Deleting Tweets and Blocking Followers: Exercising Presidential Speech on Twitter

Since announcing his campaign for President, Donald Trump and his unconventional use of Twitter have sparked much discourse and debate. Trump’s use of Twitter marks a new chapter in the social media revolution, where social media is no longer just an efficient way for individuals to communicate with one another but a platform where real-time policy decisions are announced and diplomatic relationships can change in a matter of 140 characters or less. The President’s tweets about London Mayor Sadiq Khan and the London Bridge terrorist attack in June, for example, prompted the indefinite deferral of President Trump’s state visit to England.[i] Though Trump’s tweets are highly contentious and have worsened the diplomatic relations of the U.S., it is within his constitutional right as a citizen to tweet. However, Trump has used Twitter in other ways that seem less of a right and more like an abuse of one. Are Trump’s practices of tweet deletion and blocking of other users based on their viewpoints legal?

Since his inauguration, Trump has continued to use his personal Twitter account @realDonaldTrump to tweet commentary and announcements of official action as President for the American public to see. As with Nixon’s white house tapes, Trump’s practice of deleting tweets has raised the question of what proper record preservation looks like in the current age of social media and whether the unauthorized deletion of Trump’s tweets constitute a violation of the Presidential Records Act. With much of Trump’s communication to the public occurring over social media, a deleted tweet represents a loss in the historical record. While the Presidential Records Act does not explicitly list social media posts as a type of “documentary material” that constitutes a presidential record, current U.S. Code names “correspondence” and “electronic recordations” as presidential records when created “in the course of conducting activities which relate to or have an effect upon the carrying out of the…duties of the President.”[ii] It can be inferred, then, that electronic correspondence such as Twitter posts directed at the American public count as presidential records. Furthermore, in 2015, the National Archives and Records Administration published a white paper on the best practices for the capture of social media, in which the agency notes that social media communications, including those sent from a Twitter account, must be managed as federal records.[iii] Though the white paper was directed at federal agencies below the White House, why should these guidelines not apply to the Executive Office of the President as well? Additionally, in a letter to Senators Claire McCaskill (D-MO) and Tom Carper (D-DE) this March, Archivist of the United States David Ferriero stated that NARA has alerted the White House that tweets made by the President on both his personal and official Twitter accounts must be preserved under the Presidential Records Act.[iv] Despite this, Trump continues to delete tweets and may claim difference in personal interpretation of the law as grounds for doing so. The case Armstrong v. Executive Office of the President (1996), however, established that it is not the role of the President to designate what constitutes a presidential record: “The PRA does not bestow on the President the power to assert sweeping authority over whatever materials he chooses to designate as presidential records without any possibility of judicial review.”[v] Therefore, it follows that presidential tweets constitute presidential records as established by the Archivist of the United States and Trump must follow the laws regarding their preservation accordingly.

After defining what constitutes a presidential record, the Presidential Records Act then prescribes the correct method for the deletion of such records. First, the President may not destroy any non-personal records until he or she has obtained the written views of the Archivist of the United States that the records in question “no longer have administrative, historical, or evidentiary value”.[vi] Once the President has obtained the approval of the Archivist, he or she must submit copies of the disposal schedule to the appropriate Congressional committees at least 60 days in advance of the proposed disposal date.[vii] Considering that Trump habitually deletes tweets within days, hours, and even minutes of posting with no consultation of the Archivist, it is clear that this behavior is in violation of the law.[viii] In fact, watchdog group Citizens for Responsibility and Ethics in Washington and the National Security Archive have recently filed a lawsuit against President Trump and the Executive Office of the President on these grounds. Citizens for Responsibility and Ethics in Washington et al v. Trump et al, a case pending before the United States District Court for the District of Columbia, aims to prove that Trump’s actions are contrary to law and further violate the President’s constitutional obligation to take care that the law be faithfully executed.[ix]

