Trump vs. Twitter: An Interesting Legal Theory

Anyone remember back in 2018 when Trump got sued for blocking critics on Twitter?

The judge’s ruling against Trump was based on a key point. I’ll let Judge Buchwald explain.

We hold that portions of the @realDonaldTrump account — the “interactive space” where Twitter users may directly engage with the content of the President’s tweets — are properly analyzed under the “public forum” doctrines set forth by the Supreme Court, that such space is a designated public forum, and that the blocking of the plaintiffs based on their political speech constitutes viewpoint discrimination that violates the First Amendment.

This ruling was specific to @realDonaldTrump account, not Twitter generally, contrary to several confused snooze reports on the case. But it means Trump’s account is something special, subject to rules that don’t necessarily apply to other accounts.

Lately, Twitter has been blocking views of some of Trump’s tweets, based on content: Trump’s political speech.

If Trump blocking folks “constitutes viewpoint discrimination that violates the First Amendment,” what about Twitter doing just that on that special “designated public forum”?

I’d tweet this at @realDonaldTrump, but Twitter is permanently blocking me because I won’t delete a tweet they won’t let anyone see anyway (a link to a We The People petition; go figure).

Any real attorneys reading this who’d like to weigh in?

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This should make the prez election results interesting.

Iran has issued a warrant for the arrest of Trump and 35 others, for the killing of Soleimani, Iran’s ex-bossman for terror ops.

In the old days, when I still had hope for America, this would just be good for a chuckle. But we’ve entered the Crazocracy, which makes Heinlein’s “Crazy Years” look like short, well-behaved house party. But I think that education, reasoning ability, impulse control, schizophrenia, et al have irreversibly devolved to the point that…

Should Trump lose to whomever Dementia Boy Gropin’ Joe’s sock puppet handler turns out to be, there is a very strong possibility that the inbred idiots who believe that saying bad things about Trump makes them true, will extradite Trump to Iran.

They won’t consider the fact that Soleimani was a combatant conducting military operations. They won’t consider the impact on future foreign policy, or peacekeeping operations. They won’t consider the fact that the Iranian government hates America, not just Trump, and this won’t pacify them. They won’t consider the fact that they’ll establish the precedent that they in turn can be extradited for hurting some enemy country’s feelz. All that will count is Orange Man bad, get him!.

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Troll: Grandmaster Level

Folks are going nuts over Trump’s tweet yesterday:

Yeah, it’s basically the Star Fleet seal. I see screams about copyright infringement, royalties, law suits…

Pretty much everything but the fact that he tweeted this on his personal account, not the official POTUS account. There’s nothing about it anywhere on the White House web site.

Nor is the seal on the actual Space Force web site. No seal, no press release, no news links. Nothing. Nada. Zip.

Trump just trolled the world. Again.

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Sunnuvagun, it looks like there was a conspiracy.

OK, this is just based on Breitbart reporting, so take it with a grain of salt. But they do seem to be linking to plenty of supporting documents.

• Vindman wrote up talking points for the Ukraine call, including the “incriminating” quid pro quo stuff.
• Trump didn’t use the quid pro quo point in the call.
• Vindman then added the quid pro quo stuff to the phone call memo, as if Trump had used it.
• Vindman admitted to telling two people about the allegedly incriminating call.
• Schiff-for-brains stopped questions about who Vindman told because that would out the “whistleblower.”
• We already know that the “whistleblower” coordinated with Schiff’s office (possibly Schiff personally), and filed his complaint using brand new rules that allow hearsay.
• Schiff opens an impeachment inquiry based on the fabricated evidence.

That sounds a lot like a concerted plan to fabricate and plant evidence to impeach the sitting President.

They should have just rolled with the impeachable offense Trump brags on. If the Republicans had balls, they could have Schiff‘s on a platter, if this is accurate.

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You’re over-thinking it

Folks are on pins and needles, waiting with bated breath to see what Trump’s going to do on gun control. Here’s a typical piece.

Trump walks tightrope on gun control
President Trump is stringing along the debate over gun control by keeping alive discussions on expanded background checks, but just barely.
[…]
A senior Senate Republican aide said Trump appears to be dragging out the debate to keep his options open.

“He doesn’t want to get into a fight with Second Amendment groups, but he doesn’t want to kill it either in case he might need it later on,” the aide said of a proposal to expand background checks to all commercial gun sales.

Do they really think the man who bypassed Congress to impose more gun control — by fiat — than the Dems or Reps managed in twenty years, pissing off every gun owner who was paying attention, is worried about potentially alienating 2A voters?

No so fast there about that wonderful “background check app”

Sean D. Sorrentino thinks the supposed smartphone app for running background checks is a gun owner win.

Now the gut reaction of most gun owners who are politically active will be “SHALL NOT BE INFRINGED!” But before you jump up on that table and do your best Patrick Henry impression, let me explain why this is a good idea.

Let me explain why Mr. Sorrentino actually has zero idea if this is a good thing.

Explain the Difference

So we have the crowd claiming that if “we” don’t vote for Trump again, we’ll be saddled with a Democrat who will destroy Second Amendment-protected rights with bans, universal preemptively-prove-your-innocence background checks, raising RKBA age limits, expanding the NICS database, ex parte confiscation orders, and bump stocks bans.

