COVFEFE Act Triggers 1st Amendment Concerns

Life increasingly mimics art (or what now resembles art), as Rep. Mile Quigley (D-Ill.) has introduced the so-called COVFEFE Act, preventing the President from deleting any of his social media posts. In other words, a Congressman is now using legislation to troll the President’s Twitter feed.

As the trolls now disembark the Internet and storm the halls of Congress, I’m naturally inclined to ponder: “Can they do that?” More specifically, does the First Amendment give Donald Trump the right to delete his tweets? The answer, as you can imagine, is somewhat complicated and probably depends on the nature of the social media post.

This naturally follows a week after a number of Twitter users accused the President of violating their free speech rights after allegedly blocking them from @realDonaldTrump based upon their viewpoints. Prof. Eugene Volokh refuted these claims in a well-reasoned column. In the meantime, I have somehow felt compelled to add COVFEFE to my computers’ spellcheck dictionary.

How the COVFEFE Act Modifies the Presidential Records Act

Let’s start by taking a look at the text of the proposed COVFEFEor Communications Over Various Feeds Electronically for EngagementAct. The existing Presidential Records Act is codified in 44 U.S.C. §§ 2201-2207 and mandates the preservation of presidential records. 44 U.S.C. § 2201(2) defines presidential records as “any documentary materials…whose function is to advise or assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.” In other words, any documents the President or his staff creates to help the President carry out his duties.

For clarity, this is how Section 2201 would read if the COVFEFE Act passes, with modifications and changes in bold:

(1) The term “documentary material” means all books, correspondence, memoranda, documents, papers, pamphlets, works of art, models, pictures, photographs, plats, maps, films, social media, and motion pictures, including, but not limited to, audio and visual records, or other electronic or mechanical recordations, whether in analog, digital, or any other form.
(2) The term “Presidential records” means documentary materials, or any reasonably seg­regable portion thereof, created or received by the President, the President’s immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise or assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President. Such term—
(A) includes any documentary materials relating to the political activities of the President or members of the President’s staff, but only if such activities relate to or have a direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President; and
(B) includes any personal and official social media account; but
(C) does not include any documentary materials that are (i) official records of an agency (as defined in section 552(e) of title 5, United States Code); (ii) personal records, except as provided for in sub-paragraph (B); (iii) stocks of publications and stationery; or (iv) extra copies of documents produced only for convenience of reference, when such copies are clearly so identified.
(6) The term ‘social media’ means any form of electronic communication (such as a website for social networking and microblogging) through which users create an online community to share information, ideas, personal messages, and other content (such as videos).

I redacted Paragraphs 3-5 for brevity, but you may view them here.

The Nature of the COVFEFE Act Modifications

As you can see, the COVFEFE Act would classify “any personal and official social media account” as a presidential record.

Conceptually, I like this legislative proposal because it recognizes that what we post on social media is more akin to a permanent document than the fleeting scribbles on a chalkboard. What we post online never truly goes away, so it’s fair to classify the President’s posts that “relate to or have effect upon the carrying out of” his official duties as official presidential records. For example, the Twitter handle @POTUS serves as the official Twitter presence of the President of the United States.

However, we cross into murky waters when we look at the President’s personal Twitter handle, @realDonaldTrump. Section 2201 presently makes no distinction between records maintained in the President’s personal storage versus his official storage; for example, a qualifying document personally created by the President on his own personal laptop with his own software that he purchased with his own money and stored on private property would still be classified as a presidential record under existing law. The laptop and the software would remain the President’s private property, but the document would be an official presidential record.

The COVFEFE Act takes this one step further, however, because it includes “any personal and official social media account.” In other words, it appears to nationalize the President’s personal social media accounts, including @realDonaldTrump. This appears to be a stretch.

Section 2201 presently understands that not every document the President creates should be considered a presidential record. Paragraphs (3)(A)-(C) define personal records as documents “of a purely private or nonpublic character” unrelated to the President’s official duties. Examples include private journals and documents regarding political associations and political activities.

The First Amendment Right to Delete

Our Constitution created a republican form of government based upon representation by citizen-statesmen. Its promise, as articulated by Abraham Lincoln at Gettysburg, is “government of the people, by the people, for the people.” Even the President, bestowed with the mighty power of Commander in Chief of our military forces, is by nature a civilian leader. Consequently, the President retains his constitutional rights, particularly when acting in his civilian capacity.

