There’s a global pandemic raging and the economy is a wreck, but the federal government has bigger problems today. They’ve got to save the world from mean tweets directed at the president’s delicate, orange ears!
The same president who demands free rein to tout quack cures to his hundreds of millions of followers wants the Supreme Court to give him the right to block his critics from seeing or interacting with his Tweets.
Back in July of 2017, Knight First Amendment Institute at Columbia sued on behalf of seven twitter users who’d been blocked by the president. The U.S. District Court in the Southern District of New York said he couldn’t do that. The Second Circuit agreed. And then a panel of the Second Circuit refused to rehear the case en banc, affirming that the president has converted his personal account into a public forum and “when the President creates such a public forum, he violates the First Amendment when he excludes persons from the dialogue because they express views with which he disagrees.”
So now the DOJ is running to Chief Justice Roberts with a 187-page cert petition in hand, begging him to preserve Donald Trump’s right to shit-tweet at will without fear of comment by American citizens. Because what better use of taxpayer dollars than putting the entire Solicitor General’s Office on the case, right?
And so we are treated to yet another exegeses on OKAY, GRANDPA, TWITTER IS LIKE …
Twitter enables users to interact with each other in a variety of ways. Users can “favorite” or “like” another user’s tweet by clicking on a heart icon that appears under the tweet. Users can also “mention” another user by including the other user’s handle in a tweet. A Twitter user mentioned by another user will receive a notification that he or she has been mentioned in the other user’s tweet. In addition, users can “follow” other users, which enables them to receive notifications every time that other user posts a tweet. . And they can “retweet[]”—i.e., repost— the tweets of other users onto their own timelines. [Citations omitted.]
Acting Solicitor General Jeffrey Wall argues that Trump’s shitposts are simply the rantings of a private citizen. And like a soapbox preacher, Trump’s nattering about DEEP STATE and HOAX and DEMOCRAT CITIES are not subject to the First Amendment’s prohibition on government regulation of speech. But this requires a certain suspension of disbelief.
Unlike the town drunk whose words have no effect, the president routinely uses his account to make and announce federal policy and personnel changes. For example, the ban on transgender Americans serving in the military was announced on Twitter. (In point of fact, he hadn’t consulted his generals. The nine minute pause between these tweets sent the Pentagon into a panic that he was about to declare war on North Korea.)
And Secretary of Homeland Security Kirstjen Nielsen learned that she’d been fired the same place the rest of us did — from the president’s Twitter account.
Nevertheless, the SG argues that Twitter is not government speech, or in the alternative, if it is government speech, then it’s simply a one-way megaphone where the president has no obligation to allow anyone to talk back.
“[T]he President uses his account to speak to the public, not to give members of the public a forum to speak to him and among themselves,” he insists, likening the platform’s blocking feature to “a Congressman who forbids the placement of certain yard-signs on his front lawn.”
Neither the trial judge nor the Second Circuit bought this argument, but who knows what will happen at SCOTUS. Maybe they’ll kick the can down the road until the issue gets mooted in January if and when Joe Biden is sworn in. (We hear Justice Kavanaugh likes cans.) Maybe they’ll order briefs on Twitter’s exciting new feature limiting who can reply to a Tweet.
Or maybe they’ll break with precedent and refuse to grant the SG’s cert petition because … for the love of God, WHO EVEN CARES?
Donald J. Trump v. Knight First Amendment Institute at Columbia University [Petition for Certiorari]
Elizabeth Dye lives in Baltimore where she writes about law and politics.