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Twitter was an invaluable tool for candidate Donald Trump, allowing him to bypass traditional media channels and connect with a passionate base of followers. But as president, Trump's frequent use of Twitter is turning out to be a major liability for him.

President Trump's tweets earlier this week about his controversial "travel ban" executive order may end up undermining that executive order in court. To recap: Back in January, the president signed the original version, which banned travelers from seven Muslim-majority countries from entering the United States, but gave priority to refugee claims made by individuals whose religion "is a minority religion in the individual's country of nationality." This meant that the executive order effectively favored non-Muslim refugees over Muslim refugees, which many legal experts saw as a violation of the First Amendment. Freedom of religion specifically the Establishment Clause prohibits the government from favoring some religious groups over others.

On February 9, the Court of Appeals for the Ninth Circuit temporarily blocked the Trump administration from carrying out the order. The Trump administration decided to go back to the drawing board and revise it. Among other things, the administration removed the provision giving priority to refugees from minority religious groups in fact, it scrubbed the order of all references to religion. Nevertheless, the Court of Appeals for the Fourth Circuit ruled on May 25 that the revised executive order still violates the Establishment Clause. The Supreme Court will likely be deciding if the order is constitutional this fall.

As is his custom, President Trump took to Twitter to vent his frustration: "The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to S.C." This statement hurts the argument that the government will likely make in front of the Supreme Court that the revised executive order is sufficiently different in motive and operation from the original to pass constitutional muster.

It might seem strange that President Trump's social media habits could have an impact on the constitutionality of the travel ban. But that's because when it comes to the Establishment Clause, courts not only consider the letter of the law, but also the spirit of it. A law, or an executive order, cannot be constitutional if its primary purpose is to discriminate on the basis of religion. When judges are determining a law's primary purpose, they're not just limited to looking at the text. They can also look at the "historical context" of the law and the specific sequence of events leading to its passage. The Fourth Circuit considered President Trump's campaign tweets to be a vital part of the executive order's historical context, citing his campaign promises to ban Muslims from the United States as "creating a compelling case that [the revised executive order's] primary purpose is religious." By suggesting that the second order was merely a "watered down" version of the first, with the same purpose, President Trump's recent tweets are only adding to a record that may be used against the executive order when its fate is in the hands of the Supreme Court.

On less serious matters, President Trump is also facing a potential legal challenge from two users on Twitter that the president had recently blocked. These two, with the aid of the Knight First Amendment Institute, sent the White House a letter on June 6 stating that the president had violated their First Amendment rights when he blocked them, purportedly because they were critical of his policies. It seems bizarre that blocking someone on Twitter could potentially violate the Constitution, but this stems from President Trump's role as a government official and his use of Twitter to discuss domestic and foreign policy. One could argue, as the two angry tweeters might, that President Trump has turned his Twitter account into a limited public forum a place where people can express themselves. A similar thing happens when the government allows people to use its meeting spaces, or enables people to leave comments on an online forum. The government can place reasonable regulations on this sort of activity for example, by blocking users who make threats, or censoring profane comments but it can't discriminate against users based on their point of view.

It's unclear whether the challenge to the president's Twitter blocking practices will end up in court. But it's worth watching and interesting to note that Twitter has gotten President Trump embroiled in two different First Amendment legal matters.

Lata Nott is executive director of the First Amendment Center of the Newseum Institute. Contact her via email at lnott@newseum.org, or follow her on Twitter at @LataNott

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INSIDE THE FIRST AMENDMENT: Trump's use of Twitter puts him in ... - Meridian Star

On May 31, at approximately 7:30 in the morning Eastern Time, the president of the United States of America blocked me on Twitter.

This was right after I had sent @realDonaldTrump a series of tweets advising him to spend more time with his 11-year-old son Barron instead of golfing every weekend. I also called him an "orange tyrant." I had been doing that sort of thing for a while, as part of a loose group of mostly left-leaning verified Twitter users who regularly tweet at Donald TrumpTwitter makes replies to Trump from verified users more visible than other replies, so a bunch of us take advantage of this to criticize, fact-check, and sometimes taunt the famously thin-skinned chief executive.