The question of the legality of President Trump’s Twitter activity use does not stop at the deletion of his tweets. The Knight First Amendment Institute at Columbia University recently filed a lawsuit against President Trump alleging that Trump’s practice of blocking his dissenters on Twitter is a violation of their First Amendment rights. Recently decided United States Supreme Court case Packingham v. North Carolina (2017) determined that social media platforms, such as Twitter, provide “perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard”; such platforms have transformed civic engagement with public forums such as Twitter now serving as digital town halls.[x] President Trump’s Twitter account has become an important source of information for the general public, serving as a channel of communication with the American people about the administration and a platform where Trump sometimes makes official announcements before they are publicly announced. Former White House Press Secretary Sean Spicer even stated at a press conference that @realDonaldTrump tweets should be taken as “official statements by the President of the United States”.[xi] By blocking select individuals from his @realDonaldTrump account, Trump is barring these individuals from viewing and replying to his tweets, as well as from viewing and participating in the related comment threads. The ideologically based blocking of these individuals infringes on their First Amendment rights, as argued by the Columbia Knight First Amendment Institute in Knight First Amendment Institute v. Trump. According to the Plaintiffs, Trump’s blocking of individuals on Twitter is an unconstitutional restriction on their participation in a designated public forum and on their right to access statements that are otherwise available to the public at large. Furthermore, Trump’s practice of viewpoint-based blocking also infringes upon the First Amendment rights of all other users following @realDonaldTrump, as it prevents other users from hearing the speech that blocked users would have engaged in had they not been blocked.[xii]

Trump’s practice of deleting tweets and blocking dissenting followers violates the law. With the President’s “personal” Twitter @realDonaldTrump serving as an official presidential channel of communication, these tweets must be accessible to all and a lasting record must be maintained. While Citizens for Responsibility and Ethics in Washington et al v. Trump et al and Knight First Amendment Institute v. Trump aim to set legal precedent regarding the proper use of social media by the President, Trump’s all-star team of attorneys will undoubtedly attempt to have the lawsuit dismissed or settle the issue out of court. Also aiming to address this issue, Representative Mike Quigley (D-IL) introduced the Communications Over Various Feeds Electronically For Engagement Act of 2017, affectionately known as the COVFEFE Act after Trump’s famous Twitter blunder, which seeks to resolve the question of whether tweets count as Presidential records by explicitly adding the term ‘social media’ as a form of documentary material covered by the Presidential Records Act.[xiii] The bill has yet to progress in the House, and it will take an airtight lawsuit or heavily backed bill for there to be any legal language set in regards to the President’s social media use.

[i] Tolhurst, Alain. “Sadiq Khan Calls for Donald Trump's State Visit to Be Cancelled amid Terror Row.” The Sun, The Sun, 6 June 2017, www.thesun.co.uk/news/3734405/donald-trump-is-wrong-about-so-many-things-says-sadiq-khan-as-he-calls-for-his-state-visit-to-be-cancelled-amid-row-over-his-london-bridge-attack-response/.

[ii] Presidential Records Act of 1978, 44 U.S.C. § 2201.

[iii] National Records and Archives Administration. White Paper on: Best Practices for the Capture of Social Media Records. 2013.

[iv] Ferriero, David. “Archives.gov.” Received by Senator Claire McCaskill, Senator Tom Carper, Archives.gov, 30 Mar. 2017, www.archives.gov/files/press/press-releases/aotus-to-sens-mccaskill-carper.pdf.

[v] United States Court of Appeals, District of Columbia Circuit. Armstrong v. Executive Office of the President. 2 Aug. 1996.

[vi]Presidential Records Act of 1978, 44 U.S.C. § 2203.

[vii] Ibid.

[viii] “Politwoops.” ProPublica, 21 Dec. 2016, projects.propublica.org/politwoops/user/POTUS.

[ix] United States District Court for the District of Columbia. Citizens for Responsibility and Ethics in Washington et al v. Trump et al. 22 June 2017.

[x] United States Supreme Court. Packingham v. North Carolina. 19 June 2017.

[xi] Landers, Elizabeth. “White House: Trump's Tweets Are 'Official Statements'.” CNN, Cable News Network, 6 June 2017, www.cnn.com/2017/06/06/politics/trump-tweets-official-statements/index.html.

[xii] United States District Court for the Southern District of New York. Knight First Amendment Institute v. Trump. 11 July 2017.

[xiii] Communications Over Various Feeds Electronically For Engagement Act of 2017, H.R. 2884, 115th Cong. (2017).