1 00:00:00,480 --> 00:00:05,720 Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio. 2 00:00:06,440 --> 00:00:10,080 Speaker 1: President Trump seems to have a love hate relationship with Twitter. 3 00:00:10,520 --> 00:00:13,560 Speaker 1: He loves tweeting directly to his more than eighty five 4 00:00:13,600 --> 00:00:17,800 Speaker 1: million followers, but he hates when Twitter fact checks his tweets. 5 00:00:18,640 --> 00:00:21,599 Speaker 1: If we had a fair press in this country, I 6 00:00:21,640 --> 00:00:24,400 Speaker 1: would do that in a heartbeat. There's nothing I'd rather 7 00:00:24,520 --> 00:00:27,440 Speaker 1: do than get rid of my whole Twitter account. And 8 00:00:27,480 --> 00:00:30,240 Speaker 1: Trump is now taking one of his Twitter fights up 9 00:00:30,280 --> 00:00:34,280 Speaker 1: to the Supreme Court. In seventeen, Trump was sued for 10 00:00:34,320 --> 00:00:38,280 Speaker 1: blocking seven followers of his at real Donald Trump personal 11 00:00:38,280 --> 00:00:42,000 Speaker 1: account who were critical of his administration. The Second Circuit 12 00:00:42,040 --> 00:00:44,680 Speaker 1: Court of Appeals ruled that was a violation of the 13 00:00:44,720 --> 00:00:49,239 Speaker 1: First Amendments ban on viewpoint discrimination. The Justice Department is 14 00:00:49,280 --> 00:00:52,959 Speaker 1: now asking the Supreme Court to overturn the Second Circuits 15 00:00:53,040 --> 00:00:57,080 Speaker 1: ruling prohibiting Trump from blocking Twitter users. My guest is 16 00:00:57,160 --> 00:01:00,280 Speaker 1: First Amendment expert Eugene Valla, a professor at u c 17 00:01:00,480 --> 00:01:03,280 Speaker 1: l A Law School. Eugene explain the grounds for the 18 00:01:03,320 --> 00:01:08,280 Speaker 1: Second Circuit's decision. Sure, so, government officials, especially executive officials, 19 00:01:08,280 --> 00:01:12,720 Speaker 1: where to hats. There's President Trump lost citizens, including President Trumps, 20 00:01:12,720 --> 00:01:16,400 Speaker 1: the presidential candidate, and when he speaks in that context, 21 00:01:16,440 --> 00:01:20,800 Speaker 1: he speaks as a citizen. And when he runs discussion 22 00:01:20,840 --> 00:01:23,480 Speaker 1: groups in a sense wearing that hat, he's doing it 23 00:01:23,520 --> 00:01:25,480 Speaker 1: as a private citizen. And he in fact, as the 24 00:01:25,520 --> 00:01:27,880 Speaker 1: First Amendment right to choose what to allow and what 25 00:01:27,959 --> 00:01:31,039 Speaker 1: not to allow in his discussion. But the second circuit said, 26 00:01:31,319 --> 00:01:35,000 Speaker 1: an executive official, when he is speaking as an official, 27 00:01:35,640 --> 00:01:38,880 Speaker 1: is subject to the First Amendment constraints, and in particular 28 00:01:39,400 --> 00:01:43,240 Speaker 1: can't once he sets up a limited public forum like 29 00:01:43,280 --> 00:01:47,920 Speaker 1: a Twitter discussion threat, can't engage in viewpoint based restrictions 30 00:01:47,960 --> 00:01:51,160 Speaker 1: on what people say in that for so, presumably, if 31 00:01:51,200 --> 00:01:55,800 Speaker 1: President Trump has a specifically a campaign account for which 32 00:01:55,920 --> 00:01:58,480 Speaker 1: all the staff are hired by the campaign, they're not 33 00:01:58,560 --> 00:02:02,360 Speaker 1: government employees, and he tweets touched his own messages, then 34 00:02:02,480 --> 00:02:05,720 Speaker 1: he would be free to restrict what comments are posted 35 00:02:05,720 --> 00:02:09,040 Speaker 1: there in the band particular Twitter users from that account, 36 00:02:09,040 --> 00:02:10,919 Speaker 1: if he doesn't like what they're saying. But the second 37 00:02:10,919 --> 00:02:14,280 Speaker 1: circuits in this case, even though this account, the real 38 00:02:14,320 --> 00:02:17,960 Speaker 1: Donald Trump account, predated his presidency and infact was used 39 00:02:18,040 --> 00:02:21,320 Speaker 1: during the campaign, the court that now it's actually a 40 00:02:21,560 --> 00:02:25,079 