Twitter was an invaluable tool for candidate Donald Trump, allowing him to bypass traditional media channels and connect with a passionate base of followers. But as president, Trump's frequent use of Twitter is turning out to be a major liability for him.
President Trump's tweets earlier this week about his controversial "travel ban" executive order may end up undermining that executive order in court. To recap: Back in January, the president signed the original version, which banned travelers from seven Muslim-majority countries from entering the United States, but gave priority to refugee claims made by individuals whose religion "is a minority religion in the individual's country of nationality." This meant that the executive order effectively favored non-Muslim refugees over Muslim refugees, which many legal experts saw as a violation of the First Amendment. Freedom of religion specifically the Establishment Clause prohibits the government from favoring some religious groups over others.
On February 9, the Court of Appeals for the Ninth Circuit temporarily blocked the Trump administration from carrying out the order. The Trump administration decided to go back to the drawing board and revise it. Among other things, the administration removed the provision giving priority to refugees from minority religious groups in fact, it scrubbed the order of all references to religion. Nevertheless, the Court of Appeals for the Fourth Circuit ruled on May 25 that the revised executive order still violates the Establishment Clause. The Supreme Court will likely be deciding if the order is constitutional this fall.
As is his custom, President Trump took to Twitter to vent his frustration: "The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to S.C." This statement hurts the argument that the government will likely make in front of the Supreme Court that the revised executive order is sufficiently different in motive and operation from the original to pass constitutional muster.
It might seem strange that President Trump's social media habits could have an impact on the constitutionality of the travel ban. But that's because when it comes to the Establishment Clause, courts not only consider the letter of the law, but also the spirit of it. A law, or an executive order, cannot be constitutional if its primary purpose is to discriminate on the basis of religion. When judges are determining a law's primary purpose, they're not just limited to looking at the text. They can also look at the "historical context" of the law and the specific sequence of events leading to its passage. The Fourth Circuit considered President Trump's campaign tweets to be a vital part of the executive order's historical context, citing his campaign promises to ban Muslims from the United States as "creating a compelling case that [the revised executive order's] primary purpose is religious." By suggesting that the second order was merely a "watered down" version of the first, with the same purpose, President Trump's recent tweets are only adding to a record that may be used against the executive order when its fate is in the hands of the Supreme Court.
On less serious matters, President Trump is also facing a potential legal challenge from two users on Twitter that the president had recently blocked. These two, with the aid of the Knight First Amendment Institute, sent the White House a letter on June 6 stating that the president had violated their First Amendment rights when he blocked them, purportedly because they were critical of his policies. It seems bizarre that blocking someone on Twitter could potentially violate the Constitution, but this stems from President Trump's role as a government official and his use of Twitter to discuss domestic and foreign policy. One could argue, as the two angry tweeters might, that President Trump has turned his Twitter account into a limited public forum a place where people can express themselves. A similar thing happens when the government allows people to use its meeting spaces, or enables people to leave comments on an online forum. The government can place reasonable regulations on this sort of activity for example, by blocking users who make threats, or censoring profane comments but it can't discriminate against users based on their point of view.
It's unclear whether the challenge to the president's Twitter blocking practices will end up in court. But it's worth watching and interesting to note that Twitter has gotten President Trump embroiled in two different First Amendment legal matters.
Lata Nott is executive director of the First Amendment Center of the Newseum Institute. Contact her via email at lnott@newseum.org, or follow her on Twitter at @LataNott
Originally posted here:
INSIDE THE FIRST AMENDMENT: Trump's use of Twitter puts him in constitutional hot water - Meridian Star
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- How the TikTok ban could survive a court challenge - Platformer - April 24th, 2024 [April 24th, 2024]
- Senate Passes TikTok Ban Bill, Setting Up Legal Battle Between App and U.S. on First Amendment Issues - AOL - April 24th, 2024 [April 24th, 2024]
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- Get the Facts: How far does the First Amendment go? - WMTW Portland - April 24th, 2024 [April 24th, 2024]
