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Victory in the Second Circuit on Trump Twitter lawsuit

trumptwitterbird

Clown imitates icon.

“The First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise-open online dialogue because they expressed views with which the official disagrees. … Once the President has chosen a platform and opened up its interactive space to millions of users and participants, he may not selectively exclude those whose views he disagrees with.”

— Barrington D. Parker, U.S. Court of Appeals for the Second Circuit

Yesterday the U.S. Court of Appeals for the Second Circuit decided in our favor in Knight Institute v. Trump, upholding the decision of from the U.S. District Court that President Trump violating the First Amendment by blocking me and six other plaintiffs on Twitter. The decision was unanimous among the three judges (two appointed by Republicans, one Democrat), who heard oral arguments in March (available in video here).

Here is some of the coverage.

More to come.

I was interviewed for a (paywalled) Times Higher Education article, “US university professor helps beat Trump on Twitter blocking,” saying:

“I often don’t read his tweets before replying. The point is not to have a dialogue with him, but to engage with the millions of people who read his tweets. … When I have a popular reply it can be viewed by 100,000 people or more, which, while small in the grand scheme, is very satisfying as an individual act of resistance.”

The article concludes:

But the professor acknowledged that some of his friends regard his approach as a waste of time, “playing into Trump’s hands, sinking to his level, fueling the outrage industry without advancing the cause of improving democracy through civil discourse. And honestly, they may be right,” he said. “We each have to respond in our own way to what, for many, is a deeply distressing turn of events.”

Much more important than my tweets is the effect of the case on the legal protections for democracy. I share the optimistic take by Jameel Jaffer, the executive director of the Knight Institute and the lawyer who delivered the oral argument in the Second Circuit:

“Public officials’ social media accounts are now among the most significant forums for discussion of government policy. This decision will ensure that people aren’t excluded from these forums simply because of their viewpoints, and that public officials aren’t insulated from their constituents’ criticism. The decision will help ensure the integrity and vitality of digital spaces that are increasingly important to our democracy.”

(The whole team at the Knight Institute has been amazing and I’m deeply grateful.)

I also gave this interview to ABC News streaming show Briefing Room, and offered this summary off the cuff:

This is exactly what we were hoping for. Trump and the Department of Justice that’s representing him had argued that when Trump tweets, they acknowledge, that’s official business, but when he blocked people they said that was his personal preference and his personal behavior. And it’s really new territory because increasingly government official are communicating with the public on these private platforms, and we have to do some work to bring the First Amendment to bear in these environments. The principle here is that if the government, or a government official, establishes what’s called a public forum, then they can’t exclude people from that forum on the basis of their views. So Trump can have a private party, he can have a campaign rally, he doesn’t have to let every person in the world walk into the White House – but if he puts up a sign that says, “Public Debate Happening Here,” then he can’t say, “Oh, by the way, only Republicans can come.” And that’s what the court found he’s doing essentially with his Twitter feed when he blocks people, and creates this false impression that, you know, he has the biggest crowds and everybody loves him.

Here’s the clip:

The next step is to see whether Trump appeals, in which case he can either ask for a review by the full panel of the Second Circuit, or go up to the Supreme Court. We’re supposed to hear within 90 days.

The news office at Columbia, host of the Knight First Amendment Institute, which represents us, produced this short video on the decision:

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The Death of Truth rings true

real enemy tweet

Michiko Kakutani’s book, The Death of Truth: Notes on Falsehood in the Age of Trump, is the second-best Trump book I’ve read, second to Ta-Nehisi Coates’s We Were Eight Years in Power, more trenchant than Jonathan Weisman’s (((Semitism))): Being Jewish in the Age of Trump, and infinitely less completely wrong than Jonah Goldberg’s Suicide of the West: How the Rebirth of Tribalism, Populism, Nationalism, and Identity Politics is Destroying American Democracy (review essay). Those are the only ones I’ve read (open to suggestions).

