done it. Just another way in which the world where politics and social media meet is unnervingly murky.