Quinta Jurecic on Lawfare discusses at length the behavior of PEOTUS Trump’s Twitter followers and the basic intellectual dishonesty practiced by Trump and his allies, and it’s well worth the read. One of her more frightening thoughts:
Even if the needle doesn’t move, the mere prospect of a President using Twitter to tacitly encourage attacks on private citizens and lawmakers who oppose him is unpleasant enough, recalling a kind of mob rule demagoguery.
In the case of private citizens, it could lead to a chilling effect in the public square of the internet, with commenters hesitating to criticize Trump for fear of harassment. In the case of Republican legislators, it is also a novel, and particularly nasty, form of political engagement. The online culture of harassment harnessed by Trump has lowered the bar to political involvement and made the possibilities for that involvement uglier, promoting a form of trolling as political participation. But it’s a strange kind of political involvement. Trolling, after all, requires very little effort and allows for the semi-ironic detachment so beloved of certain corners of the internet. There’s no longer any need to drive miles to an hours-long Tea Party meeting, or even to reveal one’s name to put pressure on an elected official who is straying from the leader’s course.
However, one her more interesting observations:
All this poses a particularly odd set of legal problems when Donald Trump takes office on January 20th, taking possession not only of the nuclear football but also of the @POTUS Twitter account. Perhaps the two Twitter handles @POTUS and @RealDonaldTrump will, in the spirit of our baffling zeitgeist, become the king’s two bodies—the institution of the presidency and the person who happens to fill it.
In that case, how do we take a threatening tweet posted by @POTUS as opposed to one posted by @RealDonaldTrump? What happens, legally, if someone suffers damages, or is seriously hurt, as a result of the loosing of a mob by either account? Usually in such a situation, we would look to First Amendment doctrine regarding incitement. But coming either from the President or from the institution of the presidency, such a tweet would probably represent state action and therefore be outside the scope of the First Amendment entirely. Could a party injured, or merely harassed, as a result of one of Trump’s tweets bring a suit against the government? And if so, for what? Is the President, in whom all executive power is vested, allowed to tweet insults at individual people knowing that the result will be to “unleash my beautiful Twitter account on you”? This is uncharted territory.
So if someone is injured because of a POTUS-inspired insult, that might mean Trump is liable, no matter how much he screams about free speech.
But suppose he isn’t held legally responsible. Then what? I propose that WaPo or some other large, national publication begin a column called Trump’s Twitter Victims. Each time someone identified as a Trump opponent is hurt or, tragically, killed, he or she would be listed in the column, along with a biography and the evidence connecting Trump to the incident. Soon it would be syndicated.
And each column could plaintively end with
Why Hasn’t Trump Been Impeached Yet?
Because this behavior is utterly intolerable in the American Republic.
