WEBVTT - Twitter Users Sue Trump Over Blocked Accounts (Audio)

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<v Speaker 1>President Trump's tweeting has been the subject of comedy, derision,

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<v Speaker 1>and concern. It's become his method of giving information to

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<v Speaker 1>the public. Trump announced his nomination of Christopher Ray as

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<v Speaker 1>FBI director on Twitter, he tweeted threats that he had

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<v Speaker 1>military solutions that were locked and loaded to use on

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<v Speaker 1>North Korea. His tweets have often led members of his

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<v Speaker 1>administration to respond to public concerns. Here's National Security Advisor

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<v Speaker 1>hr McMaster on ABC's This Week. The purpose of capable

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<v Speaker 1>ready forces is to preserve peace and prevent war. George

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<v Speaker 1>Washington said it. As much as Trump loves tweeting, Trump

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<v Speaker 1>also loves to block Twitter users who have criticized or

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<v Speaker 1>mocked him from his account. A First Amendment group is

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<v Speaker 1>sued Trump, saying it's unconstitutional for him to block the

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<v Speaker 1>Twitter users it represents. The Justice Department has responded that

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<v Speaker 1>Trump has the legal right to block Twitter users on

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<v Speaker 1>the privately run website. Our guests are Stephen Vladdock, professor

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<v Speaker 1>at the University of Texas Law School, and Sycretion of Procush,

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<v Speaker 1>professor at the University of Virginia School of Law. Steve

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<v Speaker 1>The group of seven Twitter users range from a former

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<v Speaker 1>police officer to a writer, tell us the argument that

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<v Speaker 1>the First Amendment group is making on their behalf. Sure,

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<v Speaker 1>I mean, I think the basic gist of their claim

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<v Speaker 1>June is that the president's Twitter account is part of

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<v Speaker 1>his job responsibilities. It's a public forum. It's a place

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<v Speaker 1>where he hands down official statements at a place where

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<v Speaker 1>he disseminates news. Um. And by preventing individual users from

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<v Speaker 1>accessing that forum for what are at least from the allegations,

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<v Speaker 1>content based reasons, the President is discriminating on the basis

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<v Speaker 1>of the content of his user's speech against him, um,

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<v Speaker 1>and that he's blocking them basically because they have a

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<v Speaker 1>viewpoint with which he disagrees. You know, in a normal context,

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<v Speaker 1>if a government official we're shutting out particular speakers based

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<v Speaker 1>on their viewpoint, that would received the highest scrutiny under

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<v Speaker 1>the First Amendment and would typically be struck down by

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<v Speaker 1>the courts. And so I we're still at a pretty

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<v Speaker 1>early stage in this litigation, but give us an overview

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<v Speaker 1>of what it looks like the Justice Department's defense of

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<v Speaker 1>Donald Trump is going to be here. Well, the Justice

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<v Speaker 1>Development filed the letter with the court and basically made

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<v Speaker 1>to two different claims one was that, UM, this you know,

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<v Speaker 1>the website, UM is not a public forum. The president

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<v Speaker 1>had this Twitter account before he was president. UM, I

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<v Speaker 1>presumably will have it after he's president, and he's using

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<v Speaker 1>it to communicate with people, But it's not UM. It's

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<v Speaker 1>not an official website, our official Twitter handle for the government.

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<v Speaker 1>There's a separate White House Twitter feed for that. And

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<v Speaker 1>then they're separately saying, and Stephen's very familiar with us,

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<v Speaker 1>they're separately saying that you can't enjoin the pre sident.

