Sorry, Trump, You Can't Keep Me From My Covfefe

You may be tired of reading the POTUS's late-night rage tweets. But know that you're legally entitled to do so—and the White House doesn't like that.
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Trump’s Twitter feed is absolute garbage—this we know for sure. From insulting Mika Brzezinski to accidentally calling his not-a-travel-ban a ban to vaguely defending his treasonous son, it’s actually pretty awful reading. So why would anyone sue for the right to read his feed? Well, because he is, regrettably, the President of the United States and we have a right to see what he is saying.

That’s the argument behind a lawsuit filed in the United States District Court for the Southern District of New York on July 11. Along with the Knight First Amendment Institute at Columbia, seven individuals who have been blocked by the leader of the free world have sued to make Trump unblock them. (Also sued are White House Press Secretary Sean Spicer, as the lawsuit alleges that he can block and unblock people on Trump’s account and White House Social Media Director Dan Scavino, who the plaintiffs say can post to Trump’s account and also block and unblock.)

Make no mistake—this isn’t a trivial matter. At stake is how we understand the First Amendment in the era of the first social-media president. Sure. Obama had a Twitter feed while he was president, but it was mostly announcements of official actions and small kindnesses, not a place to threaten North Korea or insist that literally any poll that doesn’t favor him is fake.

Trump says he takes to Twitter to get his unvarnished message directly to people instead of going through the “fake news media.” (Of course, he also says that message gets to 100 million people, but the guy only has 33 million followers, so it isn’t clear where he thinks the other 67 million people come from.) He also insists that his use of social media is MODERN DAY PRESIDENTIAL. (The all-caps is actually in Trump’s tweet). Sean Spicer said at a press conference that Trump’s tweets should be taken as official proclamations from the president.

But obviously if Trump blocks you, you can’t read those official pronouncements.

Well, at least not easily. Everyone that uses Twitter with any regularity knows that even if you are blocked, you can still see a Twitter user’s tweets by logging out of your own (blocked) Twitter account. However, the thing you can’t do if you are blocked is interact with the person that blocked you. You can’t reply to them, you can’t @ them so that they would see it, you can’t retweet them and, perhaps most problematic, you can’t participate in the comment threads that flow from the original tweet because the original tweet isn't visible to you. So, if the President of the United States blocks you on Twitter, you might be able to go to some lengths to see what he has to say, but you actually can’t participate in the discourse. This poses a big legal problem.

The lawsuit alleges that Trump’s Twitter feed should be considered a “designated public forum.” A designated public forum is a place—a location, like a building at a University, or a method of communication, like an email network or a Twitter account—that is generally open for everyone to use, and the government generally can’t exclude people from that forum. It especially can’t exclude people from that forum based on content. That’s called viewpoint discrimination, where the government favors some speech but prohibits others. What this means in practical terms is that Trump can’t hold out his Twitter feed as public, as an official record of his pronouncements, as his preferred way to communicate with the world, and then tell people they can’t read it or interact with it just because he doesn’t like what they say.

But that is exactly what he does. WIRED has been keeping a list of high-profile people Trump has blocked on Twitter. It ranges from people like relatively non-political novelist Stephen King, who appears to have pissed Trump off with a mild comment about Ivanka to the overtly political president of Media Matters, Angelo Carusone, who got blocked four months after he last tweeted at Trump, but who obviously is no fan of the president. What’s notable about the high-profile people WIRED mentions and the plaintiffs in this lawsuit is that they are all people who have spoken critically at or about Trump on Twitter and, presumably, that is why they were blocked.

And therein lies the problem. One thing the president, as the person at the apex of the American government, cannot do—even though he is basically a thin-skinned child—is refuse to allow people to talk about what he has to say, but that is functionally what blocking does since you can no longer participate in threads about what Trump has said. Imagine telling someone they're not allowed to read statements from Trump, of statements from Spicer about Trump or on Trump’s behalf. Or imagine that you are told you can no longer send mail to the White House because Trump doesn’t like it. That's what this is, except for the digital age.

Trump is by far not the only politician who does this. It's regrettably not uncommon. But he's definitely the biggest.

There’s an additional problem with Trump’s Twitter feed: He deletes things. Remember covfefe? That one got memory-holed, though not until the next day after the internet had gone delirious with silliness about it. He’s deleted things over smaller issues like misspellings as well. But here’s the thing: if these tweets are part of his MODERN DAY PRESIDENTIAL communications,, then they are official presidential records and have to be preserved. The National Archives, which is in charge of this, informed the Trump administration of it back in April, and Trump’s administration pinky-swore that they are indeed saving all the tweets, but this is not an administration known for being terribly truthful. And right now, the Presidential Records Act doesn’t include “social media” as one of the things it requires be archived. A Democratic member of the House of Representatives has introduced a bill that would add “social media” to the Act. However, if Republican members of Congress won’t even act when Trump and his inner circle essentially collude with the Russians, they’re probably not going to get around to a tough response about his Twitter feed. Here’s hoping the courts will do that for them by ruling in favor of the plaintiffs on this lawsuit.

 

Lisa Needham is an attorney who has worked in the areas of First Amendment, education, and labor law. She is the deputy editor of Lawyerist, where she writes about access to justice and diversity in the law, and a contributor to Rewire, where she writes about LGBTQ and reproductive-health legal issues. She is ride or die for Dionne Warwick, Doris Day, and the Oxford comma. Follow her: @snipy
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