the law

The Newest Frontier in American Jurisprudence Is Trump’s Twitter Feed

Does every American have a right to read Trump’s tweets?

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. Taken at face value, the argument of the United States, our government, is that Twitter is a sacred space for Trump and thus out of the Constitution’s reach.

Like many judges in the Southern District of New York, the federal court with jurisdiction over private-citizen Trump and his businesses, Senior U.S. District Judge Naomi Reice Buchwald has seen her share of complex, years-long litigation. But Knight Institute v. Trump, as the Twitter-blocking case is known, isn’t a particularly difficult, fact-intensive case. In only nine months’ time and without the need for a trial, Buchwald has everything she needs to rule on one of the vexing questions of our time: whether Trump, in his official capacity, infringed on the free-speech rights of seven users who tweeted mean things at him, only to later find themselves blocked by the president.

Blocking someone on Twitter is one of the medium’s joys — one of the few redeeming qualities of a social network otherwise plagued by trolls and toxicity. But elected officials blocking constituents seems different, even if there’s nothing forcing them to read their critics’ jabs or even engage in civic dialog with them. What’s private catharsis for the rest of us can be rightly seen as government retaliation when it’s a public official who goes on a blocking spree.

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. 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 a declaration of what the law is is precisely what the plaintiffs want. And they’d like to be unblocked, too. More symbolically, a court pronouncement on the constitutional dimensions of Trump’s Twitter usage may be what the country needs at a time when no one, not even White House chief of staff John Kelly, can get the nation’s chief executive to cut back on his executive time and all the tweeting that comes with it. “The president is different,” insisted Michael Baer, the Justice Department lawyer charged with making the case that there are serious “structural” and “separation of powers” issues with a court ordering Trump to unblock certain users. Was the initial blocking even official action? Or was it just something he did in his personal time? And is his account a public forum akin to the public square where the First Amendment applies with great force? These are all matters Buchwald, who was sharp as a tack throughout the hearing, wrestled with, even as she let everyone in the courtroom know that public officials, or at least judges, had no business tweeting.

Before he swore the oath of office, Donald Trump’s outbursts on social media were, for the most part, his private business. 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.

So we care. And the government cares. So much that the Trump administration has declared — in White House briefings, government letters, and court hearings — that communications that emanate from @realDonaldTrump are, in fact, official statements by the presidency. If that’s the case, there’s necessarily a constitutional valence to the things Trump posts on Twitter, no matter how nonsensical, vindictive, or lacking in redeeming value they may be. And with that, there’s a certain constitutional harm that comes from barring someone from what is the equivalent of petitioning or interacting with a government leader.

Rebecca Buckwalter-Poza, a judicial affairs editor at Daily Kos and one of the “blockees” who sued Trump, told New York before the hearing that she felt “shock” when she learned she had been blocked. In the course of the litigation, she learned that it was Trump himself — not Dan Scavino, the White House director of social media — who smashed the “block” button after she trolled him over his bragging about winning the White House. Her tweet last June wasn’t exactly offensive, but then again, it may have triggered him for one very obvious reason:

Like Buckwalter-Poza, none of the plaintiffs I met in court, some of whom made this list, struck me as a shrinking violet. Each has a dedicated following on Twitter, is a “verified” user, and got the block after tweeting something snarky at him.

Philip Cohen, a University of Maryland professor who tweets under the handle @familyunequal, told me he was both “shocked” and “proud” of being blocked for tweeting a meme at Trump that called him a number of things — none vulgar, all of them words that might show up on a sign at a Women’s March or an anti-Trump rally:

In a sense, these Twitter denizens are similar to the dedicated constituent who takes the time to show up to city council meetings and, to the chagrin of city council members, speaks his mind all the time. “Once it is a public forum, you can’t shut somebody up because you don’t like what they’re saying,” Judge Buchwald said, somewhat echoing something Justice Anthony Kennedy wrote recently, in an unrelated case, about what social media — which he called “the modern public square” — means today: “These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard. They allow a person with an internet connection to become a town crier with a voice that resonates farther than it could from any soapbox.”

Short of ordering Trump to stop blocking people, the judge, in a spirit of compromise, seemed keen on letting him at least mute users he finds obnoxious. “Isn’t that the solution?” she pondered at one point. Muting someone isn’t as drastic as barring them forever from your Twitter timeline: the muted user can still see your tweets and interact with them and other users in the cyberspace of ideas. But even that would require Buchwald to find a First Amendment problem with the blocking itself. And to get the president, or Scavino, to unblock the plaintiffs and then mute them. “And he’s above the law? I just want to check,” an incredulous Buchwald retorted when Baer, the Justice Department lawyer, suggested as much. From the jury box, where I was sitting, you could see a sheepish grin on Baer’s face as he said no.

Nick Jack Pappas, a comedy writer in New York who is also a part of the lawsuit, doesn’t care so much about Trump seeing his tweets, but he does care about others seeing his during that frenzy of responses that follow each of the president’s tirades. “This is not about me but about the right of the people to see dissenting views,” he told me outside the courthouse after the hearing. As for the potential remedy of getting muted by Trump instead of blocked by him, which would at least give him some of his dissenting privileges back, he said he can live with that. “I would be totally fine with that,” he said.

The Newest Frontier in Jurisprudence Is Trump’s Twitter Feed