Twitter Users Sue Trump Over Blocked Accounts (Audio)

ready forces is to preserve peace and prevent war. George Washington said it. As much as Trump loves tweeting, Trump also loves to block Twitter users who have criticized or mocked him from his account. A First Amendment group is sued Trump, saying it's unconstitutional for him to block the Twitter users it represents. The Justice Department has responded that Trump has the legal right to block Twitter users on

the privately run website. Our guests are Stephen Vladdock, professor at the University of Texas Law School, and Sycretion of Procush, professor at the University of Virginia School of Law. Steve The group of seven Twitter users range from a former police officer to a writer, tell us the argument that the First Amendment group is making on their behalf. Sure, I mean, I think the basic gist of their claim June is that the president's Twitter account is part of

his job responsibilities. It's a public forum. It's a place where he hands down official statements at a place where he disseminates news. Um. And by preventing individual users from accessing that forum for what are at least from the allegations, content based reasons, the President is discriminating on the basis of the content of his user's speech against him, um, and that he's blocking them basically because they have a

viewpoint with which he disagrees. You know, in a normal context, if a government official we're shutting out particular speakers based on their viewpoint, that would received the highest scrutiny under the First Amendment and would typically be struck down by the courts. And so I we're still at a pretty early stage in this litigation, but give us an overview of what it looks like the Justice Department's defense of

Donald Trump is going to be here. Well, the Justice Development filed the letter with the court and basically made to two different claims one was that, UM, this you know, the website, UM is not a public forum. The president had this Twitter account before he was president. UM, I presumably will have it after he's president, and he's using it to communicate with people, But it's not UM. It's not an official website, our official Twitter handle for the government.

There's a separate White House Twitter feed for that. And then they're separately saying, and Stephen's very familiar with us, they're separately saying that you can't enjoin the pre sident. Under some Supreme Court cases going back to right after the Civil War, you can't enjoin the president in his official duties. And so they're saying, one, it's not a public form, contrary to what the plaintiffs are saying. And too, even if it is, you can't tell the president to

stop blocking these people from his Twitter account. So Steve, let's take those one at a time. Because when the federal Federal Appeals Court recently ruled against a key part of Trump's travel band his executive order, they lifted the injunction against the president. So how strong is the government's argue argument that an injunction is inappropriate against a president? Well, you know, June. I think it depends on the force of this eighteen sixty seven president that's I referred to.

It's called Mississippi versus Johnson, UM, and this is an important, you know, challenge to military reconstruction by the state of Mississippi. UM and the president and the Court basically ducked the merits. They actually spent about five years ducting the merits of the question by saying that at least in that case, you know, they couldn't issue an injunction directly against President Johnson.

So a bunch of other states followed up in suits Secretary Stanton Um and the Court still duck the matter on different grounds. I think to you know, most of what's happened in the last hundred years has overtaken that president. We have the Nixon case from nineteen seventy four, where the Supreme Court upheld the power of the federal courts to issue with subtoena to the president. We have lots of lower court decisions that have issued some kind of

compulsory release against the president. You know, I think the courts are going to try to find a way to avoid this question if they can. But if push comes to shove, I suspect they'll say Mississippi versus. Johnson doesn't stand for quite as broader proposition as the Justice Department has invoked it for Steve, as so often does make it makes a pretty strong case there. Do you agree

with him? I? I mean, honestly, Steve makes it sound pretty I'm pretty likely that the Court would say, no, we do have the authority to go ahead and issue an injunction against the president. You know, I I think Steve is right on the merits. I think um as a matter of constitutional law, the president can be enjoined.

But if we're going to decide what the district Court's going to do or what the courts are going to do, I don't think anyone but the Supreme Court will walk back what what is what was said in Mississippi versus Johnson, or and what's been repeated in other U. S. Supreme Court cases. So, you know, in order for what I think Steve is saying to happen, the lower courts would have to rule in favor of the United States and

would have to eventually get to the Supreme Court. And then the Supreme Court might change its mind on this sort of narrow point in line with the other cases that Steve Iss cited. But I don't think that a district court will do it because I don't think that the district court will feel that it's in a position to say that this old case in other cases that have quoted this case or relied upon it. We've been talking with Professor Steven Vladdock of the University of Texas

Law School and PROFESSORSA. Krishna Prakash of the University of Virginia School of Law about the lawsuit against President Trump for blocking people from his Twitter account and about the government's response. Steve. Part of the government's response was this was his private account before he became president, that it is a private website, and also that this is within

his authority to do. But is that contradicted by the fact that his White House officials, including Sean Spicer, have said that this is uh part of the White House and that this is something that you can look to as official statements of the White House, you know, June, I think that's the whole question that you know, if the courts get to the merits in this lawsuit, this

is going to come down to. I mean, so I was talking before the break about the arguments that, you know, the president's Twitter feed is not necessarily a public forum. I think that depends to some degree on how he's using it. And we've seen him, as you mentioned at the top of the segment, making announcements on Twitter. He announced that John Kelly was going to be his new chief of staff on Twitter. He announced that he was going to ban service by transgendered individuals in the military

