Presidential Tweeting: Private or Government Speech?

This post is written by Associate Editor Alex Kubala. Opinions and views expressed herein are those of the writer alone.

 

One of the many duties of the President of the United States is to communicate with the American people. Whether through in-person meetings, televised speeches, or “fireside chats,” Presidents have a lot of options when it comes to picking a mode of communication, which now includes social media.[1] Although former President Barack Obama also had a twitter account while in office, President Donald Trump is perhaps most famous for using twitter as a favored mode of communication, both during his campaign and throughout his presidency. There are three main twitter accounts associated with this President, which include his personal account, “@RealDonaldTrump,” a presidential account “@POTUS,” and a White House account “@WhiteHouse.”

This new age of technological communication presents interesting First Amendment questions with respect to the President’s habitual social media usage.[2] Though there are multiple twitter accounts, does the President’s personal twitter account constitute private speech made by a private citizen or as government speech from the highest public official? People use twitter for many different reasons such as venting frustrations, sharing details of their day, and generally communicating a variety of ideas, and the President does not appear to be immune to any of these. However, if the President writes a tweet that intentionally antagonizes another foreign leader or discusses foreign affairs, does that constitute government speech?[3] Does the content of the tweet matter in deciding if this is government speech, or are all of his tweets in his personal account since his inauguration considered a representation of the U.S. Government?

In July of this year, President Trump tweeted from his personal account, “North Korea has just launched another missile. Does this guy have anything better to do with his life? Hard to believe that South Korea and Japan will put up with this much longer. Perhaps China will put a heavy move on North Korea and end this nonsense once and for all!”[4] President Trump has also tweeted several insults directed at North Korea’s Kim Jong Un.[5] Does it matter which twitter account posts these messages in determining if this is government speech?

It is assumed that a President will strategically communicate with foreign leaders, mostly behind closed doors, but this country has never had a President so candidly share his opinions on such a readily available communication platform.[6] When one becomes President of the United States, that person is the President twenty-four hours a day, seven days a week until that person’s term ends, or he or she is impeached, or resigns. Thus, when Donald Trump tweets from his personal account, he does not stop being the President simply because he wants to personally vent on his own twitter. Also, it is hard to make the argument that his tweets involve some sort of “right to privacy” since he is sharing his opinions in a public forum.[7] Thus, should his personal account be considered functionally the same as the White House twitter account? It is hard to imagine the White House tweeting many of the things President Trump tweets from his own account because one assumes government speech takes a more professional tone.

Government speech is treated differently than private speech when examined by a court.[8] Thus, how these tweets are characterized as either private or government speech would determine how they were examined.[9] The First Amendment implications of a President’s antagonizing and potentially dangerous tweets is uncharted constitutional territory. This author is not suggesting that it is necessarily a wise policy to monitor Presidential speech as that could interfere with the duties of the office. But, could it be possible that a truly outrageous Presidential tweet should be removed for endangering public safety? Or is the President just held politically accountable?[10] These are questions with no clear answers.

 

 

[1] Scott Horsley, Episode 2: White House Press Corps, Civics 101 Podcast (Jan 25, 2017).

[2] See U.S. Const. amend. I.

[3] See Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S.Ct. 2239 (2015).

[4] Donald Trump (@RealDonaldTrump), Twitter (Jul. 3, 2017, 10:19 PM, 10:24 PM); See Saba Hamedy and Joyce Tseng, All the Times President Trump has Insulted North Korea, CNN (Dec. 1, 2017, 10:25 AM). http://www.cnn.com/2017/09/22/politics/donald-trump-north-korea-insults-timeline/index.html [hearinafter Hamedy].

[5] See Hamedy.

[6] See U.S. Const. art. II.

[7] See generally Rene Reyes, Do Even Presidents Have Private Lives? The Case for Executive Privacy as a Right Independent of Executive Privilege, 17 Kan. J.L. & Pub. Pol’y 477 (2008).

[8] Pleasant Grove City v. Summum, 555 U.S. 460, 467-68 (2009).

[9] Id. 467-69.

[10] See id. at 468.

Author: nkylrev

The Northern Kentucky Law Review, founded in 1973, is an independent journal, edited and published entirely by the students of NKU Chase College of Law.

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