Speaker 1: forum for government speech, and he's acting as a government 41 00:02:25,120 --> 00:02:28,799 Speaker 1: official in restricting who can comment on it, and that 42 00:02:28,880 --> 00:02:31,720 Speaker 1: means any restrictions have to be viewpoint neutral That's the 43 00:02:31,760 --> 00:02:35,120 Speaker 1: Second Circuit help. The Justice Department is asking the Supreme 44 00:02:35,160 --> 00:02:38,280 Speaker 1: Court to review the Second Circus decision, and one of 45 00:02:38,320 --> 00:02:42,640 Speaker 1: their arguments is that the Twitter account is President Trump's 46 00:02:42,680 --> 00:02:46,800 Speaker 1: personal property, comparing it to elected officials who refused to 47 00:02:46,840 --> 00:02:50,640 Speaker 1: allow their opponent's yard signs on their front lawn. Is 48 00:02:50,680 --> 00:02:54,160 Speaker 1: that a good comparison? Well so, I think that's the 49 00:02:54,280 --> 00:02:58,080 Speaker 1: argument against the Second Circuit decision. The argument in favor 50 00:02:58,200 --> 00:03:02,760 Speaker 1: of the Second Circuits decision is that once government officials 51 00:03:02,800 --> 00:03:06,880 Speaker 1: allows some speech on government property, like, for example, allow 52 00:03:07,000 --> 00:03:10,240 Speaker 1: people to maybe have a protest on the city hall lawn, 53 00:03:10,840 --> 00:03:14,680 Speaker 1: then they have to be viewpoint neutrality administrant. And the 54 00:03:14,720 --> 00:03:17,919 Speaker 1: Second Circuit says this is more like the city hall 55 00:03:18,040 --> 00:03:22,120 Speaker 1: long than like President Trump's own lawn, because this is 56 00:03:22,160 --> 00:03:25,400 Speaker 1: an account that he's using to announce government policy. This 57 00:03:25,440 --> 00:03:28,600 Speaker 1: is an account which is being maintained in part by 58 00:03:28,639 --> 00:03:33,040 Speaker 1: a government employee, and that as a result, this becomes 59 00:03:33,080 --> 00:03:36,840 Speaker 1: more like a government run limited public forum than like 60 00:03:36,960 --> 00:03:39,280 Speaker 1: pure private property. And I should say I think it's 61 00:03:39,320 --> 00:03:41,440 Speaker 1: a close call, and I can see this the US 62 00:03:41,440 --> 00:03:43,560 Speaker 1: Supreme Court agreeing to hear the case in reverse of 63 00:03:43,560 --> 00:03:46,960 Speaker 1: the second Circuit because it's those what makes it a 64 00:03:47,000 --> 00:03:50,720 Speaker 1: close call. Because the second Circuit pointed out that Trump 65 00:03:50,800 --> 00:03:54,800 Speaker 1: uses his personal account to announce policy changes like the 66 00:03:54,840 --> 00:03:59,160 Speaker 1: ban on military service for transgender soldiers and other official 67 00:03:59,200 --> 00:04:01,400 Speaker 1: things like the non a nation of Christopher Ray as 68 00:04:01,520 --> 00:04:05,000 Speaker 1: FBI director. Well, so let's just look at that in particular. 69 00:04:05,040 --> 00:04:07,880 Speaker 1: So you could say, well, once you make official announcement 70 00:04:08,080 --> 00:04:11,520 Speaker 1: on some property, then that becomes a property place for 71 00:04:11,600 --> 00:04:15,280 Speaker 1: government speech. But I'm not sure that's right. So, for example, 72 00:04:15,720 --> 00:04:19,200 Speaker 1: an incumbent who's running for reelection might make an announcement 73 00:04:19,440 --> 00:04:23,920 Speaker 1: at a re election rally, might say, my friends, I 74 00:04:24,000 --> 00:04:26,000 Speaker 1: just want you to be the first to know this 75 00:04:26,120 --> 00:04:28,080 Speaker 1: new thing that we're doing that he hopes has going 76 00:04:28,160 --> 00:04:30,920 Speaker 1: to energize his base. You know, maybe that's not so 77 00:04:30,960 --> 00:04:33,360 Speaker 1: good for a government official to do, but that certainly 78 00:04:33,400 --> 00:04:36,440 Speaker 1: doesn't turn the rally into a place for government speech. 