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REFILE-COLUMN-DOJ: Trump tweets are not presidential actions. Except when they are. - Frankel
October 16, 2017 / 8:51 PM / a month ago

REFILE-COLUMN-DOJ: Trump tweets are not presidential actions. Except when they are. - Frankel

(Corrects foundation to institute in paragraghs 18 and 19.)

By Alison Frankel

NEW YORK, Oct 16 (Reuters) - President Donald Trump has more than 40 million followers at @realdonaldtrump, the Twitter account he started in 2009 and has used to such consequential effect during and after the presidential campaign.

President Trump sometimes announces policies, such as his proposed ban on transgender troops in the U.S. military, on Twitter. He regularly uses the @realdonaldtrump account to advance his agenda. The president goes to Twitter to push legislation, boost loyal supporters and attack those he perceives as disloyal, from Republican Senators John McCain, Mitch McConnell and Bob Corker to pro football players who kneel during the national anthem and the news media.

Attempting to understand the Trump administration without reading the @realdonaldtrump Twitter account is like trying to read a map without street names. You can still figure out where you are, but it’s a lot harder.

Last June seven Twitter users and Columbia University’s Knight First Amendment Institute sued President Trump and several White House officials in federal court in Manhattan, arguing that the president and his aides violated their First Amendment rights by blocking access to the @realdonaldtrump Twitter account.

Their argument, in a nutshell, is that Trump’s Twitter account – which has 20 million more followers than the official @potus account launched by the Obama administration – is a public forum from which the president cannot exclude his critics.

The Justice Department, which is representing the president and his aides in the case, filed its motion for summary judgment on Friday.

PRIVATE SPEECH

The brief’s primary argument is that @realdonaldtrump is not a public forum. It’s a private platform governed by the rules of a private company, the Justice Department said. The president opened his account before he was an elected official, the brief said, and his continued operation of the account is not a right conferred by his election to the presidency.

“The president does not operate his personal Twitter account by virtue of federal law, nor is blocking made possible because the President is clothed in Article II powers,” the brief said.

So according to the Justice Department, President Trump’s posts to @realdonaldtrump are simply not “state actions” subject to the First Amendment. They are private speech, Justice insisted, like a toast at a wedding or a speech at a fundraiser, even if Trump’s purportedly private speech is about presidential policies.

“To be sure, the President’s account identifies his office, and his tweets make official statements,” the DOJ brief said. “But the fact that the president may announce the ‘actions of the state’ through his Twitter account does not mean that all actions related to that account are attributable to the state.”

President Trump, in other words, is not flexing his presidential power when he tweets as @realdonaldtrump, according to the Justice Department. But at the same time, Justice argued in the summary judgment brief, the president can’t be sued for posting to his private account because he’s acting as the president.

DOJ said the Knight Institute and the president’s critics do not have standing to bring their case because they can’t win the injunction they’ve asked for. Under U.S. Supreme Court separation-of-powers precedent, most recently in 1992’s Franklin v. Massachusetts (505 U.S. 788), courts cannot interfere with the president’s authority to make judgment calls.

EXECUTIVE FUNCTION

President Trump’s decisions about his Twitter interactions, including whom he blocks, are “squarely … discretionary choices,” the brief said. The president cannot be barred, DOJ said, from “exercising the executive function” of blocking Twitter users.

Got it? The Justice Department is arguing that President Trump isn’t acting as the president when he posts to @realdonaldtrump, but he’s shielded from litigation over the account because he’s the president.

To be fair, lawyers make this sort of “even if” argument all the time, and I’ve simplified the Justice Department’s many explanations for why the president and his aides deserve summary judgment. But DOJ’s essential point – that under one theory or another, the president isn’t responsible for the world’s most consequential Twitter stream – is pretty audacious.

In a statement, the Knight Institute said the government cannot defend its argument that @realdonaldtrump is a personal account, “given that the president routinely uses it for official purposes and both the president and his aides have publicly described the account as official.” (I should point out that in a ruling in July, U.S. District Judge James Cacheris of Alexandria, Virginia held that a Loudon County official’s supposedly private Facebook account was a public forum subject to the First Amendment, in part because the official frequently posted about county business.)

The institute also said DOJ is misreading Supreme Court precedent on the president’s immunity. The president’s blocked Twitter followers are due to file their response to his summary judgment motion on Nov. 3. (Reporting by Alison Frankel. Editing by Alessandra Rafferty.)

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