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<v Speaker 1>Under some Supreme Court cases going back to right after

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<v Speaker 1>the Civil War, you can't enjoin the president in his

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<v Speaker 1>official duties. And so they're saying, one, it's not a

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<v Speaker 1>public form, contrary to what the plaintiffs are saying. And too,

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<v Speaker 1>even if it is, you can't tell the president to

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<v Speaker 1>stop blocking these people from his Twitter account. So Steve,

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<v Speaker 1>let's take those one at a time. Because when the

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<v Speaker 1>federal Federal Appeals Court recently ruled against a key part

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<v Speaker 1>of Trump's travel band his executive order, they lifted the

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<v Speaker 1>injunction against the president. So how strong is the government's

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<v Speaker 1>argue argument that an injunction is inappropriate against a president? Well,

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<v Speaker 1>you know, June. I think it depends on the force

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<v Speaker 1>of this eighteen sixty seven president that's I referred to.

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<v Speaker 1>It's called Mississippi versus Johnson, UM, and this is an important,

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<v Speaker 1>you know, challenge to military reconstruction by the state of Mississippi.

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<v Speaker 1>UM and the president and the Court basically ducked the merits.

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<v Speaker 1>They actually spent about five years ducting the merits of

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<v Speaker 1>the question by saying that at least in that case,

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<v Speaker 1>you know, they couldn't issue an injunction directly against President Johnson.

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<v Speaker 1>So a bunch of other states followed up in suits

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<v Speaker 1>Secretary Stanton Um and the Court still duck the matter

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<v Speaker 1>on different grounds. I think to you know, most of

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<v Speaker 1>what's happened in the last hundred years has overtaken that president.

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<v Speaker 1>We have the Nixon case from nineteen seventy four, where

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<v Speaker 1>the Supreme Court upheld the power of the federal courts

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<v Speaker 1>to issue with subtoena to the president. We have lots

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<v Speaker 1>of lower court decisions that have issued some kind of

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<v Speaker 1>compulsory release against the president. You know, I think the

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<v Speaker 1>courts are going to try to find a way to

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<v Speaker 1>avoid this question if they can. But if push comes

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<v Speaker 1>to shove, I suspect they'll say Mississippi versus. Johnson doesn't

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<v Speaker 1>stand for quite as broader proposition as the Justice Department

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<v Speaker 1>has invoked it for Steve, as so often does make

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<v Speaker 1>it makes a pretty strong case there. Do you agree

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<v Speaker 1>with him? I? I mean, honestly, Steve makes it sound

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<v Speaker 1>pretty I'm pretty likely that the Court would say, no,

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<v Speaker 1>we do have the authority to go ahead and issue

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<v Speaker 1>an injunction against the president. You know, I I think

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<v Speaker 1>Steve is right on the merits. I think um as

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<v Speaker 1>a matter of constitutional law, the president can be enjoined.

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<v Speaker 1>But if we're going to decide what the district Court's

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<v Speaker 1>going to do or what the courts are going to do,

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<v Speaker 1>I don't think anyone but the Supreme Court will walk

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<v Speaker 1>back what what is what was said in Mississippi versus Johnson,

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<v Speaker 1>or and what's been repeated in other U. S. Supreme

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<v Speaker 1>Court cases. So, you know, in order for what I

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<v Speaker 1>think Steve is saying to happen, the lower courts would

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<v Speaker 1>have to rule in favor of the United States and

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<v Speaker 1>would have to eventually get to the Supreme Court. And

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<v Speaker 1>then the Supreme Court might change its mind on this

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<v Speaker 1>sort of narrow point in line with the other cases

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<v Speaker 1>that Steve Iss cited. But I don't think that a

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<v Speaker 1>district court will do it because I don't think that

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<v Speaker 1>the district court will feel that it's in a position

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<v Speaker 1>to say that this old case in other cases that

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<v Speaker 1>have quoted this case or relied upon it. We've been

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<v Speaker 1>talking with Professor Steven Vladdock of the University of Texas

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<v Speaker 1>Law School and PROFESSORSA. Krishna Prakash of the University of

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<v Speaker 1>Virginia School of Law about the lawsuit against President Trump

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<v Speaker 1>for blocking people from his Twitter account and about the

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<v Speaker 1>government's response. Steve. Part of the government's response was this