on Twitter. And I think it's worth noting, I mean, Congress in even before you know, Twitter was a big part of this story. Um actually amended the Presidential Records Act to obliterate the distinction between official and unofficial social media accounts, the theory being that it's the substance of

the statement that matters, not the platform. So if that's true, if courts look at that for indications of how to treat this, I think it's gonna be hard to conclude that when the president speaks on Twitter, even through the at real Donald Trump account, he's not speaking in at least some quasi official capacity in a manner that implicates

the First Amendment. SI, how much harm are these plaintiffs really suffering so they can still see Donald Trump's tweets and they can even reply to them by setting up another account. Is there really any um loss of free

speech by letting the president block some people? Well, I mean, I think that the plaintiffs are saying that they want to be able to respond to the President as themselves, that they've built up an identity online at you know, with their real names or with the pseudonyms they're using, and that having to create a different account in order to to follow the president again puts them at a

distinct disadvantage. But you're right, the you know, a lot of people are saying, if you, you know, just sign out of Twitter, you can follow what the president saying, and so that can't be a problem. And then other people are saying, you can post under a different name,

and so you really aren't being shut out. I mean, it's effectively saying, you know, if the if at a city council meeting they throw out a person, the person can still come back in wearing some sort of mask and make the exact same comments, and so there is obviously a burden being placed on them. I think it will largely turn on the question that Steven pointed out, which is is it a public form to begin with?

And I wonder whether the courts are going to want to go down the road of of saying that it is because you know, Donald Trump can so sort of solve this problem just by turning off the ability to comment at all on his Twitter account, and then there would no longer be a public forum. But will but will he do that? Likely not, because I think he feeds off whatever positive comments he's getting off of off

of Twitter. But I think it's I think it's problematic when you start trying to apply the public form doctrine to Twitter. Right, suppose he banishes half the people from the thing. Suppose he posts more photos of his food on the account? Right is he? Is it a public form only for the official post, but not for the post of his dog or his children? It? I mean, it's it's an odd claim that because some of the

things are official, the entire account becomes official at that point. Well, Steve, let's talk about the federal judge in Virginia who ruled last month that a local politician had violated the First Amendment rights of a constituent when the politician blocked her from a Facebook page where she discussed public business, and the judge said that the Facebook page operates as a forum for speech under the First Amendment, Might this be even more of a forum? So, I think it depends.

I think I think Size put his finger, you know, right on the right, on the nub of the dispute here, which is, you know, is there a way to split the difference between those aspects of President Trump's Twitter presidents that are official, that are part of his official duties, that are communicating official statements from the president as the chief executive of the United States, from those aspects of his Twitter account that really are personal in our private

you know, one possibility here, which I think would never happen, would be for the government to say, listen, we will avow from this point forward that nothing on the at real Donald Trump account constitutes the official policy of the United States. If they said that, I actually think that would make this case a lot easier on the First Amendment basis. But we know that we're never going to

say that because the President doesn't want that. And so I think what we had June is a First Amendment mess almost entirely of the president's own making, because he is so committed to use in what is typically a personal platform for so much official business side. There's another legal theory being used by the plaintiffs that's not focused on on speech so much as the right to petition the government for redress of grievances. Is that um analytically separate.

Is that another uh significant quiver in the arrow in the quiver of the plaintiffs or does that sort of mailed right into the first to the to the free speech argument. I think it mails right in. I mean the basically, the public forum doctrine says I should be able to speak in this particular forum right be at the street or be at Twitter. And one response to that is just to say, well, you can speak in another form where you don't have to be you don't

have to speak in this form. You can speak somewhere else. But that's never a sufficient defense to a claim that I should be allowed to speak in the public forum. And so I think you know they're they're gonna the fact that they can write a letter to the president is no substitute for them being able to write on Twitter, if in fact his Twitter account is a public form. Steve, this raises cutting edge issues about the constitution and social media. If it goes forward, is it a case the Supreme

Court might take up. I think it depends on how

it unfolds. June. I mean, I think that there's certainly going to come a point sometime in the near future where the Supreme Court is going to have to sort out, at the very least the underlying merits question here, which is whether when the President sends a tweet, that tweet has the force of an executive order, that tweet has the force of any other public prep pronouncement by the President, whether that's gonna get to the Court in this context or in the context of the now pendum challenge to

the new transgender policy in the military, or something else. I think we're meant to be seen, but one way or the other, I sispect the president's use of his so called personal Twitter account is eventually going to force the Supreme Court to draw some kind of line between the public aspect of that account and the personal aspect, and that will be a very interesting Supreme Court argument. I want to thank both of you for being on

Bloomberg Law. That's Stephen Vladik, he's a professor at the University of Texas Law School, and say Krishna Prakash, professor at the University of Virginia School of Law. Thank you both. That's it for this edition of Bloomberg Law, but we'll be back tomorrow at one pm Wall Street Time, and hope that you will be as well. Thanks to our producer David Suckerman and our technical director Mark sinist Councy.

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