Democracy Dies in Darkness

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Why a federal judge is offering Twitter advice to Trump

March 8, 2018 at 5:03 PM

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President Trump attacked Sen. Kirsten Gillibrand (D-N.Y.) on Twitter Dec. 12. This isn't the first time he's targeted politicians on the social media platform. (Elyse Samuels/The Washington Post)

President Trump is famous for Twitter barbs, but he can be a bit sensitive to the sharp comments of others — perhaps too sensitive, a federal judge suggested on Thursday.

Justice Department lawyers were in court in Manhattan to defend Trump’s ability to block select Twitter users from viewing his messages. The Knight First Amendment Institute at Columbia University is suing Trump on behalf of seven people he has blocked, contending the president is not merely acting thin-skinned but also flouting the Constitution.

Having heard the arguments, Judge Naomi Reice Buchwald offered Trump some advice, according to the Associated Press: Just mute people, instead.

I'll let Twitter explain the difference between muting and blocking:

Block is a feature that helps you control how you interact with other accounts on Twitter. This feature helps users in restricting specific accounts from contacting them, seeing their tweets, and following them.

Mute is a feature that allows you to remove an account’s tweets from your timeline without unfollowing or blocking that account. Muted accounts will not know that you’ve muted them, and you can unmute them at any time.

In other words, if Trump does not want to see a particular Twitter user’s unflattering remarks about him, he can mute the user and make those unflattering remarks disappear from his Twitter experience. He need not take the additional step of blocking the user from seeing his messages.

Buchwald presented muting as a possible compromise solution that could settle the suit without a ruling on the constitutionality of presidential Twitter blocking. I asked the Knight Institute’s executive director, Jameel Jaffer, if such a resolution would be acceptable.

“We’ve said from the outset that muting would be a less restrictive alternative than blocking, so we were pleased the judge raised this possibility,” Jaffer said. “But given that the government has argued that the president’s Twitter account isn't subject to the First Amendment at all ... it would be a pretty remarkable about-face if the government were to propose a settlement at this point. We’d certainly be very open to hearing from them, though.”

The Justice Department declined to comment.

The Knight Institute’s argument is, as Jaffer wrote in The Washington Post on Tuesday, that the president “has used Twitter to introduce new policies, announce nominations to key government posts and inveigh against convenient political scapegoats, including immigrants and the media. Over time, his account has become an important source of news and information about the administration — and about the president’s disposition as well.”

To deny some Twitter users the ability to view and reply to these tweets is to deny their First Amendment right, the Knight Institute contends. The seven people represented by the Knight Institute include a comedian, a police officer, a surgical resident and a political organizer.

In court documents, the Justice Department has countered that @realDonaldTrump is a personal account with which the president can do as he pleases:

It cannot be the case that any personal medium of communication created or maintained by public officials in their personal capacity is subject to an all-or-nothing state action analysis when that person later becomes an officer of the state. There can be no dispute that the president established the @realDonaldTrump account as a private citizen and continues to use the account for personal and political uses, distinct from any governmental acts that plaintiffs ascribe to it.

A settlement in which Trump agrees to start muting, rather than blocking, would be the most amicable resolution to this case. But it would also deprive the rest of us of an answer to a very interesting legal question.

Callum Borchers covered the intersection of politics and media. He left The Washington Post in June 2018. He joined The Post in 2015 from the Boston Globe, where his beats included national politics, technology and the business of sports. He is a former editor of Citizen's News in Naugatuck, Conn.

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