79 00:04:36,760 --> 00:04:40,400 Speaker 1: It's still him as a citizen, as a candidate, speaking out, 80 00:04:40,480 --> 00:04:43,920 Speaker 1: albeit about something that he is doing as an official. Likewise, 81 00:04:43,960 --> 00:04:45,880 Speaker 1: is to take the example of his own private home, 82 00:04:46,160 --> 00:04:49,120 Speaker 1: you could certainly imagine a government official who's on vacation. 83 00:04:49,279 --> 00:04:53,200 Speaker 1: He's at his vacation home, there is some urgent thing happening. 84 00:04:53,480 --> 00:04:57,240 Speaker 1: He calls a press conference at his vacation home and 85 00:04:57,400 --> 00:04:59,960 Speaker 1: announces what he's going to do. Again, that doesn't turn 86 00:05:00,000 --> 00:05:03,200 Speaker 1: earned his property, his vacation home into public property where 87 00:05:03,240 --> 00:05:06,640 Speaker 1: he has to also allow protests. Upset, was the Second 88 00:05:06,640 --> 00:05:10,680 Speaker 1: Circuit's decision then an outlier and not in line with 89 00:05:10,920 --> 00:05:15,440 Speaker 1: prior decisions? Well, no, because there's really not been much 90 00:05:15,760 --> 00:05:19,600 Speaker 1: litigation on this particular question, which is how do you 91 00:05:19,720 --> 00:05:24,599 Speaker 1: treat social media accounts that are run by government officials. 92 00:05:24,800 --> 00:05:26,800 Speaker 1: There are a few lower court cases with which I 93 00:05:26,800 --> 00:05:29,719 Speaker 1: think the Second Circuit decision mostly agreed. I think the 94 00:05:29,760 --> 00:05:33,040 Speaker 1: Second Circuit decision is the first real federal circuit precedent 95 00:05:33,200 --> 00:05:35,520 Speaker 1: on this particular subject. And if you look at the 96 00:05:35,520 --> 00:05:39,440 Speaker 1: broader picture of limited public forum law, that's something that 97 00:05:39,640 --> 00:05:43,200 Speaker 1: I think the Second Circuit decision is not inconsistent with it. Again, 98 00:05:43,240 --> 00:05:44,919 Speaker 1: it's just kind of a close call. This is a 99 00:05:44,960 --> 00:05:47,640 Speaker 1: new area, and I think the Second Circuits made a 100 00:05:47,720 --> 00:05:51,159 Speaker 1: plausible argument for its decision. But you can imagine the 101 00:05:51,200 --> 00:05:53,600 Speaker 1: Supreme Court agreeing to hear the case in reaching the 102 00:05:53,640 --> 00:05:57,200 Speaker 1: opposite results. So now I I would like to explain 103 00:05:57,279 --> 00:06:01,560 Speaker 1: this this defense from Trump. The The Justice Department said, 104 00:06:01,560 --> 00:06:05,760 Speaker 1: the Second Circuit's decision ignores the critical distinction between the 105 00:06:05,839 --> 00:06:10,440 Speaker 1: presidents sometimes official statements on Twitter, and he's always personal 106 00:06:10,480 --> 00:06:14,800 Speaker 1: decision to block respondents from his own account. Do you 107 00:06:15,120 --> 00:06:18,200 Speaker 1: understand what they're getting out there? Yes? I do. I mean, 108 00:06:18,240 --> 00:06:20,040 Speaker 1: I think it's a plausible argument. I'm not sure it's 109 00:06:20,040 --> 00:06:23,520 Speaker 1: gonna win, but I think their views. Look, even if 110 00:06:23,560 --> 00:06:27,120 Speaker 1: there is some political computiment in political even if there's 111 00:06:27,160 --> 00:06:31,720 Speaker 1: some government speech component to what President Trump is doing 112 00:06:31,800 --> 00:06:34,280 Speaker 1: in the Twitter. For example, is he announces a new 113 00:06:34,320 --> 00:06:41,440 Speaker 1: government policy, well, then that tweet itself government speech. But 114 00:06:41,480 --> 00:06:44,200 Speaker 1: it doesn't make the rest of the Twitter account government speech. 115 00:06:44,320 --> 00:06:48,280 Speaker 1: And in particular, it doesn't make um President Trump's said 116 00:06:48,440 --> 00:06:53,760 Speaker 1: decisions about whom to block into governmental decisions. That's still 117 00:06:53,800 --> 00:06:56,240 Speaker 1: Trump the person, Trump the candidate doing that, and not 118 00:06:56,279 --> 00:06:59,720 Speaker 1: Trump the president, even if it is Trump the president. 