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Law Media & The Law

Trump, Twitter & The Law

The Trump presidency as seen through his Tweets and related legal issues, laws, and court decisions.

by (author) Sheldon Burshtein

Durvile Publications
Initial publish date
Sep 2020
Media & the Law, General
  • Paperback / softback

    Publish Date
    Sep 2020
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Never has there been a President like Donald J. Trump. In the five years since he announced his candidacy, through Impeachment proceedings and the impact of the coronavirus, President Trump has challenged or ignored almost every standard of the Presidency. Trump, Twitter & The Law tells the story, often through the President’s own words and those of the courts, of his profound impact on the presidency and America. The topic-by-topic discussion of the related legal issues, laws and court decisions covers President Trump’s approaches to women, his businesses, the media, his opponents, the rule of law, law enforcement, the judiciary, elections, violence, race, abuse of his power, transition of power and the truth. The book considers the President’s policies, including immigration, diplomacy, trade, business, the military, the environment, and healthcare. President Trump’s cyberbullying and his responses to impeachment and COVID-19 are also treated. The book also examines the role of Tweets as a Presidential medium and as the basis for, and evidence in, lawsuits. The book combines clarity for lay readers with sophisticated content for attorneys.

About the author

Contributor Notes

Sheldon Burshtein retired in 2017 from his practice of intellectual property and technology law at the major Toronto law firm where he began in 1978. Sheldon earned an engineering degree and two law degrees from McGill University. He also qualified as a professional engineer, patent agent, trade-mark agent and licensing professional. Sheldon was continuously recognized in numerous domestic and peer review surveys as a leader of the international intellectual property bar. Sheldon authored a six-volume treatise on Internet and social media law, and authored and co-authored several other books. His interest in the legal issues presented by social media naturally led him to address President Trump, Twitter & The Law.

Excerpt: Trump, Twitter & The Law: The Trump presidency as seen through his Tweets and related legal issues, laws, and court decisions. (by (author) Sheldon Burshtein)

Except from Chapter "Other Groups" (Footnotes not included)

“I am the least racist person. Black, Hispanic and Asian Unemployment is the lowest (BEST) in the history of the United States!” — Donald Trump, @realDonaldTrump, August 6, 2019

This excerpt considers some of President Trump’s discriminatory communications and policies in connection with various groups that are not addressed in prior chapters:

(i) White Nationalists; (ii) Native Americans; (iii) Jewish-Americans; (iv) Asian-Americans; (v) other religious-based discrimination; and (vi) sexual identification.

White Nationalists
On numerous occasions, President Trump has supported, and posted Retweets of Tweets by, White Nationalist extremist groups on Twitter without apology. The former Grand Wizard of the Ku Klux Klan said that members voted for the President because Mr. Trump said that he would “take [the] country back”. Despite a prepared condemnation in response to the 2017 far-right rally in Charlottesville, Virginia, the President subsequently suggested a moral equivalence between the White Supremacist marchers and those who protested against them and posted a Tweet to express sympathy with the rally marchers. A “Social Media Summit” convened by the President included numerous right-wing extremists such as a major promoter of the extremist QAnon group. President Trump and key members of the Trump Administration deny the existence of White Supremacism as an issue in American society despite the testimony from the Director of the FBI that it is a “persistent, pervasive threat”. Some argue that the Trump Administration propagates “open white supremacy”. Twenty-five Jewish members of Congress demanded that the President fire Stephen Miller, the senior White House advisor who has heavily shaped the immigration policy of the Trump Administration after a report of a public interest group that analyzed almost 1,000 of his emails found that they promote White Nationalism.

Native Americans
Prior to entering politics, President Trump had a long history of issues opposite Native Americans, despite his claim that “nobody likes Indians as much as Donald Trump”. The President has denigrated Native Americans by continuously referencing a Senator and 2020 Democratic Presidential primary candidate as “Pochahontas”, including by Tweet. In one Tweet attacking the Senator, President Trump made reference to the 1890 Wounded Knee massacre of hundreds of Native Americans for which Congress formally apologized. Many Native Americans were further offended when the President declared November as “National American History and Founders Month”, even though November had been designated as “Native American Heritage Month” for decades.

It appears that President Trump uses anti-Semitism as a political tool, despite Ivanka, Kushner and their children being Jewish. A number of the President’s Tweets have been anti-Semitic.. President Trump repeatedly indulges in anti-Semitic themes, such as conspiracy mongering and dual-loyalty tropes which question the loyalty to the United States of Jewish Americans. For example, the President trafficked in anti-Semitic memes, including a Tweet that was later deleted of a six-pointed star alongside a pile of cash. President Trump has called Jews “brutal killers, not nice people” and questioned the loyalty to the United States of Jews who vote for Democrats. A host of Jewish groups have condemned the President’s comments on Jews, in particular the multiple references to dual loyalty. In late 2019, the Trump Administration announced an executive order that instructed all government agencies tasked with enforcing anti-discrimination law to “consider” the nonbinding International Holocaust Remembrance Alliance (the “IHRA”) working definition of anti-Semitism. The Order triggers a portion of the federal Civil Rights Act of 1964 that requires educational institutions that receive federal funding not to discriminate based on national origin. The IHRA provides contemporary “examples” of anti-Semitism, including dual-loyalty accusations. Title VI of the Civil Rights Act prohibits discrimination in programs receiving federal support on the basis of race, color or national origin but, unlike many other anti-discrimination provisions, does not reference religion. It has been argued that, if Jews are “just” a religious group, they may not be protected under Title VI. Immigration law has been specifically directed to Jews, among other religious groups, fleeing the Soviet Union. However, discrimination that is based on a “group’s actual or perceived ancestry or ethnic characteristics” or “actual or perceived citizenship or residency in a country whose residents share a dominant religion or a distinct religious identity,” is within the purview of Title VI. An individual who faces discrimination on the basis of race, color, or national origin does not lose protection under Title VI for also being a member of a group that shares common religious practices. Jews are already protected as a “race” under other civil rights legislation. There is a question whether discrimination against Jews in terms of national origin, as opposed to religion, is covered by Title VI. Many American Jews express the view that a reference to Jews as a “nationality” implicitly codifies the dual-loyalty trope. In addition, the IHRA definition of anti-Semitism, which was originally designed for monitoring and data-collection purposes, was not designed to assign civil liability. The view has also been expressed that the executive order could suppress Constitutionally-protected criticism of Israel. Oddly, it has been said that terror events directed at Jews have been motivated by anti-Semitism and a hatred of President Trump, who is accused by White Nationalists of being a “Jew-lover” and having an administration “infested” by Jews.

