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tv   Knight Institute v. Trump Oral Argument  CSPAN  July 11, 2019 8:48am-9:31am EDT

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captioning performed by vitac >> -- in order to speak into that larger private forum. the discussions aren't happening specifically on @realdonaldtrump, they're happening across twitter in response to things that he has said. and the best example i can give of this is that the replies themselves aren't necessarily hosted on @realdonaldtrump. if he were to delete a tweet, for example, the things that people have said directly to him would exist elsewhere. you could see them on the
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accounts that were -- on the account of the twitter -- of the individual account owner who had replied. they exist on a tab that says tweets and replies. so really these comment threads under @realdonaldtrump are better seen as sort of a record of conversations that are happening across twitter. so when donald trump blocks someone, he's not keeping them from these conversations, he's not keeping them -- >> but he's making it much more difficult for them to access his tweets, though, isn't he? there are ways to go around this, with shadow accounts and other ways going on the internet, but it's still much more burdensome and not as effective as if you can simply respond to a tweet, reply to one of his tweets or reply to a reply. >> i don't think that i would say it was much more burdensome. certainly all of the -- so it's -- >> but isn't that judge parker's point, though? for the first amendment it doesn't really have to be much more burdensome. if it's more burdensome at all, if you have to move down the street, that violates the first
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amendment. >> so the question of whether -- if it is a forum it does not have to be more burdensome, but the things that we have just discussed, the fact that people still have access to the greater conversations that are happening in twitter shows that they are not burdened from their access to a forum, they are burdened from their ability to reply directly to @realdonaldtrump. >> assuming that this is a public forum and that what we have here is viewpoint discrimination, the existence of a work around is not a defense to that, is it, under first amendment jurisprudence. >> so if this were considered to be state action, an action taken in his official capacity and not his personal capacity -- >> that's a hypothetical. >> and this were to be considered a public forum, then, of course, viewpoint discrimination would not be permissible, but neither of those -- but neither of those two at limits are present here. this is both something conducted
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in his personal capacity and -- >> when you say something conducted in his personal capacity, what does that mean? >> so -- >> in light of the long -- we can cite you endless -- not endless, but quite lengthy list of examples of what is undisputably official business being conducted on the twitter account. >> so that's certainly true, but, again, we have to look at the individual nature of blocking and what power is being exercised when the president blocks someone. >> he's excluding people whose viewpoints he disagrees with. >> and certainly private individuals do that all of the time. >> right, but he is not a private individual. >> he's not a private individual. he is the president. >> you are here because he is not a private individual. your very presence here represents the fact that this is a public forum. >> certainly, your honor, but if he was on the street and someone approached him and he walked
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away from that person, we wouldn't say, either, that that was a choice or a power he was exercising by virtue of his governmental authority, nor would we say that his choice to walk away from that person and not hear his views was a forum. >> i don't see how that helps you. >> so i think it helps illustrate the underlying point here, which is that plaintiffs have been blocked from being able to directly reply to donald trump, but they are capable of having conversations both about his tweets, both continuing to criticize him, continuing to engage with everyone else who is talking about what he has to stay. they are still part of the overall privately owned forum that is twitter, but his account itself -- i think the better way of looking at it is he is not a regulator of a forum, he is a participant in a forum. he is participating in twitter, no the acting in a controlling way, he is choosing with whom he is going to engage with and have conversations with, but in ordinary common sense physical -- the ordinary common
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sense physical realm we don't think about those choices as creating a space or a forum. >> the archives has said that all of the -- that the tweets are official records that must be retained and maintained and presumably find their way to the archives. would you agree that the archives is entitled also to receive the replies and the retweets and the likes? >> so i am not an expert in presidential recordkeeping laws. i know that the standard is that the president's electronic communications, if we consider these to be electronic communications, that are related to the constitutional, statutory or official duties of his office