- Say 'Yes' to the First Amendment Minding The Campus - Minding The Campus - April 24th, 2024 [April 24th, 2024]
- Civics lesson: First Amendment rights are broad, but there are limits - Tennessean - April 24th, 2024 [April 24th, 2024]
- SCOTUS won't review decision that ratchets up legal risk at protests - Reporters Committee for Freedom of the Press - April 24th, 2024 [April 24th, 2024]
- NPR Against the First Amendment - The New York Sun - April 24th, 2024 [April 24th, 2024]
- NPR boss once called the First Amendment a 'challenge' and 'reverence for the truth' a distraction - Fox News - April 24th, 2024 [April 24th, 2024]
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- Can Congress actually ban TikTok? - Vox.com - April 24th, 2024 [April 24th, 2024]
- New Stablecoin Bill Faces Criticism for Stifling Innovation and Breaching First Amendment Regulation Bitcoin News - Bitcoin.com News - April 24th, 2024 [April 24th, 2024]
- Elon Musk's Plan To Fund National Signature Campaign In Support Of First Amendment Met With Praise - Yahoo! Voices - April 24th, 2024 [April 24th, 2024]
- Trump: First Amendment protects efforts to overturn election - USA TODAY - March 29th, 2024 [March 29th, 2024]
- To Fight Ban Bill, TikTok's Best Hopes Lie in First Amendment Challenge - The Information - March 29th, 2024 [March 29th, 2024]
- Supreme Court must rely on the First Amendment, not its own precedent, when deciding government censorship case - Washington Examiner - March 29th, 2024 [March 29th, 2024]
- FIRST AMENDMENT VIOLATION?: Man removed from Cape council meeting files lawsuit - FOX 4 News Fort Myers WFTX - March 29th, 2024 [March 29th, 2024]
- Trump team's First Amendment argument is 'so weak' in Georgia election interference case - MSNBC - March 29th, 2024 [March 29th, 2024]
- Trump's team cites First Amendment in contesting charges in Georgia election interference case - The Associated Press - March 29th, 2024 [March 29th, 2024]
- A national TikTok ban and the First Amendment - National Constitution Center - March 29th, 2024 [March 29th, 2024]
- Trump attorney says Georgia election case hinges on First Amendment Deseret News - Deseret News - March 29th, 2024 [March 29th, 2024]
- Trump's team cites First Amendment in contesting charges in Georgia election interference case - The Atlanta Journal Constitution - March 29th, 2024 [March 29th, 2024]
- Courts Should Affirm First Amendment Rights of Youths in the Digital Age: The Case for a 21stCentury Tinker - Cato Institute - March 29th, 2024 [March 29th, 2024]
- Trump legal news brief: Prosecutors tell Judge McAfee that First Amendment doesn't apply to Trump's 'criminal intentions' - Yahoo! Voices - March 29th, 2024 [March 29th, 2024]
- Trump attorney tries to have Georgia case dismissed on First Amendment grounds - MSNBC - March 29th, 2024 [March 29th, 2024]
- Trump attorney, prosecutors spar over move to have Georgia case dismissed on First Amendment grounds - 11Alive.com WXIA - March 29th, 2024 [March 29th, 2024]
- Donald Trump Georgia court motions hearing today live stream - 11Alive.com WXIA - March 29th, 2024 [March 29th, 2024]
- Trump's team cites First Amendment in contesting charges in Georgia election interference case - Bowling Green Daily News - March 29th, 2024 [March 29th, 2024]
- First Amendment protects Trump from Fani Williss election interference charges, attorney argues - Washington Examiner - March 29th, 2024 [March 29th, 2024]
- Judicial Rulemaking and Lucidity: Justice Barrett's First Amendment Opinion in Lindke v. Freed - American Enterprise Institute - March 29th, 2024 [March 29th, 2024]
- First Amendment protects Trump from Fani Willis's election interference charges, attorney argues - Colorado Springs Gazette - March 29th, 2024 [March 29th, 2024]
- Trump's team cites First Amendment in contesting election interference charges - Southernminn.com - March 29th, 2024 [March 29th, 2024]
- Trump's team cites First Amendment in contesting charges in Georgia election interference case - messenger-inquirer - March 29th, 2024 [March 29th, 2024]
- Lawyers for the State argue against Trump First Amendment challenge in Georgia case - 11Alive.com WXIA - March 29th, 2024 [March 29th, 2024]
- OPINION: The possible TikTok ban is an infringement on our First Amendment rights - The Suffolk Journal - March 29th, 2024 [March 29th, 2024]
- Trump's team cites First Amendment in contesting charges in Georgia election interference case - Times Daily - March 29th, 2024 [March 29th, 2024]
- An iPhone, YouTube & the First Amendment: Man in St Louis tests boundaries of constitution through videos - First Alert 4 - March 29th, 2024 [March 29th, 2024]
- Lawyer argues Georgia election RICO case against Trump be dismissed over First Amendment - 11Alive.com WXIA - March 29th, 2024 [March 29th, 2024]
- Abridging, Not Coercing, Is The First Amendment's Yardstick for Speech Violations - Reason - March 29th, 2024 [March 29th, 2024]
- Judge hears Trump's First Amendment challenge to Georgia charges: Watch live - Yahoo Singapore News - March 29th, 2024 [March 29th, 2024]
- Trump's attorney says election inference case should be thrown out over 1st Amendment protections - Yahoo! Voices - March 29th, 2024 [March 29th, 2024]