President Trump has made discriminatory statements regarding Asian-Americans, despite claiming that they are “not racist at all”. For example, the President lauded the internment of Japanese Americans during World War II, one of the darkest events in United States history. The President complained that a South Korean film won the 2020 “Best Picture” Academy Award. President Trump’s reference to the Coronavirus as a “foreign virus” has been said to be evidence of a xenophobic approach to epidemics References by the President in Tweets and otherwise to the “Chinese virus” and the Secretary of State’ use of the term “Wuhan virus” have angered the Chinese government. The use by President Trump of the term “Chinese virus” and the reference by a White House official of the term “Kung-Flu” have been said to be racist and resulted in rhetoric and physical attacks of Asian Americans. When asked a question by a Chinese-American reporter, the President told the reporter to “ask China” and claimed her question was “nasty”. For example, Chinese-Americans have been yelled at, spit on and attacked. In one case, two Chinese-American children were stabbed by a man who said he thought that they were infecting others in a store. A group of law students published an open letter condemning a law professor who they said perpetuated xenophobic stereotypes by speculating in a subsequently-deleted Tweet that Chinese students in his class were responsible for his recent sickness. In response to public criticism, the President posted a Tweet saying that [i]t is very important that we totally protect our Asian American community” but days later Don Jr. posted a karate-themed meme of his father beating the Coronavirus on Instagram with the offensive caption: “Hahahahaha ‘The Kung-Flu Kid.’” This has resulted in a surge of online expression of anti-Chinese sentiment. During the Pandemic, the 2020 Trump Campaign ran an advertisement that is rife with deceptive images and audio in an attempt to portray presumptive Democratic Presidential candidate Joe Biden as being overly friendly to, and supportive of, China. The advertisement included out-of-context remarks and the inclusion of an image of Gary Locke, a United-States born, Asian-American, who is a former two-term governor of the State of Washington and United States Ambassador to China, that does not make clear that Locke is American. Locke responded that “President Trump and his team are fanning hatred…Hate crimes and discrimination against the Asian American community are on the rise. And the Trump team is making it worse.”

Other Religion-based Discrimination
Although much of President Trump’s religious discrimination has been addressed against Muslims, the President has evidenced other religion-based discrimination. For example, President Trump posted Tweets claiming that the President is saving the Christian-based Christmas holiday. President Trump promoted “Merry Christmas” rather than the more inclusive “Happy Holidays” greeting in what has been described as a method to gin up outrage among conservatives. Similarly, the President’s claim that there is a “war” on Thanksgiving has been said to be a sinister approach to generate the impression that White Christians are under siege in the United States. President Trump has also used religion as a basis for policies unrelated to immigration. For example, the Trump Administration promulgated a rule aimed at accommodating religious or moral objections to health care services provided by recipients of federal funds. The rule expanded the conscience provisions in several statutes that address, among other treatments, abortion, sterilization and assisted suicide, and counselling and referrals relating to these services. When challenged, the DHHS attempted to justify the new rules by claiming that the DHHS received a significant increase in complaints by reluctant service providers based on religious grounds but the Court found that factually untrue and therefore found the rule in violation of the APA.

Sexual Identification
President Trump has also evidenced discrimination based on sexual identification. In a series of Tweets that effected a policy statement for the military, President Trump announced a proposal to ban transgender individuals from the military, despite the military having shortly before determined that permitting transgender individuals to serve would not have adverse effects on the military and had announced that such individuals were free to serve openly. In response, the Chair of the Joint Chiefs of Staff said that the prior policy would remain in place until a formal policy memorandum was issued. A slightly revised policy was subsequently made the subject of an executive order. The resulting policy allows a transgender individual who does not have gender dysphoria, which is a disconnect between one’s biological sex and the gender with which one identifies, and has not already undergone a gender transition, to join or serve in the military, with limited exceptions for those currently serving. A group of active-duty transgender service members pre-emptively sued the President Trump. Additional suits followed. Tweets of the President about the policy were referenced in decisions challenging to the policy. In one suit, the Court issued an injunction, saying: The discrimination in this case was certainly of an unusual character…the President abruptly announced, via Twitter – without any of the formality or deliberative processes that generally accompany the development and announcement of major policy changes that will gravely affect the lives of many Americans – that all transgender individuals would be precluded from participating in the military in any capacity. These circumstances provide additional support for Plaintiffs’ claim that the decision to exclude transgender individuals was not driven by genuine concerns regarding military efficacy. (emphasis by the author) An injunction restraining execution of the order was subsequently vacated by the USSC so that the order is in force. However, several suits continue. Positions taken by the DOJ under the Trump Administration in three cases about workplace issues before the USSC provoked a group of DOJ members to express concern about workplace discrimination by the DOJ against members of the LGBTQ community.

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