Constitutionally, the First Amendment grants the President the right to delete his personal tweets, just like the rest of us. The Free Speech Clause protects not just the right to speak, but the right not to speak. Deleting a social media post symbolizes that we have changed our minds and chosen not to speak on a matter we once addressed. I suppose some may conceivably argue that deleting a post is substantively different than either not posting it or posting a retraction; however, this argument is premised upon the notion that the federal government may dictate its preference of one constitutionally protected manner of expression (or non-expression, or changed expression) over another. I think not.

Furthermore, even if we somehow concluded that deleting a tweet is not protected speech, we must remember that the First Amendment protects expressive conduct. In many different ways. The Supreme Court devised the following test in Spence v. Washington for determining that conduct is treated as protected speech: “An intent to convey a particularized message was present, and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it.” In other words, does the actor intend to send a message and will it be understood by others?

Deleting a tweet is a simple act of using the Twitter interface to remove a post that we no longer wish to be published. Why would we do this? Perhaps we change our minds on the substance of the tweet; maybe we later decide it was an opinion we prefer not to share; or possibly we decide it contained typos or was otherwise inarticulate, among other possibilities. Whatever the reason, we send one obvious message by deleting a tweet: Oops, my bad! That mea culpa is generally understood by others who learn that the tweet was deleted. Consequently, it is protected conduct.

Balancing the President’s First Amendment Rights Against Transparency Laws

Since we understand that Donald Trump enjoys the First Amendment right to delete his tweets as a private citizen, we must turn to the question of the extent to which he relinquishes this right in his presidential role. The Supreme Court has held that valid legislationsuch as conflict-of-interest rulesmay limit the free speech rights of government officials in their official capacities.  The Presidential Records Act is analogous for its valid purpose of government transparency. The fair question, then, is how much of the President’s social media presence is within his official capacity, and how much is within his personal capacity?

As indicated above, the @POTUS handle was created by the Obama White House and passed down to the Trump White House; by its creation, management, and very name, it is a government creation that represents not an individual, but the office of the President of the United States. Anything posted to there should be presumptively regarded as a presidential record.

The @realDonaldTrump handle, however, was created and prolifically used by Donald Trump years before he ran for President. I don’t think it suddenly became government property as soon as he took the oath of office. It seems that the tweets from this account fall into a handful of different categories:

  1. Tweets that have nothing to do with government;
  2. Tweets where the President angrily lashes out at the media and other opponents;
  3. Tweets where the President campaigns for his policy objectives; and
  4. Tweets where the President describes his goals and achievements.

I think the First Amendment gives the President the categorical right to delete inherently nonpolitical tweets. On the other hand, COVFEFE (and the spirit of the Presidential Records Act) may properly prevent the President from deleting tweets documenting how he has carried out his official duties. Here is a good example:

Screen Shot 2017-06-13 at 2.04.21 PM

 

The President stated the progress of his international trip and summarized his interactions with other NATO leaders. This is a presidential record in the truest sense, and it should be preserved. Note also that it was deleted and retrieved by Factbase. The President may have later decided that divulging this matter was hasty, but the Presidential Records Act likely renders this a pitch that he cannot un-throw.

The more challenging question is whether the President may delete political tweets that angrily lash out at his opponents or campaign for his policy objectives. These are complicated because they touch upon his simultaneous roles as a a government official and as a politician. Are these two distinct capacities, or has the presidency grown so encompassing that it has eroded at any meaningful distinction? The fact that this is even a question demonstrates that the Executive Branch has grown into a behemoth that would have terrified the founding generation:

Hence it appears that, except as to the concurrent authority of the President in the article of treaties, it would be difficult to determine whether that magistrate would, in the aggregate, possess more or less power than the Governor of New York.

My, how times have changed since Hamilton wrote Federalist No. 69.

Conclusion

To make a long story short, the COVFEFE Act may not broadly classify the President’s personal Twitter account as a personal record. The President retains his rights to the account itself and to his personal tweets. The First Amendment gives the President the right to delete them, under the theories of the right not to speak and expressive conduct. The account and personal tweets are his personal intellectual property, and I argue in a separate post that such an imposition may constitute a government taking the Fifth Amendment.

However, the COVFEFE Act may lawfully designate the President’s tweets concerning his official duties as presidential records. The spirit of the Presidential Records Act requires this. If the President wishes to exclude his political but not necessarily official @realDonaldTrump tweets from the Presidential Records Act, then he would be wise to restrict all tweets regarding his official duties to @POTUS. He can always retweet these to @realDonaldTrump. This would create a stronger presumption that @realDonaldTrump only conveys personal tweets and opinions that do not qualify as presidential records. Of course, discretion has never been the stronger part of President Trump’s valor.

Categories: Constitutional Law, First Amendment, and Free Speech.