President Trump’s presidential candidacy and now presidency has famously, or perhaps infamously, been defined by his use of Twitter to communicate with the American public. As detailed by Katherine Shaw,[i] there is little analysis or consensus on how courts do and should characterize presidential speech directly related to litigation. President Trump’s use of Twitter as a platform to set policy and to interact with the public is forcing courts to consider in what capacity President Trump is tweeting, official or personal, and to what extent those tweets reflect the purpose and reasoning behind executive action. While the platform will undoubtedly change in the future, the technological aspect of politician-constituent communications will not – meaning the law currently being built by President Trump’s Twitter usage will shape how courts will consider presidential speech via technology in the future.
The threshold question dictating how courts view President Trump’s use of Twitter is whether the president is speaking in his official or personal capacity when he tweets from @realDonaldTrump. This question will have significant implications for political dissenters’ First Amendment rights in the “modern public square.”[ii] For example, the Knight First Amendment Institute has filed a lawsuit on behalf of several individuals the president blocked from his @realDonaldTrump account, alleging those actions are an infringement on the plaintiffs’ First Amendment rights to petition the government. The case is pending in the Southern District of New York, and plaintiffs argue that @realDonaldTrump, rather than the more official handles of @POTUS and @WhiteHouse, is the primary communication tool President Trump uses in his capacity as president to respond to petitions of the people. Plaintiffs argue that as such, President Trump does not have the right to block dissenters from his Twitter feed because it is a public forum.[iii] Amici similarly argue President Trump’s Twitter feed has been designated as a public forum, meaning President Trump cannot block dissenters from his account because it would constitute illegal viewpoint discrimination. Furthermore, they claim that the public interacting with @realDonaldTrump on Twitter know they are directly addressing the government and President Trump’s policies, making @realDonaldTrump an official government feed.[iv]
First Amendment scholar Eugene Volokh has hypothesized that the court will find that because President Trump used @RealDonaldTrump in his personal capacity for years, his actions through that Twitter handle are “the work of Trump-the-man” only, not President Trump.[v] This theory, however, may be inconsistent with the District of Maryland’s and the Ninth Circuit’s opinions granting injunctions against variations of President Trump’s executive order blocking travel from a number of Middle Eastern countries. In noting the lack of support for the national security interests protected by the executive order, the Ninth Circuit took judicial notice of a tweet from the @realDonaldTrump Twitter handle reflecting an impermissibly broad and unsupported motivation for the order. The court relied on a statement from the White House Press Secretary indicating that President Trump’s tweets regarding the travel ban should be considered official statements.[vi] Similarly, in determining whether to consider tweets reflecting animus towards Muslims as part of the government motive for the travel ban, a District of Maryland court found tweets from @realDonaldTrump reflected President Trump’s official position because the White House Press Secretary had stated the tweets regarding the travel ban should “considered official statements by the president of the United States.”[vii]
It is unclear, however, whether courts will consider President Trump’s tweets from @realDonaldTrump official presidential statements without affirmation from a source such as the White House Press Secretary that the tweets should be viewed as such. In enjoining the second version of President Trump’s executive order implementing the travel ban, both the District of Maryland and the Fourth Circuit mentioned a tweet from @realDonaldTrump referencing a statement reflecting religious motivation behind the executive orders, though neither court ultimately relied on the tweet to show anti-Muslim animus.[viii] Thus, while the travel ban cases have relied heavily on indications of discriminatory motives gleaned from presidential statements made in interviews and speeches, it is unclear to what extent tweets from the @realDonaldTrump will be considered official policy statements.
President Trump’s use of Twitter in policy-setting and communicating with constituents has been implicated in several lawsuits against the president in the year he has been in office. The president’s use of the platform in ways completely inaccessible to former presidents will force courts to grapple with whether President Trump is acting in his official or personal capacity when he tweets from @realDonaldTrump. The president’s extensive and almost exclusive use of Twitter to communicate with the public makes it unlikely that courts will be able to avoid answering that question. With these examples, this presidency will likely help clarify the unprincipled doctrine of how courts can be expected to invoke presidential speech in litigation.
[i] Katherine Shaw, Beyond the Bully Pulpit: Presidential Speech in the Courts, 96 Tex. L. Rev. 71, 74 (2017).
[ii] Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017) (holding citizens have First Amendment rights to access social media websites).
[iii] Complaint at 2, Knight First Amendment Inst. v. Trump, No. 1:17-cv-5205 (S.D N.Y., July 11, 2017).
[iv] Brief of Amici Curiae First Amendment Legal Scholars in Support of Plaintiffs’ Motion for Summary Judgment at 10-11, Knight First Amendment Inst. v. Trump, No. 1:17-cv-5205 (S.D.N.Y., Nov. 6, 2017).
[v] Eugene Volokh, Is @RealDonaldTrump violating the First Amendment by blocking some Twitter Users, The Washington Post: The Volokh Conspiracy (June 6, 2017), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/06/06/is-realdonaldtrump-violating-the-first-amendment-by-blocking-some-twitter-users/?utm_term=.60bc6b826adb.
[vi] Hawaii v. Trump, 859 F.3d 741, 773 n.14 (9th Cir.), cert. granted sub nom. Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, (2017), and cert. granted, judgment vacated, No. 16-1540, 2017 WL 4782860 (U.S. Oct. 24, 2017), and vacated, 874 F.3d 1112 (9th Cir. 2017).
[vii] Int’l Refugee Assistance Project v. Trump, No. CV TDC-17-0361, 2017 WL 4674314, at *7 (D. Md. Oct. 17, 2017).
[viii] This is likely because there was sufficient evidence in other presidential communications more traditionally relied upon to show presidential motive, such as interviews and speeches, to establish an impermissible government motive. See Int’l Refugee Assistance Project v. Trump, 241 F. Supp. 3d 539, 558–59 (D. Md.), aff’d in part, vacated in part, 857 F.3d 554 (4th Cir. 2017), as amended (May 31, 2017), as amended (June 15, 2017), cert. granted, 137 S. Ct. 2080, (2017), and vacated and remanded sub nom. Trump v. Int’l Refugee Assistance, 138 S. Ct. 353 (2017); Int’l Refugee Assistance Project v. Trump, 241 F. Supp. 3d 539, 547 (D. Md.), aff’d in part, vacated in part, 857 F.3d 554 (4th Cir. 2017), as amended (May 31, 2017), as amended (June 15, 2017), cert. granted, 137 S. Ct. 2080, (2017), and vacated and remanded sub nom. Trump v. Int’l Refugee Assistance, 138 S. Ct. 353 (2017).