Speaker 1: President Trump's tweeting has been the subject of comedy, derision,
Speaker 1: and concern. It's become his method of giving information to
Speaker 1: the public. Trump announced his nomination of Christopher Ray as
Speaker 1: FBI director on Twitter, he tweeted threats that he had
Speaker 1: military solutions that were locked and loaded to use on
Speaker 1: North Korea. His tweets have often led members of his
Speaker 1: administration to respond to public concerns. Here's National Security Advisor
Speaker 1: hr McMaster on ABC's This Week. The purpose of capable
Speaker 1: ready forces is to preserve peace and prevent war. George
Speaker 1: Washington said it. As much as Trump loves tweeting, Trump
Speaker 1: also loves to block Twitter users who have criticized or
Speaker 1: mocked him from his account. A First Amendment group is
Speaker 1: sued Trump, saying it's unconstitutional for him to block the
Speaker 1: Twitter users it represents. The Justice Department has responded that
Speaker 1: Trump has the legal right to block Twitter users on
Speaker 1: the privately run website. Our guests are Stephen Vladdock, professor
Speaker 1: at the University of Texas Law School, and Sycretion of Procush,
Speaker 1: professor at the University of Virginia School of Law. Steve
Speaker 1: The group of seven Twitter users range from a former
Speaker 1: police officer to a writer, tell us the argument that
Speaker 1: the First Amendment group is making on their behalf. Sure,
Speaker 1: I mean, I think the basic gist of their claim
Speaker 1: June is that the president's Twitter account is part of
Speaker 1: his job responsibilities. It's a public forum. It's a place
Speaker 1: where he hands down official statements at a place where
Speaker 1: he disseminates news. Um. And by preventing individual users from
Speaker 1: accessing that forum for what are at least from the allegations,
Speaker 1: content based reasons, the President is discriminating on the basis
Speaker 1: of the content of his user's speech against him, um,
Speaker 1: and that he's blocking them basically because they have a
Speaker 1: viewpoint with which he disagrees. You know, in a normal context,
Speaker 1: if a government official we're shutting out particular speakers based
Speaker 1: on their viewpoint, that would received the highest scrutiny under
Speaker 1: the First Amendment and would typically be struck down by
Speaker 1: the courts. And so I we're still at a pretty
Speaker 1: early stage in this litigation, but give us an overview
Speaker 1: of what it looks like the Justice Department's defense of
Speaker 1: Donald Trump is going to be here. Well, the Justice
Speaker 1: Development filed the letter with the court and basically made
Speaker 1: to two different claims one was that, UM, this you know,
Speaker 1: the website, UM is not a public forum. The president
Speaker 1: had this Twitter account before he was president. UM, I
Speaker 1: presumably will have it after he's president, and he's using
Speaker 1: it to communicate with people, But it's not UM. It's
Speaker 1: not an official website, our official Twitter handle for the government.
Speaker 1: There's a separate White House Twitter feed for that. And
Speaker 1: then they're separately saying, and Stephen's very familiar with us,
Speaker 1: they're separately saying that you can't enjoin the pre sident.
Speaker 1: Under some Supreme Court cases going back to right after
Speaker 1: the Civil War, you can't enjoin the president in his
Speaker 1: official duties. And so they're saying, one, it's not a
Speaker 1: public form, contrary to what the plaintiffs are saying. And too,
Speaker 1: even if it is, you can't tell the president to
Speaker 1: stop blocking these people from his Twitter account. So Steve,
Speaker 1: let's take those one at a time. Because when the
Speaker 1: federal Federal Appeals Court recently ruled against a key part
Speaker 1: of Trump's travel band his executive order, they lifted the
Speaker 1: injunction against the president. So how strong is the government's
Speaker 1: argue argument that an injunction is inappropriate against a president? Well,
Speaker 1: you know, June. I think it depends on the force
Speaker 1: of this eighteen sixty seven president that's I referred to.
Speaker 1: It's called Mississippi versus Johnson, UM, and this is an important,
Speaker 1: you know, challenge to military reconstruction by the state of Mississippi.
Speaker 1: UM and the president and the Court basically ducked the merits.
Speaker 1: They actually spent about five years ducting the merits of
Speaker 1: the question by saying that at least in that case,
Speaker 1: you know, they couldn't issue an injunction directly against President Johnson.
Speaker 1: So a bunch of other states followed up in suits
Speaker 1: Secretary Stanton Um and the Court still duck the matter
Speaker 1: on different grounds. I think to you know, most of
Speaker 1: what's happened in the last hundred years has overtaken that president.
Speaker 1: We have the Nixon case from nineteen seventy four, where
Speaker 1: the Supreme Court upheld the power of the federal courts
Speaker 1: to issue with subtoena to the president. We have lots
Speaker 1: of lower court decisions that have issued some kind of
Speaker 1: compulsory release against the president. You know, I think the
Speaker 1: courts are going to try to find a way to
Speaker 1: avoid this question if they can. But if push comes
Speaker 1: to shove, I suspect they'll say Mississippi versus. Johnson doesn't
Speaker 1: stand for quite as broader proposition as the Justice Department
Speaker 1: has invoked it for Steve, as so often does make
Speaker 1: it makes a pretty strong case there. Do you agree
Speaker 1: with him? I? I mean, honestly, Steve makes it sound
Speaker 1: pretty I'm pretty likely that the Court would say, no,
Speaker 1: we do have the authority to go ahead and issue
Speaker 1: an injunction against the president. You know, I I think
Speaker 1: Steve is right on the merits. I think um as
Speaker 1: a matter of constitutional law, the president can be enjoined.