While it started as a funny pastime to call out Trump for his confusing, inconsistent, and false comments, it developed into something a bit more serious. On Tuesday, the White House admitted that Trump's tweets were "official statements," but even before that, these 140-character ramblings were obviously important. In the last few days alone Trump has started an international incident by tweeting about the London mayor's response to a terror attack and startling the entire world by taking an anti-Qatar stance on Twitter.

Trump's tweets make headlines every day, are referenced in congressional hearings, discussed at foreign policy summits, and a frequent topic at White House press briefings. They may even end up being referenced in the Supreme Court in arguments over Trump's travel ban. And who knows, maybe being one of several voices who routinely push back on his stream-of-consciousness nonsense could at the very least promote some small amount of political discourse, and maybesomehowmake a difference. But I wasn't holding my breath.

Then Trump blocked me, and I'm pretty sure he did it himself.

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The night before, he tweeted the now-infamous line, "Despite the constant negative press covfefe," a bizarre typo that remained online from around midnight until about 6 AM. To me, that was evidence that Trump is the sole man behind his account, rather than his communications team. Figuring out which tweets are tapped out by the president and which come from his team is something of a media parlor gamebut blocking me, the guy who tried to get high smoking coffee and drunk on kombucha? That's a petty, pointless move that had Trump's small fingerprints all over it.

Within a few days, I came to learn that I was not the only one to be censored. Following my block on May 31, about a dozen left-leaning journalists, pundits, and otherwise critics had also been blocked after posting replies to his timeline. The tweets that seemed to provoke the blocks ranged from fairly aggressive to innocuous. One writer called him "a flakey, orange, illiterate, racist lizard"; a famous cyclist simply tweeted "Greetings from Pittsburgh, Sir." Both were shut down.

I'm more than happy to admit that this whole thing sounds absolutely silly, but it also points to a unique question over whether or not the president should be silencing his critics in such a mannereven when the criticism is taking place on an insular, not-as-relevant-as-its-users-think social media platform. (Sorry, @jack.)

While some of us have found workarounds to continue taking part in the conversation, the blocks have undoubtedly created a chilling effect, with a number of users unable to reply to Trump, or were simply discouraged.

The question is, could these blocks constitute a violation of the First Amendment?

Twitter is a private service that is free to regulate its content as it sees fit. (And actually, some people think it should do a little more regulating.) But Donald Trump is not a private citizen, and the presidency has some fairly strict and extensive rules governing lines of communication.

I don't understand any of them because I studied film and psychology in college. So instead, I've been working with DC attorney Nicole J. Monsees to help understand the legal issues surrounding this case. I've also joined an effort by the Knight First Amendment Institute at Columbia University to get Trump to unblock his critics.

On Tuesday, lawyers at Knight sent Trump a letter demanding he unblock us on the grounds that these blocks violate our freedom of speech due to what @realDonaldTrump represents. "This Twitter account operates as a 'designated public forum' for First Amendment purposes, and accordingly the viewpoint-based blocking of our clients is unconstitutional," reads the letter.

The relevant body of law is a set of rules concerning how the government interacts with the public in open forums. In the offline world, private buildings are sometimes used to host town hall meetings, for instance, and when they are, these meetings fall under something called the "Public Forum Law."

In essence, meetings between government officials and constituents are presumed to be a public space, like a street corner or a public park. While there may be certain rules that all participants must adhere to (no nudity or violent threats, for example), government officials are theoretically not allowed to limit criticism or otherwise divergent viewpoints at such meetings.

Does Public Forum Law apply online as well? Monsees pointed to a number of cases where courts found that it did.

One legal fight that began in 2012, Hawaii Defense Foundation v. City and County of Honolulu, came about after the Honolulu Police Department's Facebook page removed comments in which a user accused the department of "getting your internet nazi powers rolling early in the morning." Problematically, the department's Facebook page indicated that it was "a forum open to the public," and the ensuing lawsuit, which took two years to resolve, cost Honolulu about $31,000 in attorney fees, and forced them to establish new social media policies.

One could argue that @realDonaldTrump is Trump's private account and therefore not subject to the same rules as @POTUS, the official presidential account. But @realDonaldTrump's tweets are official statements just as @POTUS's tweets are.

Relatedly, @realDonaldTrump's tweets are also likely subject to the Presidential Records Act of 1978. After lawmakers in both parties and the National Archives told the White House that presidential tweetseven those deleted because of misspellingsshould be preserved for posterity, administration officials reassured everyone that they were being properly saved.