- Judge hears Trump's First Amendment challenge to Georgia charges: Watch live - AOL - March 29th, 2024 [March 29th, 2024]
- Judge sets new hearing date in 2020 Georgia election interference case - 11Alive.com WXIA - March 29th, 2024 [March 29th, 2024]
- Biden Wants To Avoid a First Amendment Showdown Over WikiLeaks - Reason - March 22nd, 2024 [March 22nd, 2024]
- Justice Ketanji Brown Jackson raises eyebrows with comment that First Amendment 'hamstrings' government - Fox News - March 22nd, 2024 [March 22nd, 2024]
- West Texas drag show becomes a First Amendment battleground - The Texas Tribune - March 22nd, 2024 [March 22nd, 2024]
- Requiring ugly images of smoking's harm on cigarettes won't breach First Amendment, court says - The Associated Press - March 22nd, 2024 [March 22nd, 2024]
- The First Amendment, the Fourth Amendment, and Substantial Encouragement - Reason - March 22nd, 2024 [March 22nd, 2024]
- News/Media Alliance Joins Brief Defending First Amendment Editorial Rights of Documentarians - News/Media Alliance - March 22nd, 2024 [March 22nd, 2024]
- The State of the First Amendment: Free Speech - University of Colorado Boulder - March 22nd, 2024 [March 22nd, 2024]
- Justices Seem Likely to Side With N.R.A. in First Amendment Dispute - The New York Times - March 22nd, 2024 [March 22nd, 2024]
- Supreme Court Justice Kavanaugh loses patience with the judiciarys far right - Vox.com - March 22nd, 2024 [March 22nd, 2024]
- Justice Jackson ripped for worrying about the First Amendment 'hamstringing' government: 'Literally the point' - Fox News - March 22nd, 2024 [March 22nd, 2024]
- Analysis: SCOTUS Oral Arguments Bode Well For NRA First Amendment Claim [Member Exclusive] - The Reload - March 22nd, 2024 [March 22nd, 2024]
- Supreme Court to hear First Amendment challenge to New York's financial 'blacklisting' of NRA - Fox News - March 22nd, 2024 [March 22nd, 2024]
- NRA Goes To The Supreme Court Today In First Amendment CaseHere's What To Know - Forbes - March 22nd, 2024 [March 22nd, 2024]
- Supreme Court to hear case of former Castle Hills councilwoman who claims First Amendment rights were violated - KSAT San Antonio - March 22nd, 2024 [March 22nd, 2024]
- Supreme Court to hear arguments in key First Amendment case challenging Biden admin teamwork with Big Tech - Fox News - March 22nd, 2024 [March 22nd, 2024]
- "Black Lives Mat[t]er" + "Any Life" Drawing "Not Protected by the First Amendment" in First Grade - Reason - March 22nd, 2024 [March 22nd, 2024]
- Requiring ugly images of smoking's harm on cigarettes won't breach First Amendment, court says - KXLY Spokane - March 22nd, 2024 [March 22nd, 2024]
- Supreme Court hears free speech case that united the NRA and the ACLU - The Washington Post - March 22nd, 2024 [March 22nd, 2024]
- Supreme Court Wary of States' Bid to Limit Federal Contact With Social Media Companies - The New York Times - March 22nd, 2024 [March 22nd, 2024]
- Opinion: A First Amendment Fizzle at the U.S. Supreme Court - The Atlanta Journal Constitution - March 22nd, 2024 [March 22nd, 2024]
- The First Amendment is under attack in Americas Oceania - Washington Examiner - March 22nd, 2024 [March 22nd, 2024]
- Education Institutions Grapple With Overlap of First Amendment and Anti-Discrimination Laws - JD Supra - March 22nd, 2024 [March 22nd, 2024]
- Requiring ugly images of smoking's harm on cigarettes won't breach First Amendment, court says - The Caledonian-Record - March 22nd, 2024 [March 22nd, 2024]
- Note to Justice Jackson: First Amendment Should Hamstring Biden - Daily Signal - March 22nd, 2024 [March 22nd, 2024]
- Requiring ugly images of smoking's harm on cigarettes won't breach First Amendment, court says - KEYT - March 22nd, 2024 [March 22nd, 2024]
- The First Amendment Supreme Court case right wingers are crazy for - The Independent - March 22nd, 2024 [March 22nd, 2024]
- Ketanji Brown Jackson concerned First Amendment is hamstringing government from censorship - Washington Examiner - March 22nd, 2024 [March 22nd, 2024]
- Justice Jackson: First Amendment "Hamstringing" Federal Response To "Threatening Circumstances, From The ... - RealClearPolitics - March 22nd, 2024 [March 22nd, 2024]
- Opinion: Sen. Chuck Grassley should stand up for the First Amendment and support the PRESS Act - The Gazette - March 18th, 2024 [March 18th, 2024]
- The Supreme Court must protect the First Amendment in Murthy v. Missouri - Washington Examiner - March 18th, 2024 [March 18th, 2024]
- A Hillsborough judge invokes the First Amendment in a case related to a 2022 election campaign - WMNF - March 18th, 2024 [March 18th, 2024]
- John Stockton's lawyer claims first amendment violation as basis for COVID-19 lawsuit - KXLY Spokane - March 18th, 2024 [March 18th, 2024]
- Scientology Scores A First Amendment Win Over Leah Remini, But Harassment Claims Against Church Still Stand, Judge Rules - Deadline - March 18th, 2024 [March 18th, 2024]
- Supreme Court to hear First Amendment cases, weigh in on Texas immigration law - MSN - March 18th, 2024 [March 18th, 2024]
- 7 Expert Takeaways As the Supreme Court Considers Government Influence on Content Moderation - Just Security - March 18th, 2024 [March 18th, 2024]
- Conflict between First Amendment and discrimination on Broadway | Strictly Legal - The Cincinnati Enquirer - March 18th, 2024 [March 18th, 2024]