Skip to main content

Legal Experts Sound Off on Trump’s ‘Insane’ Attacks on Twitter’s First Amendment Rights


President Donald Trump got a reality check on Tuesday, or at least a fact-check, when Twitter began flagging the president’s false or misleading tweets and providing links to factually accurate information–in this case, about extremely low rate of mail-in voter fraud. The president responded by attacking the social media platform, claiming the privately owned company was “stifling free speech,” a statement which many legal experts saw fit to fact-check as well.

The platform’s new fact-checking mechanism appeared when Trump tweeted a series of false and unsubstantiated claims about the prevalence of voter fraud in relation to mail-in ballots.

The link, which urged people to “Get the facts about mail-in ballots,” directed readers to a brief statement explaining the untrue nature of the claims and a list of bullet points rebutting several individual falsehoods.

Twitter had been under increasing pressure to do something about certain tweets posted on the president’s official account, but the final straw appears to have been an emotional plea from the widower of Lori Klausutis. Klausutis’s accidental death nearly 20 years ago has been used by the president to accuse MSNBC’s Joe Scarborough of murder.

According to the medical examiner’s report, the then-28-year-old congressional staffer fainted while working late in Scarborough’s Florida office and, due to an undiagnosed heart condition, hit her head on a desk. Klausutis wasn’t found until the following morning. Scarborough himself was more than 900 miles away in Washington at the time.

Timothy “T.J.” Klausutis asked Twitter to remove Trump’s “horrifying lies” about his deceased wife. Twitter did not do that, but they fact-check the president on Tuesday.

Upon learning of the new feature, the president responded by erroneously accusing Twitter of violating his right to free speech; he threatened to take action against the company.

“Twitter is now interfering in the 2020 Presidential Election. They are saying my statement on Mail-In Ballots, which will lead to massive corruption and fraud, is incorrect, based on fact-checking by Fake News CNN and the Amazon Washington Post,” Trump tweeted. “…Twitter is completely stifling FREE SPEECH, and I, as President, will not allow it to happen!”

As noted in a previous Law&Crime analysis regarding the decisions of private business entities, the First Amendment protects “subjects and citizens from government action.”

Twitter is not the government.

The irony of the president complaining that a non-state actor was violating his right to free speech–only to threaten to use his government position to prevent that non-state actor from continuing to operate in such a way (which would be a violation of Twitter’s First Amendment rights)–was not lost on legal experts.

Anti-Trump Harvard Law School Professor Laurence Tribe, one of the nation’s most widely known constitutional scholars, called Trump’s tweet’s “insane.”

“Trump attacking Twitter for exercising its indisputable First Amendment right to opine on the misleading tweets he posts on its platform. Now THAT IS INSANE,” Tribe wrote.

Tribe also provided a series of tweets explaining why Twitter cannot abridge Trump’s free speech.

Former acting solicitor general and U.S. Supreme Court litigator Neal Katyal also provided a rebuttal.

Several other experts weighed in as well.

Berkeley Law professor Orin Kerr:

University of Kentucky College of Law professor Josh Douglas:

Trump campaign Senior Legal Advisor Jenna Ellis responded to the Trump-Twitter feud. She called Twitter’s fact-check decision “blatantly partisan.”

[image via SAUL LOEB_AFP via Getty Images]

Have a tip we should know? [email protected]

Filed Under:

Follow Law&Crime:

Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.