The current Knight Foundation legal effort is about more than just Trump. He won't be the last president to rely on social media, and it's important to set standards for what presidents can and can't do when it comes to limiting the discourse that occurs on their pages. That discourse might be inane and insultingbut hey, so are many of Trump's tweets.

Follow Jules Suzdaltsev on Twitter, where he is still tweeting at Trump.

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My Weird Battle to Get the President to Unblock Me on Twitter - VICE

Free speech and its limitations are on Americans minds. In the past year weve seen Nazis and white supremacists rally in our cities, angry protesters chase provocateurs off of college campuses, a comedian wield a bloody effigy of the presidents severed head, and slurs and overt racial animus made a staple of political discourse. Controversial speech has people talking about what restrictions, if any, society can enforce on words we despise.

That inquiry isnt inherently bad. Its good for citizens to want to learn more about the contours of our constitutional rights. The dilemma is that the public debate about free speech relies on useless cliches, not on accurate information about the law.

Here are some of the most popular misleading slogans:

This slogan is true, but rarely helpful. The Supreme Court has called the few exceptions to the 1st Amendment well-defined and narrowly limited. They include obscenity, defamation, fraud, incitement, true threats and speech integral to already criminal conduct. First Amendment exceptions are not an open-ended category, and the Supreme Court has repeatedly declined to add to them, especially in the last generation. Merely observing that some exceptions exist does not help anyone determine whether particular speech falls into one of those exceptions. Its a non sequitur.

Imagine youre bitten by a snake on a hike, and you want to know rather urgently whether the snake is venomous. You describe the snake to your doctor. Well, not all snakes are venomous, your doctor responds. Not very helpful, it is?

Almost 100 years ago, Supreme Court Justice Oliver Wendel Holmes, Jr. coined a version of this now-familiar metaphor. Holmes used it to explain why the Supreme Court was upholding the criminal conviction of Charles Shenck, who was jailed merely for distributing materials urging peaceful resistance to the draft in World War I. Fortunately, the Supreme Court often led by Holmes himself retreated from this terrible precedent, eventually ruling that speech cant be punished as incitement unless it is intended and likely to provoke imminent lawless action. In other words, this favorite rhetorical apologia for censorship was used in the course of a decision now universally recognized as bad law.

Holmes usually misquoted slogan (he said that the law allows us to punish someone for falsely shouting fire in a crowded theater) is really just another way to observe that not all speech is protected and there are limits to 1st Amendment protections. As I said before thats not in dispute, but invoking the truism does nothing to resolve whether any particular speech falls within the well-defined and narrow exceptions to the 1st Amendment.

This popular saying reflects our contempt for bigotry, but its not a correct statement of law. There is no general 1st Amendment exception allowing the government to punish hate speech that denigrates people based on their identity. Things we call hate speech might occasionally fall into an existing 1st Amendment exception: a racist speech might seek to incite imminent violence against a group, or might be reasonably interpreted as an immediate threat to do harm. But hate speech, like other ugly types of speech we despise, is broadly protected.

Censorship advocates often tell us we need to balance the freedom of speak with the harm that speech does. This is arguable philosophically, but it is wrong legally. American courts dont decide whether to protect speech by balancing its harm against its benefit; they ask only if it falls into a specific 1st Amendment exception. As the Supreme Court recently put it, [t]he First Amendments guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs.

Years ago the Supreme Court recognized a very narrow 1st Amendment exception for fighting words. If the exception still survives, its limited to in-person face-to-face insults directed at a particular person and likely to provoke a violent response from that person. It doesnt apply broadly to offensive speech, even though its often invoked to justify censoring such speech.

The Supreme Courts approach to constitutional rights can change very quickly. For instance, it took less than a generation for the court to reverse course on whether the government could punish gay sex. But for decades the court has been moving towards more vigorous protection of free speech, not less. Some of the most controversial and unpopular speech to come before the court like videos of animals being tortured, or incendiary Westboro Baptist Church protests at funerals have yielded solid 8-to-1 majorities in favor of protecting speech. Theres no sign of a growing appetite for censorship on the court.