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<v Speaker 1>was his private account before he became president, that it

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<v Speaker 1>is a private website, and also that this is within

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<v Speaker 1>his authority to do. But is that contradicted by the

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<v Speaker 1>fact that his White House officials, including Sean Spicer, have

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<v Speaker 1>said that this is uh part of the White House

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<v Speaker 1>and that this is something that you can look to

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<v Speaker 1>as official statements of the White House, you know, June,

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<v Speaker 1>I think that's the whole question that you know, if

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<v Speaker 1>the courts get to the merits in this lawsuit, this

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<v Speaker 1>is going to come down to. I mean, so I

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<v Speaker 1>was talking before the break about the arguments that, you know,

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<v Speaker 1>the president's Twitter feed is not necessarily a public forum.

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<v Speaker 1>I think that depends to some degree on how he's

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<v Speaker 1>using it. And we've seen him, as you mentioned at

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<v Speaker 1>the top of the segment, making announcements on Twitter. He

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<v Speaker 1>announced that John Kelly was going to be his new

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<v Speaker 1>chief of staff on Twitter. He announced that he was

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<v Speaker 1>going to ban service by transgendered individuals in the military

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<v Speaker 1>on Twitter. And I think it's worth noting, I mean,

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<v Speaker 1>Congress in even before you know, Twitter was a big

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<v Speaker 1>part of this story. Um actually amended the Presidential Records

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<v Speaker 1>Act to obliterate the distinction between official and unofficial social

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<v Speaker 1>media accounts, the theory being that it's the substance of

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<v Speaker 1>the statement that matters, not the platform. So if that's true,

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<v Speaker 1>if courts look at that for indications of how to

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<v Speaker 1>treat this, I think it's gonna be hard to conclude

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<v Speaker 1>that when the president speaks on Twitter, even through the

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<v Speaker 1>at real Donald Trump account, he's not speaking in at

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<v Speaker 1>least some quasi official capacity in a manner that implicates

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<v Speaker 1>the First Amendment. SI, how much harm are these plaintiffs

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<v Speaker 1>really suffering so they can still see Donald Trump's tweets

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<v Speaker 1>and they can even reply to them by setting up

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<v Speaker 1>another account. Is there really any um loss of free

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<v Speaker 1>speech by letting the president block some people? Well, I mean,

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<v Speaker 1>I think that the plaintiffs are saying that they want

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<v Speaker 1>to be able to respond to the President as themselves,

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<v Speaker 1>that they've built up an identity online at you know,

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<v Speaker 1>with their real names or with the pseudonyms they're using,

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<v Speaker 1>and that having to create a different account in order

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<v Speaker 1>to to follow the president again puts them at a

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<v Speaker 1>distinct disadvantage. But you're right, the you know, a lot

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<v Speaker 1>of people are saying, if you, you know, just sign

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<v Speaker 1>out of Twitter, you can follow what the president saying,

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<v Speaker 1>and so that can't be a problem. And then other

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<v Speaker 1>people are saying, you can post under a different name,

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<v Speaker 1>and so you really aren't being shut out. I mean,

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<v Speaker 1>it's effectively saying, you know, if the if at a

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<v Speaker 1>city council meeting they throw out a person, the person

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<v Speaker 1>can still come back in wearing some sort of mask

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<v Speaker 1>and make the exact same comments, and so there is

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<v Speaker 1>obviously a burden being placed on them. I think it

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<v Speaker 1>will largely turn on the question that Steven pointed out,

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<v Speaker 1>which is is it a public form to begin with?

