President Trump’s prolific and sometimes irresponsible use of Twitter has intersected with several significant free speech issues.  Earlier this year, a federal district court ruled that President Trump cannot block Twitter users based on their viewpoints.  Twitter itself is a private forum, not subject to First Amendment protections.  However, @realDonaldTrump’s “interactive space” was deemed a designated public forum incompatible with viewpoint discrimination based on the expressive nature of the medium and President Trump’s use of the account to deliver official pronouncements.

President Trump’s tweets about Muslims who are foreign nationals entering the United States were scrutinized closely by litigants and appellate court judges.  However, the tweets were ultimately not considered relevant to a majority of the Supreme Court in upholding President Trump’s third executive order, which placed entry restrictions on citizens of eight countries.  (Justice Sotomayor’s dissent in Trump v. Hawaii did note his tweets about the entry ban.)  According to Chief Justice Roberts’s majority opinion, the facially neutral executive order, which implicated national security concerns, passed rational basis review and was therefore constitutionally justified “quite apart from any religious hostility.”

Currently, Special Counsel Robert Mueller may be investigating President Trump’s tweets for obstruction of justice offenses.  Specifically, President Trump may have tweeted threats to government officials, like Jeff Sessions, James Comey, and Roger Stone, to attempt to induce them not to offer evidence to Robert Mueller in his investigation of potential Russian interference in the Presidential election.  The relevance of President Trump’s tweets depends upon their constitutional status and whether they provide evidence of the elements of obstruction of justice.

 

The President’s Twitter account may be considered government speech, and President Trump has his own First Amendment rights.  However, there are rare instances where his speech may become unprotected conduct, subject to criminal sanctions or civil penalties.   For example, President Trump could commit libel against a public figure if he, with reckless disregard for the truth, publishes a false and defamatory statement about the public figure.  Whether President Trump is absolutely immune from suit because of his Presidential status is a difficult and contested question.  More obviously, if President Trump dispensed child pornography (which he has not, thankfully), that publication would not be considered protected speech.

Not all criminal sanctions pass First Amendment scrutiny.  Some criminal statutes – for example, a statute banning depictions of animal cruelty – are overturned as infringing upon protected speech.   But the federal obstruction of justice statute is tailored to target threats that prevent witnesses from participating in official proceedings.

The witness tampering statute, 18 U.S.C. § 1152 provides that:

“Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to—

(1)  influence, delay, or prevent the testimony of any person in an official proceeding;

(2)  cause or induce any person to–

(A)  withhold testimony, or withhold a record, document, or other object, from an official proceeding;

 

…

shall be fined under this title or imprisoned not more than 20 years, or both.” (emphasis added)

 

Compulsory process (like subpoenaing witnesses) required by courts to access truthful testimony is heavily regulated, and free speech protections do not play a significant role in this context.  The ability of the courts to resolve legal disputes and dispense justice outweighs most free speech concerns.  For example, in United States v. Alvarez (the Stolen Valor Act case), the Supreme Court overturned a criminal statute prohibiting lying about receiving a military honor.  The Court’s reasoning, however, affirmed the constitutional validity of perjury statutes because “[p]erjury undermines the function and province of the law and threatens the integrity of judgments that are the basis of the legal system.”

Further, the mens rea (mental state) component of federal criminal statutes is quite high.  Courts will likely interpret the witness tampering statute to require not only that the acts that constitute the intimidation are made “knowingly” (meaning he is aware that he is tweeting) but that the defendant is knowingly intimidating others.  President Trump would have to therefore know that his tweets are intimidating witnesses and he would have to intend to influence their testimony.  This high mens rea requirement undermines a claim that the obstruction of justice statute is unconstitutional because the statute does not criminalize abstract political speech, just willful intimidation.  As a result, this obstruction of justice statute is likely facially constitutional, although it may be applied to President Trump in a way that violates the constitution.

Even if generally constitutional, if 18 U.S.C. § 1152 is applied to President Trump in a way that infringes upon protected speech, he may not be prosecuted based on the statute.

Some of President Trump’s tweets appear to be protected blustering.  Tweets praising officials or condemning officials for providing testimony against him can easily be interpreted to mean that because President Trump is not guilty of colluding with Russia, those who testify against him would by lying.  If Trump believes he is innocent, then he is not threatening witnesses but merely defending himself.  Interpreting these statements to indicate obstruction of justice may interfere with the President’s personal free speech rights or his ability to engage in government speech — namely, his ability to defend himself.  The constitutional protections associated with launching an investigation, into unprotected criminal conduct, based on protected speech has divided the lower courts.  Plus, if President Trump’s speech exists in a grey area where it can never be clear whether he is knowingly intimidating witnesses, prosecuting him for his tweets will be seriously chilling to speech.

Certainly, the President should be more careful and sensible with his Twitter account, whether tweeting about foreign dictators or Robert Mueller’s investigation.  However, over-reading his tweets serves to feed his “witch hunt” theories and may become constitutionally suspect.  Unlike Congressman Adam Schiff, I believe there is a large difference between calling a witness and threatening him so that he doesn’t testify and making generalized arguments about testimony on Twitter.  That said, Twitter’s public nature means that the President has the capacity to embarrass public figures, which presents a different kind of threat.  If President Trump truly does have the intent to intimidate, and that can be proven in a way that does not punish the President for his viewpoints, he may be guilty of witness tampering.