Kakutani is a great writer, and this little book of 11 chapters in 170 small pages flies by. Since she left the New York Times, where she was book critic for many years, her Twitter feed has been a chronology of political crisis and social decay under Trump; reading it all together induces anxiety at the pace and scale of the descent, but also, surprisingly, some optimism that the situation remains decipherable with the tools of intellectual incision that Kakutani wields so well. With lots of good reviews out there, I’ll just briefly point out some things I appreciated.

Kakutani does the disturbing relevant history without histrionics. So there’s Hannah Arendt and Margaret Atwood, Adolf Hitler and Richard Hofstadter, George Orwell and Aldus Huxley, but not with facile linkages and great leaps. Also, she delves into postmodernism and its influences, but doesn’t simplistically blame postmodernism for creating the “post-truth” world (which rightfully concerns Andrew Perrin); rather she acknowledges the cynical uses to which its language may be put, including among some of its proponents, without the casual lumping of Foucault, Baudrillard, Derrida, and “multiculturalism” or “relativism,” etc., that you see so often. (One thing you know about Kakutani is that she reads a lot.) Although leftist anti-science attitudes play a role in her story (along with anti-institutionalism generally, anti-vaxxers, and so on), she has no interest in the false equivalency that, for example, blames all kinds of identity politics for injecting subjectivism into politics (the way Goldberg does so absurdly), or puts campus no-platforming on the same plane as the Iraq war.

This is an early first pass at a history of the moment, and Kakutani’s wide reading of relevant history connects tightly with the today’s news from Putin’s Russia to Wikileaks, fake news and Cambridge Analytica, to the “culture wars” debates, the “me generation” and today’s information silos, to political polarization, and the siege of journalism. You may as well read it in one sitting.

One good example: In my essay on Goldberg (now updated) I noted that he falsely described Lee Atwater’s maxim, “perception is reality” as “a cliché of the left.” I was glad to see Kakutani bring that up, in the proper context, because it is a moment that still matters. The contrast between their descriptions is telling, so I’ll lay it down here.

Goldberg writes:

“It is a cliché of the left to say that, ‘perception is reality.’ Well, the perceived reality for millions of white, Christian Americans is that their institutional shelters, personal and national, are being razed one by one. They do not like the alternatives they are being offered. Some fraction may indeed be racists, homophobes, or Islamaphobes, but most simply don’t like what they are being offered because they do not know it or because they do know it but prefer what they perceive to be theirs. And yet people like Sanders insist that resistance to their program is not just wrong but evil. The grave danger, already materializing, is that whites and Christians respond to this bigotry and create their own tribal identity politics.”

Goldberg falsely attributes the “perception is reality” approach to the left, then blames the left for making whites into racists. (With anti-Trumpists like these progressives don’t need enemies.) An accurate reading of that history in its proper context links today’s “perceived reality” to Atwater and the GOP itself, to decades of racist propaganda which the GOP generated and then gleefully weaponized. Here’s Kakutani:

“When the Republican strategist Lee Atwater observed in the 1980s that ‘perception is reality,’ he was bluntly articulating an insight about human psychology that Homer well knew when he immortalized Odysseus as a wily trickster, adept at deception and disguise. But Atwater’s cold-blooded use of that precept in using wedge issues to advance the GOP’s southern strategy – and to create the infamous Willie Horton ad in the 1988 presidential campaign – injected mainstream American politics with an alarming strain of win-at-all-costs Machiavellianism using mass media as a delivery system.” (p. 79)

My historical quibble is in the brief handling of China, where Kakutani includes Mao along with Hitler in the Orwell section on the co-optation of language. The Hitler material is excellent, and ties in well with Putin and then Trump’s big lies. But Mao’s “plan of linguistic engineering” does not fit that pattern. China was mostly illiterate, there was no mass media, and the state that was so forcefully imposing fixed terms and meanings, with simple slogans, was also expanding basic education to hundreds of millions of people, and literally reformed the language to make it more accessible, a change that still pays dividends. No need to spare China the criticism, but the early socialist years doesn’t belong in the category as advanced capitalist countries using the tools of fascism against their own democracies.