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must be maintained by the president so that they can be passed on to the next president in order to facilitate transitions. i'm not sure whether we would consider things that people express to the president on the internet in all circumstances to be within that. >> not all circumstances. the record with the likes and the retweets and so forth. do you think that the archives request doesn't cover them? >> i am -- i think there's reason to believe that it might not cover them, but, again, i'm not an expert on that area of law. >> that seems to make no sense if the tweet is official public record, then the -- >> well, certainly there are many letters, for example, in the physical realm that would be sent to the president that i imagine there isn't a requirement for the president to keep every single letter that has been mailed to him and similarly i don't think there would be a requirement for every single reply to a statement he
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makes on his twitter account to be kept and maintained by the records, but, again -- >> do you think the president or someone in the white house, then, could go through the accounts and only retain -- only turn over to the archives the tweets themselves? do you think that would comply with the archives' request? >> it's possible, but, again, these are decisions that are usually made by white house lawyers and i am not entirely familiar with how those decisions are made. the management is not handled by archives, but rather by the president and his staff themselves. >> thank you, mizzou direct. >> thank you, your honor. >> you have reserved three minutes for rebuttal. >> thank you. >> mr. jaffer. >> good morning, your honor's. jameel jaffer for the plaintiffs. public officials across the country now use social media to communicate with and to hear from their constituents and these social media accounts
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often serve the same purposes as forums like city council meetings or school board meetings or town halls. >> fourth circuit just said facebook utilized by a county supervisor is a public forum. is there any material difference between facebook and the twitter account here? >> the platforms are different. i think that in individual cases the plaintiffs can make -- might be able to make a compelling case that a particular account on facebook is a public forum. we were counsel to davidson in the fourth circuit case so we think that that case is rightly decided, but i don't think that, you know, it follows from this case, from the district court's decision in this case, that every public official's account on every forum, on every platform, is a public forum. i think you have to look at the way the account is used, what resources were used to support
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the account. >> so what factors do we look at, then? >> so i think that there are three paragraphs of the joint stipulation here that might be particularly useful to you. one is paragraph 39, which makes clear that the president uses official government resources in connection with this account. so other government officials have access to the account, they draft tweets for the president to post himself, sometimes they propose language for tweets that the president posts. so this is not an account that the president operates on his own, it's an account that involves the substantial and sustained involvement or investment of resources by other government personnel. second, paragraph 37 of the joint stipulation makes clear that the government has itself characterized the president's tweets as official statements and i think we heard the government do that again this morning. but in a variety of contexts now the government has characterized
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the president's tweets as official. the press secretary said that to -- to the press, to the media, in a press briefing. the government has said it to various courts, including the fourth circuit. so i think there's no dispute that the president's tweets are official statements of the government. >> even if that's true, what do you make of the argument that the blocking function exercised by him is a private function? that everything else may be a public forum and it may be a public twitter account, but the blocking function that he exercises is private. >> i'm not sure that these two things can be separated in that way, your honor. the only reason that the president is in a position to block people from a public forum is that he is the president. there's state action in the creation of the account -- >> no, he is owner of the twitter account. >> sorry? >> no, he's own of the twitter account and, therefore, can exercise that control because that comes with his ownership.