I want those people to explain to me how that’s worse than the guy who supports universal preemptively-prove-your-innocence background checks, raising RKBA age limits, ex parte confiscation orders; who did sign a bill expanding the NICS database; who did ban bump-fire stocks by executive fiat; and supports a ban of semi-automatic firearms.

This does not bode well for anyone

Judge rules Trump can’t block people from Twitter account
“This case requires us to consider whether a public official may, consistent with the First Amendment, ‘block’ a person from his Twitter account in response to the political views that person has expressed, and whether the analysis differs because that public official is the President of the United States,” the judge wrote in her ruling.

“The answer to both questions is no.”

I’m looking for the complete decision. If that story accurately portrays it, the ramifications are terrible.

First, the judge appears to turn a right to speak into a right that everyone listen. Not just on Twitter. Got troll commenting on your blog or forum? You may not be able to moderate them under this legal theory.

Second, it’s a lot worse than that. Remember CDA Section 230? That’s the one that gave web site owners some protection from liability for posts or comments made by other people.

Meet FOSTA, the Fight Online Sex Trafficking Act”Fight Online Sex Trafficking Act.” It strips away many of those 230 protections, making web site owners responsible for things posted by users. Big outfits like Facebook like it because they can afford to comply, but it weeds out smaller competitors who can’t afford a 24/7 team of moderators and automatic filters.

So now I could be held responsible for libelous comments on my blog…

…and I may not be allowed to block offenders. I may not be able to block spammers and trolls.

Imagine getting busted for trafficking because a spammer posted an ad for cheap Chinese Fentanyl on your blog.

Imagine getting sued for defamation because some asshat posted lies about someone else.

With 230 gutted, I have to proactively block that stuff to cover my ass. By it sounds like this judge says I can’t proactively block it.

The devil is in the details; I need to see that decision, not just some ABC reporter’s take.

ETA: Still no complete decision, but some more detail that seems to confirm my fears.

The judge agreed but said that even considering the president’s First Amendment rights, preventing users from interacting directly with him on Twitter represented a violation of a “real, albeit narrow, slice of speech.”

You can’t stop users: “preventing users from interacting directly”.

ETA 2: I have the order (PDF, 75pp). It’s going to take a while to go through it.

ETA 3: This is a mess.

It’s not quite as bad as I feared, in one respect. The decision is limited to the @realDonaldTrump account, and not Twitter itself as a public forum.

@realDonaldTrump is legally a public forum because of something of which I was unaware: Trump uses government resources in the form of the White House Communications Director to manage the account and do some tweets. In Trump’s place, I would have kept it to myself as a personal venting venue. He didn’t. That eliminates my worst fears.

This part still bugs me:

We hold that portions of the @realDonaldTrump account — the “interactive space” where Twitter users may directly engage with the content of the President’s tweets — are properly analyzed under the “public forum” doctrines set forth by the Supreme Court, that such space is a designated public forum, and that the blocking of the plaintiffs based on their political speech constitutes viewpoint discrimination that violates the First Amendment.

That’s the troubling part. The “injury” of the plaintiffs that the judges found to real isn’t that they can’t read Trump’s tweets. They can by using another account, or simply by being logged out (which how I see the occasional tweet). The “injury” isn’t that they can’t tweet themselves, which they can.

The injury is that they can’t post reply tweets directly to Trump’s timeline. They can’t use Trump’s account to voice their opinions.

Imagine if you will: A county commissioner is giving an official statement on television. Joe Citizen disagrees with something said, and demands the mike.

And basically the TV station will have to let him rant, even if it runs past the scheduled timeslot. The station can’t merely offer Joe his own airtime the next day; he’s entitled to comments during the commissioner’s scheduled time, because it would an “injury” not to exercise his free speech as the commissioner speaks, to reach the same people who tuned in to hear what the commissioner had to say whether they like it or not.

Everyone is entitled to the mike.

You can’t “block” them — require them to rant on the own show/Twitter feed/blog — so long as they aren’t slandering, spouting obscenties, or indulging in other “unprotected” speech. Joe — and Mike, Mitzy, Jorge, Abdul, and everyone else — can commandeer the microphone to rant about voting rights for voles, while the commissioner wants to explain the proposed bond issue.

Free speech is great. But this is a new right to be heard. By everyone, not just the public official.

Time for a new game name

Six Degrees of Kevin Bacon is so passé. It should be renamed…

Mueller Investigation.

1. Eight years ago, Trump was a shareholder in Affliction Entertainment.

2. Affliction Entertainment signed MMA fighter Emelianenko.

3. Emelianenko is from Russia.

4. [Redacted] emigrated from Russia as a small child.

5. I have worked with [Redacted].

I’m expecting an FBI visit at any time concerning my ties to Trump.

Wait… Stormy Daniels is Russian?

FBI raids office of Trump’s longtime attorney Michael Cohen, report says
Federal investigators seized a number of records, including documents connected to payments made to adult film star Stormy Daniels, the Times reported.

Cohen’s lawyer told the Times that special counsel Robert Mueller made a referral allowing federal prosecutors to obtain a search warrant.

Huh. Wikipedia thinks she’s from Louisiana. Guess not. Somebody better put an immigration detainer on her before she skips town to Moscow.

If I didn’t understand this crap all too frickin’ well, I’d be kinda confused right now.