How bad is it? If Brave New World was warning us about capitalism, and 1984 was warning us about Soviet communism, as Kakutani has it, then it’s ironic that we’re now speeding toward a 1984 scenario even as the capitalist Russian kleptocracy literally parades around the White House (details on Putin’s upcoming visit to be determined). So, it’s bad. (Her conclusion, that only journalism and education can save us, is mercifully brief.) Every week is a crazy unprecedented crisis. Kakutani’s ability to get it down to an organized, linear narrative, with carefully chosen, relevant facts, makes The Death of Truth bracing and clarifying, and well worth a read.

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How conservatism makes peace with Trump

 

Jonah Goldberg telling his Howard Zinn story to John Podhoretz on CSPAN.


I  wrote a long essay on Jonah Goldberg’s book, Suicide of the West. Because it has graphs and tables and a lot of references, I made it a paper instead of a blog post, and posted it on SocArXiv, here. If you like it, and you happen to edit some progressive or academic publication that would like to publish it, please let me know! I’m happy (not really, but I will) to shorten it. There, I pitched it. Feedback welcome.

First paragraph:

This essay is a review of Suicide of the West: How the Rebirth of Tribalism, Populism, Nationalism, and Identity Politics is Destroying American Democracy, by Jonah Goldberg (Crown Forum, 2018), with a few data explorations along the way. I read the book to see what I could learn about contemporary conservative thinking, especially anti-Trump conservatism. Opposing Trump and the movement he leads is suddenly the most pressing progressive issue of our time, and it’s important not to be too narrow in mobilizing that opposition. Unfortunately, I found the book to be an extended screed against leftism with but a few pages of anti-Trump material grafted in here and there, which ultimately amounts to blaming leftism and immigration for Trump. And that might sum up the state of the anemic conservative movement. Goldberg’s own weak-kneed position on Trump is not resolved until page 316, when he finally concludes, “As much as I hold Trump in contempt, I am still compelled to admit that, if my vote would have decided the election, I probably would have voted for him” (316). In the end, Goldberg has charted a path toward a détente between his movement and Trump’s.

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Against Trump’s family separation policy

fearhatredracism

The policy of separating parents from their children when they enter the country without permission has generated a spike of outrage and shock that’s actually noticeable over the background level of outrage and shock.

At the Council on Contemporary Families we don’t take formal policy positions or make partisan appeals, but the board (on which I sit) decided to organize a statement of opposition for individual family researchers and experts to sign. We passed a hundred signatories after the first few hours. You can sign it here, or view the list of signatories here. Here’s the text, and then I have a few comments.

Family Scholars and Experts Statement of Opposition to Policy of Separating Immigrant Families

We write as family scholars and experts to express our opposition to the Trump Administration policy of separating immigrant parents and children at the border as they enter the United States to seek refuge. This practice is an inhumane mistreatment of those seeking refuge from danger or persecution, and goes against international law. As scholars and experts devoted to identifying and sharing information relevant to policies to improve individual and family wellbeing, we deplore the Administration’s callous disregard of the overwhelming scientific information demonstrating the harm of separating children from their parents. This practice is known to be extremely traumatic for dependent children who stand a strong likelihood of experiencing lasting negative consequences from the sudden and inexplicable loss of their caregiver. Government should only separate children from their parents as a last resort when children are in danger of imminent harm. We urge the Administration to reconsider and reverse this policy. Although the Council on Contemporary Families (CCF) as an organization does not take partisan positions or advocate for policy, the CCF Board has decided to circulate this statement so that individual like-minded scholars and experts may join together to express their views publicly.

Comment

The policy has been a vivid showcase of human cruelty, racist political manipulation, hypocrisy, and misdirection.