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>> that's right, your honor, that comes with -- comes with his ownership. the government says that, well, every owner of a twitter account is in a position to block in the same way that the president is. i think that that argument ends up proving too much because it's also true that the owner of private property is always in a position to exclude people from the private property, but that doesn't stop us from saying when a city councillor, for example, excludes somebody from a city council meeting that that person was acting in his or her official capacity. you know, the point here is that the president established this account in his official capacity, not only is it impossible to separate the blocking from the establishment of the account, but even if you sort of focus on the reasons why the president blocked these particular individuals -- >> i thought he started the account in 2009. isn't that stipulated to? >> you're right, your honor. i didn't mean to say he started it as president. he started it before he was president but he began using it
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as president as an extension of his office. once he began using it in that way it became a public forum and at that point when he blocked people from the account he was acting in his official capacity. if you look at the reasons why these particular plaintiffs were blocked, one of them was blocked after he complained about the president's immigration policies, another was blocked after complaining about healthcare policies, another was blocked after complaining about the president's policies with respect to russia. so even if you focus myopically on the reasons why the individuals were blocked in this case, they were blocked for having criticized the president about his policies or criticized the president's decisions as president. i guess the other thing that might be -- >> so, therefore, it's the president blocking not donald trump private citizen blocking. >> your honor, i don't know of another case in which -- >> that was a question, sorry. >> right. well, i don't know of any other
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case in which a public official has established a public forum and then excluded somebody from the public forum and a court has said, well, the exclusion was done in the private capacity whereas the forum was established in a governmental capacity. if there's a case like that, i don't know of it, and it doesn't seem reasonable to separate these two things in that way. >> although the other side has pointed out the bush ranch in texas, those are private areas even when the president is there. >> they are, your honor. >> can't the president exclude people from those properties? >> absolutely, your honor. now, it would be a different thing if, you know, tomorrow president trump said i'm going to host a meeting or an open forum at mar-a-lago, anyone who wants to come can come, and i'm going to announce -- make official announcements relating to my presidency, i'm going to disclose our new policy with respect to north korea at this forum. it's an official -- and he
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describes it as an official forum and it's open to anyone, and then he decides at the last minute to exclude people who disagree with him, it seems to me that would be a violation of the public forum doctrine. that's not usually what happens at mar-a-lago. >> that's because he said it's open to anyone. >> that's right. >> what if he has implicitly said it's really only open to people who are my supporters? >> then i think you would be talking about a different kind of case, your honor. >> but why isn't that this case? >> because the president didn't say that initially. the president opened this to everybody, there are 50 million followers to this account. there are -- >> so having done that -- well, dee factor and a jury having said nothing about who can participate, he has no ability, then, to limit this forum that he has -- i will say unwittingly, i'm not sure it is, but unwittingly created.
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>> on the basis of viewpoint. now, if the president tomorrow decided that he wanted to institute some viewpoint-neutral time, place and manner restrictions on the account, i don't think those would necessarily raise first amendment concerns. the reason this case raises those concerns is that the president blocked these individuals because they criticized government policy and that is t that is stipulated, the parties have stipulated to that. >> just so i have it, mr. jaffer, where is that in the stip, do you remember? and if you don't don't worry about it. >> right in the opening of the stip, your honor, first paragraph of the stipulation. >> okay. >> on this issue of blocking versus the establishment of the forum, i think it's worthwhile to consider the implications of the government's theory here. if the court were to hold that this kind of blocking is beyond the reach of the first amendment, that would have implications far beyond this
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particular context. it would seemingly apply to the @potus account, to the @whitehouse account, it would apply to every government website that has a space for public comment. i think you would be opening the door to distortion and manipulation of those spaces as well if you were to accept that line of argument. >> so the president block anti-semitic material from the tweet stream? >> i think that -- >> racist, rabidly racist material? >> if the policy were vooupt neutral then i think that the first amendment might permit it. >> anti-semitic. >> i think probably, yes, your honor. i think you would have to ask
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about the -- so the way that the court has addressed these limitations, limitations that were imposed in the first instance, the court has asked whether those limitations are viewpoint neutral and whether they are necessary to facilitate the operation of the forum. so if you look at a case like -- like forbes, for example, which involved the public broadcaster that excluded somebody, one candidate for a public debate, the court asked whether the limitations that the public broadcaster had placed on this particular space were viewpoint neutral and consistent with the purposes of the forum. i think that's the analysis. you know, i don't know that i know the answer, the ultimate answer to the question, judge parker, but i think that's the way that the court would analyze it. it would certainly be a different case from this one because, you know, we are stipulating in your hypothetical that it's not viewpoint neutral. >> could i ask you about a
