Donald Trump should be allowed to block people from his Twitter feed because it is not an official government account, the president’s lawyers have re-argued in a legal appeal.
The lawyers are asking that a decision by a subset of the Second Circuit be reviewed by the entire court. Their core argument remains that the @realDonaldTrump account should not subject to the First Amendment – where he is not allowed to block access as it is a “public forum” – because it is a personal account and he is entitled to do with as he pleases.
This is the third time that Trump’s legal team has made the claim. It has been rejected twice by a district court and appeals court, each of which found that @realDonaldTrump is effectively a government account because of Trump's position as president and the fact that the account is run by official White House personnel.
There is some logic to Trump’s argument: he opened the account before he even ran as president, it is under his own name, and even if he does block someone they can still view his tweets.
But, as with many other aspects of his president, Donald Trump has refused to accept any distinction between his position as a private citizen and that of the president. As such, the @realDonaldTrump account has become synonymous with the office of president, despite the existence of the @POTUS and @WhiteHouse Twitter accounts. Trump often uses it to discuss the official business of government.
There is some additional legal argument in the filing [PDF]. It cites one case where a district attorney’s phone call to a newspaper complaining about an article about him was not seen as official state action. And another where the court decided that a government employee’s actions could not always be assumed to be on behalf of government – “the particular actions complained of must be fairly attributable to the respective government.”
But those broad arguments have already been made – and dismissed – repeatedly. The appeals court, in making its decision, noted that Trump often uses the account to announce major policy decisions and the tweets themselves have become the centerpiece of significant public discussion.
Constraints, we've heard of them
It is possible that a president (or any public official) can run a personal social media account in a way that does not stray into official government business. But one of the most notable aspects of Donald Trump’s presidency has been his willingness to talk incessantly – and with seemingly no restraint – about his job and official duties on his “personal” account.
Trump’s legal argument boils down to this: “In contrast to the official @WhiteHouse and @POTUS accounts, which belong to the federal government, @realDonaldTrump belongs to and is controlled by Donald Trump in his personal capacity.”
Despite calling the Second Circuit’s previous decision “fundamentally misconceived,” the appeal often contradicts itself and at points appears willfully ignorant of the arguments ranged against it.
It is common for individuals that are voted into public office to consciously adjust their behavior in response – and then change it again when they are no longer in that position. Trump’s legal team refuses to accept that common reality.
“He began use of the account in 2009, long before he became President,” the filing notes, “and he will continue to have control over the account after he leaves public office. His ability to exclude others from this personal property is likewise independent of his office. That authority was conferred on him by Twitter, not by the government.”
The filing then makes a somewhat baffling legal argument about personal property. “For example, if a President makes an official speech on real property that he owns, he obviously does not thereby lose his right as a private property owner to exclude those with whom he disagrees,” the appeal request argues before creating some theoretical examples using past presidents.
Here's a fun scenario
“Thus, President George W. Bush could have imposed viewpoint-based limitations on access to a political rally on his Crawford ranch, and President Franklin Delano Roosevelt could have done likewise for a town hall debate at his Hyde Park estate. The panel provided no explanation whatsoever why the state-action analysis should be any different when the President excludes disfavored members of the public from his personal social media account rather than his real property, even though the government repeatedly stressed that point in its briefing.”
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It’s hard to see appeals court judges giving that argument much weight. Likewise, the claim that applying First Amendment protections means that Trump is “penalized for engaging in open dialogue” and “stripped” of “preexisting rights to exclude” is hard to square with the enormous protections and privileges that the president is granted.
There are some important legal questions that need to be answered with respect to the use of social media accounts by public officials. In the past few years, the courts have consistently found that such accounts are in fact state accounts and so subject to First Amendment protections, in large part because to find the opposite – where public officials can carry out official business in the shadows – would clearly set a dangerous precedent.
But, it is notable that there is no clear Supreme Court decision on this question and it is likely that at some point there will need to be legal distinctions between what represents personal and official correspondence online.
This Trump case is not going to provide that clarity however. The president’s legal argument is inconsistent, illogical, clearly flawed and basically amounts to shouting “but I don’t want to be told what to do.” ®