The human cruelty is most important. The people working for the U.S. government that carry out this policy seem to be no more or less evil than rank-and-file Nazi concentration camp guards. They rip children from the arms of their parents — parents risking life and limb to give their children a chance at safety, or a better life — sometimes under false pretenses, and rationalize their actions as somehow in the service of social order, or the law, or the will of their superiors. Human-tip: quit your job before you follow such orders.

The racist political manipulation comes from the top, where Trump and his legions of lying liars repeat lies about illegal immigrants overrunning our borders, bringing violence and mayhem and taking American jobs and welfare. These lies find fertile ground in the consciousness of people who already don’t consider Latino immigrants to deserving of basic human rights and protections because they don’t see their humanity. Things I’ve heard on Twitter from supporters of the policy include:

The hypocrisy is well represented by the invocation of the Bible to justify these atrocities, a literal chapter and verse repetition of the godless defenses of slavery, Nazism, and apartheid perpetrated by Trumpism’s (recent) ancestors. In the typical up-is-down-wrong-is-right formulation of Trumpism, Elizabeth Bruenig writes, “[Jeff] Sessions and [Sarah] Sanders radically depart from the Christian religion, inventing a faith that makes order itself the highest good and authorizes secular governments to achieve it.”

The misdirection runs beneath all Trumpism’s atrocities, in this case simply inventing a story that the current policy is the result of Democrats’ “horrible and cruel legislative agenda.” This is part of the demagoguery playbook, which predictably cycles from it’s-not-true to it’s-no-big-deal to Obama-was-worse to nothing matters. (When I tweeted a link to the statement above, a Trump supporter asked, “They do realize they’re here illegally?” and then, “So why the hard push now except to smear the President?”) “We are following the law,” said federal prosecutor Ryan Patrick, before possibly accidentally confirming, “Well, it is a policy choice by the president and by the attorney general.”

No

Patrick’s interview is a nauseating testament to how this authoritarianism is corrupting human integrity, as he describes the policy as an attempt to restore fairness to law enforcement:

“I’ve heard the attorney general say – it is not – in his estimation, it is not equitable or fair to simply, like I said, wave a wand over an entire population of crossers just because they come in in a family unit or they have a child with them and we simply ignore them on the criminal prosecution. They’re still crossing the border illegally.”

And what about the documented atrocities?

“I think some of these stories are outliers. This is not the norm. I don’t think this is a standard operating procedure on how all of the agents conduct their business. There’s going to be some situations that are going to be regrettable or that break your heart or – and it is unfortunate.”

OK, so not everyone experiences the very worst abuses. And what about the legal protections of the accused and their separated children?

“So when apprehended, if they’re a family unit, they’re given a card in English and in Spanish that has different 1-800 numbers for them to be able to contact. And there’s also a text line. There’s an email address, if they have access to those in their different holding facilities, where they can track not only their own case but also the location of their child.”

OK, so, Kafka. And about that due process for children?

“And then, when it comes to the juveniles who are in HHS custody, there are some space limitations with attorneys. At any time in the process, they can hire their own attorney.”

And finally, putting it all together: it’s not so bad, but really it’s their fault, and law and order, so.

So, obviously, there are still family units being broken up. But the average stay of those children in those facilities is less than 20 days. It would be – it would be incredibly difficult, if I was a parent, to see my child one of the situations. But at the same time, it also is difficult to wrap my mind around – and I’m not in their situation – but they’re also taking incredible risk to their own life and safety on crossing the border illegally in the way that they do, with their children, and putting them in danger.

This policy is the bad turning the blind against the innocent. It’s vile and inhumane. No one has to tolerate this system of atrocities, and that includes all of us.

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Actually unblocked by Trump, as DOJ appeals ruling

We won our lawsuit on May 23, with a federal judge ruling that Trump blocking me and seven others violates the First Amendment. Now, as of June 4, I am actually unblocked by the president’s @realdonaldtrump account, as are the other plaintiffs. At the same time, the Department of Justice filed a notice of their intent to appeal the ruling to the United States Court of Appeals for the Second Circuit.

winningtweet

Meanwhile, an unknown number of other people remain blocked by the president. The Knight First Amendment Institute, which is representing us, has asked other people who are blocked to contact them at: info@knightcolumbia.org. I would love this case to end up extending to others blocked by Trump, and other public officials.

