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Tags: trump | twitter | first amendment | government speech | court

In Curious Ruling, Court Declares Trump's Tweets Are Government Speech

In Curious Ruling, Court Declares Trump's Tweets Are Government Speech
President Donald Trump speaks during a Keep America Great rally on July 17, 2019 in Greenville, North Carolina. (Zach Gibson/Getty Images)

By    |   Friday, 19 July 2019 10:27 AM

Earlier this month, the U.S. Court of Appeals for the Second Circuit affirmed a uniquely curious and novel decision rendered by a Federal District Court holding that Twitter qualifies as a public forum for purposes of the First Amendment when used by certain public officials.

In doing so, the Court catapulted Twitter into a bona fide medium for official, Government-sanctioned speech and forced Americans to reconsider the significance of statements that would have otherwise been written off as mere tweets.

It is no secret that President Trump is a prolific Twitter user, which he continues to successfully wield to animate both friend and foe. Twitter is such an immensely powerful platform because it allows for immediate and direct communication between the individual and his network of fellow Twitter users.

Indeed, arguably Trump’s greatest achievement, as a presidential candidate in 2016 was his nearly instinctual ability to circumvent the overtly hostile, mainstream media and connect with Americans directly with controversial and well-sniped tweets. Trump frustrated the media because he showed that he no longer needed them.

Make no mistake. Trump changed the rules forever.

As Trump made his transition from Presidential candidate to President of the United States, many people assumed that his need to tweet would be less and therefore the ubiquity of his tweets would in parallel slowly abate. Of course, we now know that his imperative to communicate directly with the American people hasn’t diminished (the mainstream media has if anything only been more biased and hostile to his administration) and consequently, Trump’s reliance on Twitter to communicate his narrative has only increased.

What is fundamentally groundbreaking about the Federal District Court case, affirmed by the Circuit Court, is that it asks, what is the nature of Trump’s tweets? How should we view Trump’s tweets? Is Trump speaking as Donald J. Trump or as the President of the United States of America?

In a more structured legal formulation, when Trump blocked several people from viewing and engaging with his tweets because of the substance of their tweets, was he suppressing their Freedom of Speech rights under the First Amendment?

In evaluating what reads to be a philosophical question in as much a legal one, the central thrust of the Court’s reasoning, supporting the proposition that Trump’s blockage of Twitter users was a First Amendment violation, amounts to the following:

1. Trump has created a “Public Forum” by engaging with Twitter

2. When Trump uses Twitter, he is acting in his capacity as President, promulgating “Government Speech”

3. Blocking individuals due to a disdain for their political views is Governmental-viewpoint discrimination (prohibited by First Amendment law)

4. Trump’s blocking of individuals based on their political views is therefore a First Amendment violation

There is no doubt that, mechanically, the reasoning and final ruling meets the analytical and logical rigor that one would expect from a Federal Circuit Court.

Twitter is a public forum; Trump is the President; Trump speaks for the Government; Suppressing speech Trump disagrees with is thus prohibited under First Amendment law.

And yet on a gut level, I personally find this analysis to be as emotionally unsatisfying as it is intellectually compelling; the problem with this ruling is that it does not seem to capture the anarchic feel of what users have come to expect when entering the beastly and savage jungle that is the Twitter platform. The chaotic and scattered nature of Twitter seems to be fundamentally incompatible with the regimented sort of “Government Speech” that is traditionally understood by the First Amendment.

Twitter’s tweet-character limit was designed to facilitate whimsical, quick thought injections with brevity being of paramount importance — not Government speech and edicts with significant policy implications. Similarly, if one spends enough time on twitter, one quickly recognizes that it is truly an unfiltered word-orgy, bound neither by grammatical or ethical constraints. How can one with a straight face read a tweet from a random teenager discussing the challenges of choosing the perfect weekend outfit and simultaneously expect to take seriously a tweet containing “Government Speech” on the very next line?

Simply, what has evaded the characteristically erudite reasoning of the Judges is that despite the formulaic success of their Trump’s Tweets are Gov. Speech analysis described above, there is something decidedly too unserious and uncivilized about tweets, and Twitter as a platform, for one to feel comfortable categorizing it as “Governmental Speech.”

Ultimately, Trump’s tweets might have all of the legal trappings of Government Speech but Twitter’s very constitution seems to negate the seriousness of that proposition.

Abe Cohn is an attorney at Cohn Legal Group, a specialty group of a larger law firm, designed specifically to provide a boutique experience for entrepreneurs. Abe’s area of expertise is intellectual property and startup law. On judicial interpretation, Abe is a firm believer that constitutional originalism is the only viable and indeed sustainable judicial philosophy by which the courts may approach the interpretation of legal texts. Abe’s views on matters of the law are fundamentally rooted in his orientation towards a civil-libertarian approach to the role of government vis-a-vis individual freedoms. To read more of his reports — Click Here Now.

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It is no secret that President Trump is a prolific Twitter user, which he continues to successfully wield to animate both friend and foe.
trump, twitter, first amendment, government speech, court
Friday, 19 July 2019 10:27 AM
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