Constitutional democracies are under attack across the globe. As the tide of autocracy rises, not even our American republic is safe. Among the most alarming signals is President Donald Trump’s assault on truth and attack on dissent. He asserts, without a shred of evidence, that his 2016 opponent’s nearly 3 million popular vote margin had to reflect voter fraud. He dismisses as a hoax the mounting evidence that it was he who actually defrauded the American people by directing payments of hush money and deceiving voters about his continued pursuit of business interests in Russia.
Our legal system provides no timely relief from such alarming mendacity even as it erodes the foundations of our republic. But when the president shores up this deception by silencing disagreement and dissent, he finally crosses a legal line that the courts thankfully can police. A landmark legal battle that will unfold later this month in federal court in New York represents a welcome chance for freedom of expression to triumph over falsehood. The two of us, together with other First Amendment experts, have filed a friend-of-the-court brief supporting those who sued Trump for blocking their free expression. That brief urges the court to seize this vital opportunity to vindicate our Constitution’s promise that freedom of speech will pave the path to a society built on truth, not lies.
Trump’s threats to America’s core traditions of freedom of speech and of the press have taken many forms. He repeatedly attacks the media, in language reminiscent of dictators, as “the enemy of the people.” He has also targeted particular journalists and media outlets whose coverage displeases him. Trump stripped CNN reporter Jim Acosta of his White House press credentials in retaliation for his vigorous questioning, and threatened to revoke the licenses of television stations whose reporting he dislikes. He pressured his administration to oppose the merger between AT&T and Time Warner not, many suspected, because of legitimate antitrust concerns but because of personal animus against CNN (owned by Time Warner). He reportedly sought to raise shipping rates for Amazon because of similar animus against the Washington Post (owned by Amazon’s owner, Jeff Bezos). He retaliated against American journalists he dislikes by barring them from covering his dinner with North Korean leader Kim Jong-un. And, most recently, his administration is reported to have assembled a list of journalists and lawyers to interrogate at America’s southern border.
These are the sorts of moves we might expect from Trump’s North Korean dining companion or from the dictator of some banana republic, not from a U.S. president. A small subset of the president’s actions—like the rescission of Acosta’s White House press credentials—have been challenged in court, where Trump promptly lost. But most will never see the inside of a courtroom.
That makes the argument to be held in a New York federal court on March 26 especially significant. The legal dispute began when some Twitter users found themselves blocked by the president’s @realDonaldTrump Twitter account after they tweeted comments about Trump or his policies that he evidently disliked. They sued, represented by the Knight First Amendment Institute and alleging that the president’s blocking of them on Twitter violated their First Amendment right to free speech. A federal district court ruled in their favor. Trump appealed. Now the case will be heard by a three-judge appeals court.
This case represents a unique opportunity to check Trump’s silencing of dissent and to begin the necessary task of establishing free speech principles for today’s digital age. It is the dual importance of the controversy—sitting at the crossroads of creeping authoritarianism and the path of a republic founded in 1787 struggling to adapt its 232-year-old Constitution to 21st century communications technologies—that led the two of us to become involved.
The Supreme Court has long held that, when the government establishes or operates a public forum like a town hall, the First Amendment bars the government from excluding disfavored voices or silencing disfavored views. The court treats such “viewpoint discrimination” as among the worst kinds of First Amendment violations.
Social media platforms like Twitter have come to play the role of digital-age public fora. They’re now a principal site of critical political debate and discussion. When a government officeholder or office uses a Twitter account for official government announcements—as Trump certainly has done—and opens that account for comments by and interaction with the public—as this president obviously has done—then that official and the office the official occupies create a modern-day town hall. Trump’s @realDonaldTrump Twitter account, like his less frequently used @POTUS account, is the site of many, perhaps most, of Trump’s initial announcements of major executive actions and newsworthy shifts in policy. That, in turn, means that the First Amendment forbids him from engaging in viewpoint discrimination in operating that forum.
Trump’s government attorneys essentially acknowledge that the president engaged in viewpoint discrimination by blocking critics on Twitter for comments that he disliked, but they argue that a private company like Twitter can’t be the site of a public forum. That’s ridiculous. It’s true that, in general, Twitter is a private company and therefore is not constrained by the First Amendment, which applies only to government actors. Indeed, companies like Twitter have their own right as “authors” to speak as they see fit, as well as their own right as “editors” or “curators” to moderate speech on their platforms, both to avoid potential legal liability and, more broadly, to ensure that the discourse they host does not transgress certain standards. But this case isn’t about Twitter: It’s about what government officials like Trump do on Twitter. It’s not Twitter that created Trump’s account, used it for official purposes like announcing Cabinet nominees, diplomatic agreements, and troop withdrawals, and opened that account for others’ comments, even responding to them at times. It’s Donald J. Trump as president of the United States who did all of that; and the First Amendment applies squarely to him.
Think of it as the digital equivalent of a president renting a ballroom in a hotel owned privately rather than by the government or even the president himself—and then using the space to host not a private, invitation-only fundraiser for a campaign, but a public town hall in a space accommodating more people than the public rooms in the White House can. It’s a forum in which the president occupies the stage alone but promises a robust give-and-take with all within earshot about his administration’s policies. As a privately owned property, the hotel is an entity to which the First Amendment clearly doesn’t apply; but the First Amendment does prohibit a president from using that same hotel as a site of government-hosted public dialogue—and then expelling or silencing those speakers who voice disagreement with him or his views.
That’s what Trump believes he can get away with doing on Twitter, and he’s not the first world leader to do so. Authoritarians worldwide have stifled dissent on social media to cultivate a false impression that their people love them. That, in turn, warps public understandings of how those leaders are really viewed by their citizenry and aids the regimes’ efforts to quash democratic impulses.
It’s a model that Trump will be free to continue emulating ever more aggressively if his unconstitutional actions are allowed to stand. That’s why the trial court was right to find him in violation of the First Amendment, and it’s why leading First Amendment scholars from across the country have joined in arguing for the appeals court to reach the same result. We’ve urged the court to take this occasion to reaffirm vital principles of free speech and, in so doing, help to usher the First Amendment into the digital age. As the Supreme Court recently recognized, “While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the ‘vast democratic forums of the Internet’ in general … and social media in particular.” This case offers a chance to vindicate the First Amendment’s promise in these critical sites for public discourse.
Article originally published on POLITICO Magazine
Source: https://www.politico.com/magazine/story/2019/03/20/trump-twitter-first-amendment-225819
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The Article Was Written/Published By: Laurence H. Tribe
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