Sunday, January 10, 2021
McKechnie on Government Tweets, Government Speech: The First Amendment Implications of Government Trolling @AF_Academy
Douglas B. McKechnie, United States Air Force Academy, is publishing Government Tweets, Government Speech: The First Amendment Implications of Government Trolling in volume 4 of the Seattle University Law Review. Here is the abstract.
President Trump has been accused of using @realDonaldTrump to troll his critics. While the President’s tweets are often attributed to his personal views, they raise important Constitutional questions. This article posits that @realDonaldTrump tweets are government speech and, where they troll government critics, they violate the Free Speech Clause. I begin the article with an exploration of President Trump’s use of @realDonaldTrump from his time as a private citizen to President. The article then chronicles the development of the government speech doctrine and the Supreme Court’s factors that differentiate private speech from government speech. I argue that, based on the factors in Walker v. Tex. Div., Sons of Confederate Veterans, Inc., @realDonaldTrump is government speech. After concluding the President’s tweets are government speech, the article moves to a less developed issue in the Court’s jurisprudence— whether the Constitution places limits on what the government may say. The Court has determined that the First Amendment has no bearing on the government’s freedom to choose what views it propounds. Still the Court has intimated that other Constitutional principles may act to restrain the government’s speech. I suggest that although the First Amendment does not prohibit the government from choosing among a variety of viewpoints, it restrains the government’s speech in other ways. I argue that, because the government may not interfere with an individual’s freedom of speech, the government violates its critics’ Free Speech Clause rights when it trolls them in an effort to dissuade them from speaking.
Download the article from SSRN at the link.