Speaker 1: But if we're going to decide what the district Court's
Speaker 1: going to do or what the courts are going to do,
Speaker 1: I don't think anyone but the Supreme Court will walk
Speaker 1: back what what is what was said in Mississippi versus Johnson,
Speaker 1: or and what's been repeated in other U. S. Supreme
Speaker 1: Court cases. So, you know, in order for what I
Speaker 1: think Steve is saying to happen, the lower courts would
Speaker 1: have to rule in favor of the United States and
Speaker 1: would have to eventually get to the Supreme Court. And
Speaker 1: then the Supreme Court might change its mind on this
Speaker 1: sort of narrow point in line with the other cases
Speaker 1: that Steve Iss cited. But I don't think that a
Speaker 1: district court will do it because I don't think that
Speaker 1: the district court will feel that it's in a position
Speaker 1: to say that this old case in other cases that
Speaker 1: have quoted this case or relied upon it. We've been
Speaker 1: talking with Professor Steven Vladdock of the University of Texas
Speaker 1: Law School and PROFESSORSA. Krishna Prakash of the University of
Speaker 1: Virginia School of Law about the lawsuit against President Trump
Speaker 1: for blocking people from his Twitter account and about the
Speaker 1: government's response. Steve. Part of the government's response was this
Speaker 1: was his private account before he became president, that it
Speaker 1: is a private website, and also that this is within
Speaker 1: his authority to do. But is that contradicted by the
Speaker 1: fact that his White House officials, including Sean Spicer, have
Speaker 1: said that this is uh part of the White House
Speaker 1: and that this is something that you can look to
Speaker 1: as official statements of the White House, you know, June,
Speaker 1: I think that's the whole question that you know, if
Speaker 1: the courts get to the merits in this lawsuit, this
Speaker 1: is going to come down to. I mean, so I
Speaker 1: was talking before the break about the arguments that, you know,
Speaker 1: the president's Twitter feed is not necessarily a public forum.
Speaker 1: I think that depends to some degree on how he's
Speaker 1: using it. And we've seen him, as you mentioned at
Speaker 1: the top of the segment, making announcements on Twitter. He
Speaker 1: announced that John Kelly was going to be his new
Speaker 1: chief of staff on Twitter. He announced that he was
Speaker 1: going to ban service by transgendered individuals in the military
Speaker 1: on Twitter. And I think it's worth noting, I mean,
Speaker 1: Congress in even before you know, Twitter was a big
Speaker 1: part of this story. Um actually amended the Presidential Records
Speaker 1: Act to obliterate the distinction between official and unofficial social
Speaker 1: media accounts, the theory being that it's the substance of
Speaker 1: the statement that matters, not the platform. So if that's true,
Speaker 1: if courts look at that for indications of how to
Speaker 1: treat this, I think it's gonna be hard to conclude
Speaker 1: that when the president speaks on Twitter, even through the
Speaker 1: at real Donald Trump account, he's not speaking in at
Speaker 1: least some quasi official capacity in a manner that implicates
Speaker 1: the First Amendment. SI, how much harm are these plaintiffs
Speaker 1: really suffering so they can still see Donald Trump's tweets
Speaker 1: and they can even reply to them by setting up
Speaker 1: another account. Is there really any um loss of free
Speaker 1: speech by letting the president block some people? Well, I mean,
Speaker 1: I think that the plaintiffs are saying that they want
Speaker 1: to be able to respond to the President as themselves,
Speaker 1: that they've built up an identity online at you know,
Speaker 1: with their real names or with the pseudonyms they're using,
Speaker 1: and that having to create a different account in order
Speaker 1: to to follow the president again puts them at a
Speaker 1: distinct disadvantage. But you're right, the you know, a lot
Speaker 1: of people are saying, if you, you know, just sign
Speaker 1: out of Twitter, you can follow what the president saying,
Speaker 1: and so that can't be a problem. And then other
Speaker 1: people are saying, you can post under a different name,
Speaker 1: and so you really aren't being shut out. I mean,
Speaker 1: it's effectively saying, you know, if the if at a
Speaker 1: city council meeting they throw out a person, the person
Speaker 1: can still come back in wearing some sort of mask
Speaker 1: and make the exact same comments, and so there is
Speaker 1: obviously a burden being placed on them. I think it
Speaker 1: will largely turn on the question that Steven pointed out,
Speaker 1: which is is it a public form to begin with?