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decision of the district court below. that is, the district court found that only first order replies were in the public forum. you maintain that the whole thread is within the public forum. why is that, if the president is not involved in those replies to replies or retweets -- you know, that other people are doing in the thread? >> well, i think it's because that while the president doesn't have direct -- direct control over what we might call sur replies, the replies to the replies, the president's decision to block somebody from his account has an affect on that person's ability to participate on the same terms as other users at that level. so, for example, if you are somebody who has been blocked from the president's account, you don't see replies to the president's tweets unless you follow the replier already independently. even if you see that reply
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because you follow that person independently already, you don't see the president's tweet that initiated the whole chain. so your ability to participate on the same terms as other -- you don't have the same ability to participate on the same terms as other users in the common threads. now -- >> even though electronically by i won't say microseconds but you probably could put yourself in a position of being able to do that. >> you're right, your honor, that there are workarounds. the workarounds involve both time and burden and that is sufficient to establish a first amendment injury here. >> assuming it is a forum. >> assuming that it's a forum. >> a public forum. >> judge droney, just to underscore one point here, ultimately i don't think it matters whether the district court is right about the scope of the forum or we are right about the scope of the forum because even on the district
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court's view our plaintiffs were excluded from a public forum. you know, maybe there is a dispute about what the scope of the forum s but the relief is the same in either case. >> you didn't cross-appeal this court. >> we did not. >> but you think we can reach it or we need not to. >> i don't think you need to reach it, your honor, because, again, it doesn't matter. the ultimate relief would be the same. judge hall, you asked the question -- or you just said if it's a public forum. i don't think the outcome of this case would be any different even if it weren't a public forum because of our two other claims. you know, even if this is not -- once you get to state action, once you've established that this account reflects state action, then even if there's no public forum involved, the president has excluded the plaintiffs from a channel used to disseminate official
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government information and he has excluded them for no reason other than viewpoint. he has also, similarly, excluded them from a channel available to the public for petition, for petitioning the president, for addressing grievances and he has done it, again, for no reason other than viewpoint. so i think that, you know, we've litigated this case as a public forum case because the public forum case law seems to fit very naturally with what -- what the president's twitter account is, but even if it weren't a public forum i think that the government would have the same first amendment obstacle to the argument. >> so if we have a concern about or choose to avoid analyzing whether it's a public forum -- sorry, we find, hypothetically, that it's not a public forum, do we need to send it back to the district court for further analysis? >> no, i don't think so, your honor. it's a purely legal question, we have a joint stipulation where the parties have set out the facts and i think that the
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parties have briefed the legal question fairly comprehensively so you can reach those. i don't want to dissuade you from reaching the public forum question, i think that's the body of law that applies most naturally. you know, the only question you really need to answer, again, once state action is out of the way, you only question you need to answer is was this space a space that the government opened up to the public at large for expression. i think that question is easy to answer because the whole point of twitter is to facilitate interaction between users, to facilitate communications. if the government had wanted a one-way channel it could have used a blog or it could have just issued more frequent press releases, but instead the president used his twitter account and twitter is called a social media platform precisely because it allows people to respond to users and to respond
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to one another. so i think that the question about, you know, whether the president intended to establish a forum is, again, relatively easy to answer. >> thank you. >> if there are no further questions, your honors, i will rest on our papers. >> thank you, mr. jaffer. >> you have reserved three minutes for rebuttal. >> thank you, your honor. a few short points. first, with he do believe that the state action question is a threshold question that should be answered before addressing whether this is a forum or any of the plaintiffs' other arguments. i believe -- >> because if it's not state action then it's not a forum? >> because if it's not state action, if it's action by a government official in their personal capacity it cannot violate the constitution. with he see that in a number of things like 1983 cases and the like where actions by people who are government officials but are