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<v Speaker 1>And I wonder whether the courts are going to want

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<v Speaker 1>to go down the road of of saying that it

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<v Speaker 1>is because you know, Donald Trump can so sort of

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<v Speaker 1>solve this problem just by turning off the ability to

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<v Speaker 1>comment at all on his Twitter account, and then there

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<v Speaker 1>would no longer be a public forum. But will but

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<v Speaker 1>will he do that? Likely not, because I think he

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<v Speaker 1>feeds off whatever positive comments he's getting off of off

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<v Speaker 1>of Twitter. But I think it's I think it's problematic

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<v Speaker 1>when you start trying to apply the public form doctrine

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<v Speaker 1>to Twitter. Right, suppose he banishes half the people from

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<v Speaker 1>the thing. Suppose he posts more photos of his food

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<v Speaker 1>on the account? Right is he? Is it a public

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<v Speaker 1>form only for the official post, but not for the

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<v Speaker 1>post of his dog or his children? It? I mean,

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<v Speaker 1>it's it's an odd claim that because some of the

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<v Speaker 1>things are official, the entire account becomes official at that point. Well, Steve,

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<v Speaker 1>let's talk about the federal judge in Virginia who ruled

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<v Speaker 1>last month that a local politician had violated the First

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<v Speaker 1>Amendment rights of a constituent when the politician blocked her

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<v Speaker 1>from a Facebook page where she discussed public business, and

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<v Speaker 1>the judge said that the Facebook page operates as a

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<v Speaker 1>forum for speech under the First Amendment, Might this be

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<v Speaker 1>even more of a forum? So, I think it depends.

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<v Speaker 1>I think I think Size put his finger, you know,

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<v Speaker 1>right on the right, on the nub of the dispute here,

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<v Speaker 1>which is, you know, is there a way to split

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<v Speaker 1>the difference between those aspects of President Trump's Twitter presidents

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<v Speaker 1>that are official, that are part of his official duties,

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<v Speaker 1>that are communicating official statements from the president as the

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<v Speaker 1>chief executive of the United States, from those aspects of

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<v Speaker 1>his Twitter account that really are personal in our private

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<v Speaker 1>you know, one possibility here, which I think would never happen,

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<v Speaker 1>would be for the government to say, listen, we will

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<v Speaker 1>avow from this point forward that nothing on the at

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<v Speaker 1>real Donald Trump account constitutes the official policy of the

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<v Speaker 1>United States. If they said that, I actually think that

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<v Speaker 1>would make this case a lot easier on the First

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<v Speaker 1>Amendment basis. But we know that we're never going to

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<v Speaker 1>say that because the President doesn't want that. And so

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<v Speaker 1>I think what we had June is a First Amendment

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<v Speaker 1>mess almost entirely of the president's own making, because he

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<v Speaker 1>is so committed to use in what is typically a

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<v Speaker 1>personal platform for so much official business side. There's another

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<v Speaker 1>legal theory being used by the plaintiffs that's not focused

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<v Speaker 1>on on speech so much as the right to petition

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<v Speaker 1>the government for redress of grievances. Is that um analytically separate.

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<v Speaker 1>Is that another uh significant quiver in the arrow in

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<v Speaker 1>the quiver of the plaintiffs or does that sort of

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<v Speaker 1>mailed right into the first to the to the free

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<v Speaker 1>speech argument. I think it mails right in. I mean

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<v Speaker 1>the basically, the public forum doctrine says I should be

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<v Speaker 1>able to speak in this particular forum right be at

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<v Speaker 1>the street or be at Twitter. And one response to

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<v Speaker 1>that is just to say, well, you can speak in

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<v Speaker 1>another form where you don't have to be you don't

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<v Speaker 1>have to speak in this form. You can speak somewhere else.

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<v Speaker 1>But that's never a sufficient defense to a claim that

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<v Speaker 1>I should be allowed to speak in the public forum.

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<v Speaker 1>And so I think you know they're they're gonna the

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<v Speaker 1>fact that they can write a letter to the president

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<v Speaker 1>is no substitute for them being able to write on Twitter,

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<v Speaker 1>if in fact his Twitter account is a public form. Steve,

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<v Speaker 1>this raises cutting edge issues about the constitution and social media.

