Trump Twitter Use Violates First Amendment, Argue Scholars in Brief by Georgetown Law’s ICAP

November 6, 2017

Erwin Chemerinsky, Lyrissa Lidsky, Larry Tribe and other leading First Amendment scholars join brief in suit against President Trump

WASHINGTON, D.C. – President Trump’s use of Twitter violates the First Amendment, Georgetown Law’s Institute for Constitutional Advocacy and Protection (ICAP) argued in an amicus brief that it filed today on behalf of leading First Amendment scholars such as Erwin Chemerinsky, Lyrissa Lidsky, and Larry Tribe. The brief supports a lawsuit brought by Columbia’s Knight Institute challenging Trump’s practice of blocking critics from his @realDonaldTrump Twitter feed.

ICAP’s brief argues that, by fostering a dialogue on @realDonaldTrump that includes official statements of government policy, responses by other Twitter users, and replies by the president to those responses, the president has created a digital-age public forum. And, in a public forum, well established legal precedent makes clear that viewpoint discrimination – such as blocking critics while allowing supporters to express their views – violates the First Amendment.

“This case is about applying established First Amendment principles to emerging technologies,” said ICAP’s Executive Director and Visiting Professor of Law Joshua Geltzer. “When the government creates a space for public discussion and debate, whether in a physical or virtual setting, it creates a public forum. The Constitution then bars the government from silencing those who question it and giving voice only to those who praise it.”

ICAP’s brief highlights the risk to political dialogue should viewpoint discrimination by the government be permitted on social media sites, which have become crucial settings for democratic debate. The brief warns that allowing the President “to continue distorting [his] predominant means of dialogue with the American public into an unchallenged podium in which only applause greets his” commentary would run counter to “the Supreme Court’s teachings about why viewpoint discrimination is so corrosive to democratic functioning.”

The brief further explains that Trump’s “practices are a familiar playbook for authoritarian regimes. For them, cultivating a false sense that political leaders are adored by the public is critical to warping the public’s understanding of how those leaders are really viewed by the public and, in turn, to quashing democratic impulses.”

The brief concludes by asking the court to “prevent modern venues like Twitter from being exploited by government officials to silence critics and bask in artificial adulation.”

ICAP’s brief was prepared by Executive Director Joshua Geltzer, Associate from Practice Amy Marshak, and Institute Fellow Daniel Rice. The lawsuit, Knight First Amendment Institute at Columbia University v. Trump, No. 1:17-cv-05205-NRB, is pending in the Southern District of New York before Judge Naomi Buchwald. The complaint and other materials associated with the case can be found on the Knight Institute’s website.