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acting in their personal and not official capacity who aren't wielding the authority of the state to do something do not violate the constitution. >> and you say that is the capacity in which the president is operating in this case? >> the president when he blocks individuals from his -- >> when he blocks. >> -- is not exercising official action or wielding the power of the state in the -- >> sorry. just on that -- when you say the president, i just want to -- is the president himself actually entering the blocks? >> in the stipulated facts that is stipulated that donald trump himself is the person who blocked. >> not anybody working for him. >> that's correct, your honor. >> okay. >> so in the same way that, for example, if a president or any other public official were to exercise private property control, now, we are not talking about a situation in which there's very obviously a meeting
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or something that has been observed where someone has said i would like you to come talk and share with me your thoughts, we are talking about a situation where there is a blanket exclusion, i don't want you on my private property, that sort of thing is not exercising governmental control. >> let me ask you this, though. you have stipulated that mr. scavino, the white house social media director, was assisting president trump in the tweets. historically since he's been president, right? you're saying he wasn't involved in blocking at all? >> that's correct. the stipulation clearly states that donald trump and not daniel scavino or any other member of the staff was the person who blocked the individual plaintiffs. and so many of the difficult questions about state action are sort of assuming the forum question which is that the government has intentionally invited people to express disagreement, criticism, compliments, whatever the example was given of the davidson fourth circuit case in which the facebook page at issue
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was created and the government official specifically said the page was created in order to hear from the constituents. there was a clear and open invitation for this. by contrast the @realdonaldtrump account has always been used as a platform for his own speech. what plaintiffs would like to do here is reply directly to him, they would like to sort of use that account in order to amplify their own voice, but as we know from minnesota board of community colleges that's not a right that's protected by the first amendment. >> you concede that some proportion, perhaps a significant proportion of the tweets are in his official capacity? >> that's true, yes, your honor. >> so could he block responses to tweets that emanated from in his official capacity? >> twitter does not allow users to parse their tweets in that way. they have essentially two choices, they can either protect
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their tweets, which is they can only be seen by people they have agreed to have seen, which of course would limit both the amount of people, the audience for the tweets, as well as the amount of people who could reply, or they can have tweets be visible and accessible to every member of the public, including those that don't have twitter accounts as donald trump has chosen to do here. but once that choice has been made there is no ability to pick, for example, who can respond to a certain thing or to, as plaintiffs suggested, limit hate speech in some way. you either allow people to respond or you do not. >> so why doesn't that answer our question? if that's the nature of the debate, how can you possibly consistent with the first amendment exercise blocking power? >> well, because blocking power does not keep plaintiffs from a forum. blocking power keeps plaintiffs
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from replying directly to donald trump. >> blocking power pushes plaintiffs into a workaround. pushes blocked -- blocked users into a -- >> if they would like to speak directly to donald trump through his @realdonaldtrump account, but, again, minnesota board of community colleges makes very clear that that's not something that's protected by the first amendment. >> he has to use the work around to see the replies, too, right? >> that's not true, either, because the replies are available on twitter writ large, the search function on twitter would show the replies. >> but that takes additional effort to do that. >> it takes the same amount of effort that would go to the reemployer's page instead of donald trump's page, in either case it's one step. they are still free to converse with these other people because the forum here if we want to talk about it that way is twitter, not his page. >> why are we -- why are we
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limiting ourselves to that? walk me through how you get there. we are at the nub of what's -- >> right. right. so i think the stipulated facts show several things about the way twitter works. first is that the replies themselves aren't actually hosted on donald trump's page, they are hosted on the broader twitter universe. second, the plaintiffs have full access to everything that everyone has said to donald trump in the broad twitter universe. the threads are a record of the overlapping conversations that are happening. with he also know that most of the plaintiffs have, in fact, continued to participate in these conversations. if they were excluded from a forum none of that would be true. as to plaintiffs' access to information and petition claims, again, this information is available fully to every member of the public with or without a twitter account and of course the right to petition doesn't
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necessarily give you a right to directly talk to a public official in any manner that you want with the right to petition protects is the ability -- it protects you against public officials punishing you for trying to petition. and that simply hasn't happened here. i see no criminal penalties, financial penalties, the things we ordinarily see in right to petition cases. >> thank you both. >> well argued. >> well briefed, well argued. >> safe travels back to washington. thank you all. i go ask the court now please to adjourn court. we go live now to capitol hill and a confirmation hearing for general mark milley to be the next chair of the joint chiefs of staff. the senate armed services committee is chaired by senator jim inhofe of oklahoma. this is live coverage on cn

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