Shackled Speech: How President Trump's Treatment of the Press and the Citizen-Critic Undermines the Central Meaning of the First Amendment

Authors

• Terri R. Day, Barry University Dwayne O. Andreas School of Law
• Danielle Weatherby, University of Arkansas School of Law

First Page

311

Abstract

Just recently, the Southern District of New York in Knight First Amendment, Inc. v. Trump applied existing First Amendment doctrine to President Trump’s @realDonaldTrump Twitter account in considering whether he violated the First Amendment when he blocked citizens from accessing his tweets. After concluding that the interactive space associated with each of the President’s tweets is a designated public forum, the District Court held that President Trump’s act of blocking users who criticize him constituted viewpoint-based discrimination, which violates the First Amendment. This Article is one of the first of its kind to analyze the question considered by the Knight First Amendment court and to disentangle the thorny intersection between the government speech doctrine and the public forum doctrine.

Social media plays a significant role in how Americans engage in public discourse. Town hall meetings on matters of public concern have moved from the physical spaces of streets, parks, and the brick and mortar seats of government to the virtual world. At no time was the influence of social media more present than during the 2016 presidential primary. From his candidacy to the present, President Trump has used Twitter as his primary mode of communicating with the American people, foreign leaders, and the media. Today, the President’s Twitter account has a world-wide following. His tweets are notable both for their content, frequency, and tenor and also for the way he employs them as a weapon against his critics. Twitter has been an effective medium for President Trump to denigrate the press and dismiss criticism as fake news.

In the Trump era, criticism of the President personally or politically is labeled unpatriotic. Much like the English seditious libel laws which our forefathers eschewed, the truth of the assertion is immaterial. In fact, historically, the truer a criticism of the King was, the harsher the penalty. Although President Trump does not have the power to impose criminal sanctions on those who criticize him, his vitriolic response to criticism can affect the economic wellbeing of his critics. He occupies a world stage and wields his power to discredit the press and silence opposition viewpoints.

This Article argues that President Trump’s attempts to manipulate what he has dubbed as the “fake news” media and to silence the citizen-critic undermine the central meaning of the First Amendment and shackles political speech. In doing so, the Article explores the nuanced and often murky line between government speech, which falls outside the ambit of the First Amendment’s protective umbrella, and government censorship of private speech, which is the hallmark of a First Amendment offense.

Applying existing First Amendment principles and doctrines to social media platforms is still in its infancy. However, existing legal frameworks can and should be retrofitted to the Internet and social media. It is not difficult to recognize public comment spaces on government social media platforms as the virtual equivalent of public discussion in the town square. In fact, this past term, the Court opined that cyberspace and, in particular, social media is the virtual venue for public gathering, while a street or a park was the quintessential public forum of the past.

While the Knight First Amendment Institute case may have little impact on changing the lacuna in First Amendment law as applied to social media, this Article urges courts to adopt a public forum analysis to future cases in which a government actor virtually muzzles the citizen-critic on social media. Ultimately, it may be up to the electorate—not the courts—to exercise its power at the ballot box and end President Trump’s assault on the First Amendment once and for all.

Recommended Citation

Terri R. Day & Danielle Weatherby, Shackled Speech: How President Trump's Treatment of the Press and the Citizen-Critic Undermines the Central Meaning of the First Amendment, 23 Lewis & Clark L. Rev. 311 (2019).
Available at: https://lawcommons.lclark.edu/lclr/vol23/iss1/5