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<v Speaker 1>If it goes forward, is it a case the Supreme

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<v Speaker 1>Court might take up. I think it depends on how

0:12:34.880 --> 0:12:37.120
<v Speaker 1>it unfolds. June. I mean, I think that there's certainly

0:12:37.120 --> 0:12:39.960
<v Speaker 1>going to come a point sometime in the near future

0:12:40.320 --> 0:12:42.360
<v Speaker 1>where the Supreme Court is going to have to sort out,

0:12:42.400 --> 0:12:46.040
<v Speaker 1>at the very least the underlying merits question here, which

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<v Speaker 1>is whether when the President sends a tweet, that tweet

0:12:49.440 --> 0:12:52.320
<v Speaker 1>has the force of an executive order, that tweet has

0:12:52.360 --> 0:12:55.400
<v Speaker 1>the force of any other public prep pronouncement by the President,

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<v Speaker 1>whether that's gonna get to the Court in this context

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<v Speaker 1>or in the context of the now pendum challenge to

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<v Speaker 1>the new transgender policy in the military, or something else.

0:13:05.800 --> 0:13:07.280
<v Speaker 1>I think we're meant to be seen, but one way

0:13:07.360 --> 0:13:09.640
<v Speaker 1>or the other, I sispect the president's use of his

0:13:10.280 --> 0:13:13.439
<v Speaker 1>so called personal Twitter account is eventually going to force

0:13:13.520 --> 0:13:16.480
<v Speaker 1>the Supreme Court to draw some kind of line between

0:13:16.800 --> 0:13:19.640
<v Speaker 1>the public aspect of that account and the personal aspect,

0:13:19.880 --> 0:13:22.920
<v Speaker 1>and that will be a very interesting Supreme Court argument.

0:13:23.000 --> 0:13:24.480
<v Speaker 1>I want to thank both of you for being on

0:13:24.520 --> 0:13:27.720
<v Speaker 1>Bloomberg Law. That's Stephen Vladik, he's a professor at the

0:13:27.840 --> 0:13:31.679
<v Speaker 1>University of Texas Law School, and say Krishna Prakash, professor

0:13:31.720 --> 0:13:35.160
<v Speaker 1>at the University of Virginia School of Law. Thank you both.

0:13:35.520 --> 0:13:37.880
<v Speaker 1>That's it for this edition of Bloomberg Law, but we'll

0:13:37.920 --> 0:13:40.240
<v Speaker 1>be back tomorrow at one pm Wall Street Time, and

0:13:40.320 --> 0:13:43.000
<v Speaker 1>hope that you will be as well. Thanks to our

0:13:43.040 --> 0:13:46.679
<v Speaker 1>producer David Suckerman and our technical director Mark sinist Councy.

0:13:47.080 --> 0:13:49.559
<v Speaker 1>You can always find the latest legal news at Bloomberg

0:13:49.600 --> 0:13:52.400
<v Speaker 1>Law dot com and Bloomberg BNA dot com, plus a

0:13:52.480 --> 0:13:55.160
<v Speaker 1>website for the legal community at Big Law Business dot

0:13:55.200 --> 0:13:58.400
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0:13:58.520 --> 0:14:01.400
<v Speaker 1>business development tools Era as well, and don't forget to

0:14:01.440 --> 0:14:03.719
<v Speaker 1>listen to the latest legal topics in the news on

0:14:03.760 --> 0:14:07.600
<v Speaker 1>our Bloomberg Law podcast. Coming up next, Bloomberg Markets with

0:14:07.679 --> 0:14:12.120
<v Speaker 1>Carol Masser and Cory Johnson. I'm June Grasso with Greg Store.

0:14:12.200 --> 0:14:15.480
<v Speaker 1>Thanks so much for listening to Bloomberg Law. We'll be

0:14:15.600 --> 0:14:17.880
<v Speaker 1>back with you tomorrow. This is Bloomberg