Trump's Twitter Account Is Creating A Constitutional Crisis, Because Of Course It Is
If you use Twitter for government business, you can't block your constituents. Says who? Well, the First Amendment and the US Court of Appeals for the Second Circuit.
On Tuesday, a unanimous panel of the Second Circuit ruled that Donald Trump can't block people on Twitter just because he doesn't like what they're saying. Yes, this is a real lawsuit that the free speech watchdogs at the Knight Institute had to bring. Because the president is a fragile, petty little man.
The decision from the Second Circuit affirms a Southern District of New York ruling that Trump violates the First Amendment when he blocks constituents because he disagrees with what they're saying.
First Amendment cases about social media can seem outlandish at first glance. After all, although most Americans don't actually understand the First Amendment, it's a limit on the government, not private corporations. When people scream "FIRST AMENDMENT" because, for example, a TV personality gets fired for being a bigot or a white supremacist website gets fired by other tech companies for promoting violence, they're just showing to the world that they have no idea what the First Amendment actually does. But Twitter isn't the one blocking people; Trump is. And the cases finding that public officials violate the First Amendment when they block people on social media actually rely upon and follow decades of established free speech jurisprudence.
A string of First Amendment cases going back to the 1930s say that, when the government creates a public forum for speech, it can't censor which people get to talk or what they can say based on their point of view. This applies to everything from city public hearings to websites. The First Amendment says that the government can't abridge free speech; that applies equally to physical and virtual spaces. It is irrelevant whether the government owns the space or is just operating it for a period of time. If a town rents out a private hall to hold city council meetings, it isn't allowed to stifle speech simply because it doesn't own the building. And if the president uses Twitter for official government policy, he can't stifle free speech simply because he doesn't own Twitter.
If Trump's Twitter account were a private one that he used to talk to friends, the First Amendment wouldn't apply. But Trump makes it a point to use Twitter for government business. Trump has used Twitter to do things like fire Reince Priebus, announce his official policy to discriminate against transgender troops, and, most recently, fuck with the 2020 Census. The National Archives preserves his tweets as official records. Because Trump's racist, sexist, and otherwise hateful rants are him acting in his official capacity as president, that makes his Twitter account a public forum. As the Second Circuit noted, Trump's twitter account "is one of the White House's main vehicles for conducting official business." Because we live in a horrifying hellscape.
Because everything is awful and Donald fucking Trump's Twitter account is a government space, he can't block people because he doesn't like what they're saying. It's a basic tenet of First Amendment law that the government doesn't get to be petty and silence critics. As the court stated, "once the President has chosen a platform and opened up its interactive space to millions of users and participants, he may not selectively exclude those whose views he disagrees with."
"Public officials' social media accounts are now among the most significant forums for discussion of government policy," said Jameel Jaffer, the Knight Institute's Executive Director, who argued the case before the Second Circuit in March. "This decision will ensure that people aren't excluded from these forums simply because of their viewpoints, and that public officials aren't insulated from their constituents' criticism. The decision will help ensure the integrity and vitality of digital spaces that are increasingly important to our democracy."
The Second Circuit and SDNY aren't alone in finding that public officials violate the First Amendment when they block people they disagree with. Earlier this year, the Fourth Circuit held that a chairwoman of a county board of supervisors had created a public forum on a Facebook page she set up, and therefore couldn't block members of the public from the page.
During this litigation, Trump's lawyers argued that his Twitter account is his personal business and not actually the government. And who made these arguments to the court on Trump's behalf? Not Michael Cohen, Ty Cobb, or whichever future federal prisoner is representing him this week. Oh no. It was the Department of Justice.
Of course, because this regime can just never resist the opportunity to create a constitutional crisis, what happens next is still unclear. And the DOJ isn't done helping Trump with his ridiculous Twitter fuckery. Yesterday, DOJ spokesperson Kelly Laco ignored the fact that the president and Department of Justice are required to follow the law and told BuzzFeed that they were "exploring possible next steps," stating, "As we argued, President Trump's decision to block users from his personal twitter account does not violate the First Amendment."
Well, Kelly, the Second Circuit just told you that NOPE, soooooo ...
Just to be clear, the DOJ and President aren't allowed to just ignore federal court decisions, no matter how much they want to. More than two years into Trump's presidency, he still hasn't learned the basics of our constitutional system.
They’re not advisory opinions. https://t.co/scTmoP5Fih— Courtney!!! Milan 🦖 (@Courtney!!! Milan 🦖)1562692603.0
With the nonstop absurdity that is daily life under the Trump regime, it somehow seems appropriate that we would end up in a constitutional crisis because of the unhinged president's Twitter account.
DJT refusing to unblock people on Twitter in defiance of a court decision is the constitutional crisis we deserve.— Daniel Bennett (@Daniel Bennett)1562684024.0
Trump and the Justice Department should probably check out the last sentence of the Second Circuit's opinion:
In resolving this appeal, we remind the litigants and the public that if the First Amendment means anything, it means that the best response to disfavored speech on matters of public concern is more speech, not less.
As for me, I don't understand why these thin-skinned assholes don't just use the "mute" button. It's more fun than blocking, because you also get to picture the people who hate you screaming into the void.
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