Even as a free speech advocate and critic of censorship, Im happy to see a public debate about the limits of free speech. Any debate that raises consciousness about our rights can be productive. But the free speech debate should proceed based on facts and well-established law, not empty rhetoric. Familiarity with our rights and how they work is a civic obligation.

Ken White is a 1st Amendment litigator and criminal defense attorney at Brown White & Osborn LLP in Los Angeles.

Follow the Opinion section on Twitter @latimesopinion or Facebook

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Actually, hate speech is protected speech - LA Times - Los Angeles Times

In what attorneys are calling a victory for state policies against child abuse and a vindication for the First Amendment, Ohio's Eighth District Court of Appeals upheld the trial victory of a former student and former employee of the Chagrin Falls-based English Nanny & Governess School.

The appeals court also found that trial court judge Burt Griffin abused his discretion byreducing the jury's damages and attorneys' fees awards to plaintiffs, and by sanctioning attorney Peter Pattakos for sharing publicly available information about the case with Scene.

"The appeals court's decision represents a great victory for Ms. Cruz [the former student] and Ms. Kaiser [the former employee], and vindicates the First Amendment, the public's right to access court proceedings, and most importantly, Ohio's strong public policy against child abuse," said Pattakos, in a press release. "Christina Cruz and Heidi Kaiser are real heroes, and not just for resisting the efforts of defendantswho were in a position of great power and influence over them and their careersto suppress the child-abuse report."

The original suit, filed by Cruz, alleged thatthe schools owners retaliated against her after she reported that she saw a wealthy client sexually abuse his daughter in 2011.

"Upholding the trial court's decision could have numerous unintended consequences," the appeals court said in its decision. "For example, defendants in criminal cases potentially could ask for sanctions against prosecutors who provide information to the media about criminal cases. On any given day, newspapers show headlines of ongoing trials, recapping the evidence that was presented that day at trial. In fact, on April 3, 2015, around the same time that Scene Magazine printed the article at issue, a former Cuyahoga County Prosecutor issued a public statement that was published on various news media outlets about the trial of a Cleveland police officer that was set to begin in three days. No sanction was levied against the prosecutor's officer for this public statement ... It should not be held that merely urging a media outlet to cover a trial constitutes frivolous conduct."

The full press release, with information about the Appeals court's decision, is available here. The court's opinion can be read in full here.

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Big Win for Plaintiffs in Nanny School Sex Abuse Case, Plus Victory for First Amendment - Cleveland Scene Weekly

In a letter to Trump on Tuesday, lawyers from the Knight First Amendment Institute at Columbia University called on the president to unblock people on Twitter (TWTR, Tech30). The group is representing two Twitter users who were blocked by the president after they tweeted critical statements to him.

The lawyers argue that Trump can't exclude people from engaging with him on Twitter based on their viewpoints.

"Your Twitter account is a designated public forum for essentially the same reasons that open city council meetings and school board meetings are," the lawyers wrote in the letter.

The letter is directed at the @RealDonaldTrump account, but lawyers say it applies to the @POTUS account as well.

When someone is blocked on Twitter, they are unable to follow the account, view the account's tweets when logged in to the service, or view tweets the account has liked.

Related: Trump appears to take his cues from Fox News in tweets on London attack

The letter raises interesting questions about how government social media accounts should be treated. The lawyers aren't saying all Twitter blocking violates the First Amendment, but if government officials use Twitter in an official capacity, they shouldn't be able to block people for expressing an opinion.

"While [the letter] relates to our most prominent Twitter user, the principles we seek to vindicate apply to all public officials and public entities that use social media to conduct government business and allow the public to participate," Katie Fallow, senior attorney at the Knight First Amendment Institute, told CNN Tech.

Nearly all high level public officials use Twitter -- many of them to engage in official business.

Courts have previously said public social media accounts used as public forums should not censor opinions. In Davison v. Loudoun County Board of Supervisors, the plaintiff argued that deleting a post on the Facebook page of a County Supervisor violated the plaintiff's First Amendment rights. The court agreed, saying the county can't discriminate or block people based on their views.

On Tuesday, press secretary Sean Spicer said Trump's tweets are considered official White House statements.

If Trump doesn't unblock Twitter users, Fallow said the Knight First Amendment Institute would consider a lawsuit.

CNNMoney (San Francisco) First published June 6, 2017: 6:03 PM ET

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Trump blocking Twitter critics raises First Amendment ...