Speaker 1: And I wonder whether the courts are going to want
Speaker 1: to go down the road of of saying that it
Speaker 1: is because you know, Donald Trump can so sort of
Speaker 1: solve this problem just by turning off the ability to
Speaker 1: comment at all on his Twitter account, and then there
Speaker 1: would no longer be a public forum. But will but
Speaker 1: will he do that? Likely not, because I think he
Speaker 1: feeds off whatever positive comments he's getting off of off
Speaker 1: of Twitter. But I think it's I think it's problematic
Speaker 1: when you start trying to apply the public form doctrine
Speaker 1: to Twitter. Right, suppose he banishes half the people from
Speaker 1: the thing. Suppose he posts more photos of his food
Speaker 1: on the account? Right is he? Is it a public
Speaker 1: form only for the official post, but not for the
Speaker 1: post of his dog or his children? It? I mean,
Speaker 1: it's it's an odd claim that because some of the
Speaker 1: things are official, the entire account becomes official at that point. Well, Steve,
Speaker 1: let's talk about the federal judge in Virginia who ruled
Speaker 1: last month that a local politician had violated the First
Speaker 1: Amendment rights of a constituent when the politician blocked her
Speaker 1: from a Facebook page where she discussed public business, and
Speaker 1: the judge said that the Facebook page operates as a
Speaker 1: forum for speech under the First Amendment, Might this be
Speaker 1: even more of a forum? So, I think it depends.
Speaker 1: I think I think Size put his finger, you know,
Speaker 1: right on the right, on the nub of the dispute here,
Speaker 1: which is, you know, is there a way to split
Speaker 1: the difference between those aspects of President Trump's Twitter presidents
Speaker 1: that are official, that are part of his official duties,
Speaker 1: that are communicating official statements from the president as the
Speaker 1: chief executive of the United States, from those aspects of
Speaker 1: his Twitter account that really are personal in our private
Speaker 1: you know, one possibility here, which I think would never happen,
Speaker 1: would be for the government to say, listen, we will
Speaker 1: avow from this point forward that nothing on the at
Speaker 1: real Donald Trump account constitutes the official policy of the
Speaker 1: United States. If they said that, I actually think that
Speaker 1: would make this case a lot easier on the First
Speaker 1: Amendment basis. But we know that we're never going to
Speaker 1: say that because the President doesn't want that. And so
Speaker 1: I think what we had June is a First Amendment
Speaker 1: mess almost entirely of the president's own making, because he
Speaker 1: is so committed to use in what is typically a
Speaker 1: personal platform for so much official business side. There's another
Speaker 1: legal theory being used by the plaintiffs that's not focused
Speaker 1: on on speech so much as the right to petition
Speaker 1: the government for redress of grievances. Is that um analytically separate.
Speaker 1: Is that another uh significant quiver in the arrow in
Speaker 1: the quiver of the plaintiffs or does that sort of
Speaker 1: mailed right into the first to the to the free
Speaker 1: speech argument. I think it mails right in. I mean
Speaker 1: the basically, the public forum doctrine says I should be
Speaker 1: able to speak in this particular forum right be at
Speaker 1: the street or be at Twitter. And one response to
Speaker 1: that is just to say, well, you can speak in
Speaker 1: another form where you don't have to be you don't
Speaker 1: have to speak in this form. You can speak somewhere else.
Speaker 1: But that's never a sufficient defense to a claim that
Speaker 1: I should be allowed to speak in the public forum.
Speaker 1: And so I think you know they're they're gonna the
Speaker 1: fact that they can write a letter to the president
Speaker 1: is no substitute for them being able to write on Twitter,
Speaker 1: if in fact his Twitter account is a public form. Steve,
Speaker 1: this raises cutting edge issues about the constitution and social media.
Speaker 1: If it goes forward, is it a case the Supreme
Speaker 1: Court might take up. I think it depends on how
Speaker 1: it unfolds. June. I mean, I think that there's certainly
Speaker 1: going to come a point sometime in the near future
Speaker 1: where the Supreme Court is going to have to sort out,
Speaker 1: at the very least the underlying merits question here, which
Speaker 1: is whether when the President sends a tweet, that tweet
Speaker 1: has the force of an executive order, that tweet has
Speaker 1: the force of any other public prep pronouncement by the President,
Speaker 1: whether that's gonna get to the Court in this context
Speaker 1: or in the context of the now pendum challenge to
Speaker 1: the new transgender policy in the military, or something else.
Speaker 1: I think we're meant to be seen, but one way
Speaker 1: or the other, I sispect the president's use of his
Speaker 1: so called personal Twitter account is eventually going to force
Speaker 1: the Supreme Court to draw some kind of line between
Speaker 1: the public aspect of that account and the personal aspect,
Speaker 1: and that will be a very interesting Supreme Court argument.
Speaker 1: I want to thank both of you for being on
Speaker 1: Bloomberg Law. That's Stephen Vladik, he's a professor at the
Speaker 1: University of Texas Law School, and say Krishna Prakash, professor
Speaker 1: at the University of Virginia School of Law. Thank you both.
Speaker 1: That's it for this edition of Bloomberg Law, but we'll
Speaker 1: be back tomorrow at one pm Wall Street Time, and
Speaker 1: hope that you will be as well. Thanks to our
Speaker 1: producer David Suckerman and our technical director Mark sinist Councy.
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