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We won our First Amendment lawsuit against President Trump

unblocked

Federal judge Naomi Reice Buchwald ruled yesterday that the president is violating our First Amendment rights when he blocked me and six other plaintiffs for disagreeing with him on Twitter. The details and decision are available here. Congratulations and deep appreciation to the legal team at the Knight First Amendment Institute, especially Katie Fallow, Jameel Jaffer, Alex Abdo, and Carrie DeCell (sorry for those I’m missing).

I described my participation in the suit and my tweets last year here, and the oral arguments in March here.

Judge Buchwald’s introduction to the decision is great:

This case requires us to consider whether a public official may, consistent with the First Amendment, “block” a person from his Twitter account in response to the political views that person has expressed, and whether the analysis differs because that public official is the President of the United States. The answer to both questions is no.

She went on to issue declaratory relief, meaning she told the president he’s breaking the law, rather than injunctive relief (an order to act), writing:

It is emphatically the province and duty of the judicial department to say what the law is,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803), and we have held that the President’s blocking of the individual plaintiffs is unconstitutional under the First Amendment. Because no government official is above the law and because all government officials are presumed to follow the law once the judiciary has said what the law is, we must assume that the President and [social media director Dan] Scavino will remedy the blocking we have held to be unconstitutional.

That remains to be seen, of course (I’m still blocked at this writing).

Here are a couple of snippets of analysis.

From Wired:

“In an age when we’re seeing so many norms broken by government regarding free speech, this is an important and right decision,” says [Danielle Citron, a law professor at the University of Maryland]. “It sends a message that we’re not going to destroy free speech norms.”

[David Greene, a senior staff attorney and civil liberties director at the Electronic Frontier Foundation] says he hopes the ruling warns other elected officials who are blocking constituents on social media to stop. “We routinely get a ton of people complaining to us about similar practices,” he says. “I hope they take it as a message that you have to stop doing this.”

From the Mercury News:

“The First Amendment prohibits government officials from suppressing speech on the basis of viewpoint,” said Katie Fallow, senior staff attorney at the institute, in a statement Wednesday. “The court’s application of that principle here should guide all of the public officials who are communicating with their constituents through social media.”

Erwin Chemerinsky, dean of Berkeley Law at UC Berkeley, agrees.

“The judge followed clear law: A government official cannot give selective access of this sort,” Chereminsky said.

From the San Francisco Chronicle:

Knight staff attorney Carrie DeCell said the organization was pleased with the decision, but expects the White House to appeal. “Twitter is a new communications platform, but First Amendment principles are foundations,” DeCell said. “Public discourse is increasingly taking place online.”

DeCell said the case could have implications for all public officials using social media — not just Trump’s account. “The reasoning in the court decisions, we think, should inform public officials’ activities on our social media pages throughout the country,” she said.

My co-plaintiffs have also written on the decision. See Rebecca Pilar Buckwalter Poza in Daily Kos:

Public officials are relying on social media more and more to communicate to constituents. As that shift accelerates, it’s imperative that courts recognize that the First Amendment protects against viewpoint discrimination in digital public forums like the @realdonaldtrump account just as it does in more traditional town halls. An official’s Twitter account is often the central forum for direct political debate with and among constituents, a tenet of democracy.

and Holly Figueroa O’Reilly in the Guardian:

Twitter is as public a forum as a town hall meeting. By blocking people who disagree with him, he’s not only blocking our right to petition our government and access important information, but he distorts that public forum by purging critical voices. It’s like a senator throwing someone out of a town hall because they held up a “disagree” sign.

The New York Times also did a piece on other people Trump blocked (the public doesn’t know how many such people there are), one of whom called the decision “incredibly vindicating.”

I agree. The decision is a breath of democracy fresh air.

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