119 00:06:59,800 --> 00:07:03,360 Speaker 1: And on saying, uh that he's nominating some judge, one 120 00:07:03,400 --> 00:07:06,160 Speaker 1: way of thinking about it is when that when a 121 00:07:06,279 --> 00:07:10,440 Speaker 1: president Trump is nominating a judge, he's exercising presidential power. 122 00:07:11,200 --> 00:07:14,520 Speaker 1: He can only nominate judges because he's present and you 123 00:07:14,600 --> 00:07:18,000 Speaker 1: might stay. Therefore, an announcement of that is also presidential. 124 00:07:19,200 --> 00:07:22,480 Speaker 1: But the decisions to block or non block certain users, 125 00:07:22,520 --> 00:07:25,800 Speaker 1: you know, that's the power that every Twitter UH feed owner, 126 00:07:26,640 --> 00:07:30,440 Speaker 1: every Twitter account owner has, So that's not something where 127 00:07:30,440 --> 00:07:33,840 Speaker 1: he's acting as a government official. That's the Justice Departments position. 128 00:07:34,120 --> 00:07:36,480 Speaker 1: Another way of thinking about it is you might think 129 00:07:36,520 --> 00:07:40,400 Speaker 1: of people's decisions to block certain commenters on a Twitter 130 00:07:41,080 --> 00:07:46,280 Speaker 1: feed as kind of like when a conference organized invis 131 00:07:46,400 --> 00:07:50,800 Speaker 1: or doesn't invite particular speakers or maybe says, you know, 132 00:07:50,840 --> 00:07:52,920 Speaker 1: I'm not going to call on this question or from 133 00:07:52,960 --> 00:07:55,480 Speaker 1: the audience because I know his questions are kind of 134 00:07:55,480 --> 00:08:00,320 Speaker 1: foolish and disruptive. Generally speaking, conference organizers and able to 135 00:08:00,360 --> 00:08:02,760 Speaker 1: do that even when it's a conference that say U 136 00:08:02,840 --> 00:08:08,080 Speaker 1: c l a um, because it's seen as the speech 137 00:08:08,160 --> 00:08:13,480 Speaker 1: of the conference organizer as a professor, and not a 138 00:08:13,560 --> 00:08:19,520 Speaker 1: conference organizer as a as a government official. UM. So, 139 00:08:19,520 --> 00:08:22,440 Speaker 1: So likewise, I think they're saying, look, he's trying to 140 00:08:22,520 --> 00:08:28,200 Speaker 1: maintain this conversation among uh subscribers to his feet, and 141 00:08:28,320 --> 00:08:31,440 Speaker 1: he wants to steer this conversation away from certain kinds 142 00:08:31,440 --> 00:08:33,959 Speaker 1: of comments and towards certain other kinds of comments that 143 00:08:34,040 --> 00:08:36,280 Speaker 1: he's entitled to do this just like anybody else is 144 00:08:36,360 --> 00:08:38,199 Speaker 1: entitled to do You and I could do that in 145 00:08:38,360 --> 00:08:42,080 Speaker 1: art with So that's the Justice Department's position, and their 146 00:08:42,200 --> 00:08:46,199 Speaker 1: view is that the fact that he occasionally posts things 147 00:08:46,240 --> 00:08:49,880 Speaker 1: that actually announced government policy doesn't make the rest of 148 00:08:49,920 --> 00:08:53,360 Speaker 1: his decisions with regard to the seat into governments. So 149 00:08:53,720 --> 00:08:56,840 Speaker 1: then do you think that this is a case the 150 00:08:56,880 --> 00:09:00,400 Speaker 1: Supreme Court should take up? Well, it's hard to tell. 151 00:09:00,720 --> 00:09:03,440 Speaker 1: I don't believe there is a split among the circuits 152 00:09:03,520 --> 00:09:05,839 Speaker 1: or amongst state supreme courts on the subject. So it's 153 00:09:05,880 --> 00:09:10,240 Speaker 1: not like there is a conflict within the courts applying 154 00:09:10,640 --> 00:09:13,920 Speaker 1: First Amendment law that requires some clear resolution. That's a 155 00:09:14,000 --> 00:09:16,439 Speaker 1: common reason for the Court to grant review in a 156 00:09:16,520 --> 00:09:18,839 Speaker 1: case is because there's a conflict among lower courts. I 157 00:09:18,840 --> 00:09:22,679 Speaker 1: don't believe there is. Now. Sometimes the Court grants review 158 00:09:22,720 --> 00:09:24,920 Speaker 1: because it thinks that this is a case of national 159 00:09:25,040 --> 00:09:27,960 Speaker 1: important important, But I don't think this is some In fact, 160 00:09:28,160 --> 00:09:31,040 Speaker 1: this is a classic example of a case in which 161 00:09:31,120 --> 00:09:34,520 Speaker 1: there's very little as stake. It's very little mistake for 162 00:09:34,720 --> 00:09:37,480 Speaker 1: the president, because you know, if he can't block such users, 163 00:09:37,920 --> 00:09:40,760 Speaker 1: they'll stop him from having the Twitter account of communicating 164 00:09:40,800 --> 00:09:43,120 Speaker 1: to the public this way, there's a very little mistake 165 00:09:43,160 --> 00:09:45,640 Speaker 1: for the Twitter users because there's so many other places 166 00:09:45,679 --> 00:09:48,560 Speaker 1: that they can speak out about the president, including their 167 00:09:48,559 --> 00:09:50,480 Speaker 1: own Twitter feeds and other Twitter feeds and the like. 168 00:09:51,120 --> 00:09:53,600 Speaker 1: So as a result, I don't think this is something 169 00:09:53,600 --> 00:09:55,600 Speaker 1: that the court is likely to view is so important 170 00:09:55,600 --> 00:09:59,560 Speaker 1: to demand the court's attention. Now, there's one other basis 171 00:09:59,559 --> 00:10:01,920 Speaker 1: in which the court sometimes grant review, and that's when 172 00:10:01,920 --> 00:10:05,680 Speaker 1: there's a disagreement among the branches of government. So, for example, 173 00:10:05,800 --> 00:10:09,480 Speaker 1: if a federal statute is struck down by a lower 174 00:10:09,520 --> 00:10:12,680 Speaker 1: federal court, the U. S. Supreme Court usually agrees to 175 00:10:12,720 --> 00:10:14,760 Speaker 1: hear the case if the Justice de Government asks for 176 00:10:15,200 --> 00:10:17,120 Speaker 1: But on the theories, there's kind of like a split 177 00:10:17,160 --> 00:10:19,679 Speaker 1: among the branches, even if not among their So it 178 00:10:19,760 --> 00:10:22,840 Speaker 1: could say, well, look, the president says one thing lower 179 00:10:22,840 --> 00:10:24,880 Speaker 1: federal courts, then of the thing, we need to resolve this. 180 00:10:25,120 --> 00:10:28,880 Speaker 1: I again, here, this is something where it's really implicating 181 00:10:29,080 --> 00:10:32,680 Speaker 1: the president's power as presidents. In fact, the whole point 182 00:10:32,840 --> 00:10:36,160 Speaker 1: of the Justice Department's argument is that the president is speaking, 183 00:10:36,200 --> 00:10:39,800 Speaker 1: you're not as president. So it's just one important private 184 00:10:39,880 --> 00:10:44,600 Speaker 1: citizen essentially I'm oversimplifying that the justice, but that's that's 185 00:10:44,600 --> 00:10:46,760 Speaker 1: one aspect of it. So I can see the court 186 00:10:46,880 --> 00:10:49,560 Speaker 1: just saying, look, you know, this isn't something that merits 187 00:10:49,600 --> 00:10:52,440 Speaker 1: our time. If there's more litigation and other courts reach 188 00:10:52,440 --> 00:10:54,960 Speaker 1: opposite result, then there'll be plenty of time for us 189 00:10:54,960 --> 00:10:57,320 Speaker 1: to resolve that. But at the same time, you could 190 00:10:57,320 --> 00:11:00,079 Speaker 1: also mention the court saying, you know, this isn't just 191 00:11:00,240 --> 00:11:02,680 Speaker 1: in case. It's the case that it's certainly drawn national attention. 192 00:11:02,880 --> 00:11:05,599 Speaker 1: It is a case that implicates in some measure of 193 00:11:06,040 --> 00:11:09,000 Speaker 1: coordinate branch of government here the presidency, so they could 194 00:11:09,040 --> 00:11:11,120 Speaker 1: grant it. It's just not a very I don't think 195 00:11:11,160 --> 00:11:13,960 Speaker 1: it's very likely that don't grant, but very much thanks Eugene. 196 00:11:14,240 --> 00:11:16,800 Speaker 1: That's Eugene vat of u c l A Law School. 197 00:11:17,000 --> 00:11:19,160 Speaker 1: I'm June Grasso and this is Bloomberg