Hacker News Reader

Comment by jakelazaroff | Hacker News Reader

> The words of the President of the United States have to be allowed no matter what.

> Twitter shouldn’t even get into this game. They should allow any content that is legal under US law.

And if the President of the United States were to tweet something illegal?

Impossible. The President has absolute freedom of speech. He is the elected head of the Executive branch. To read any legal limitation on his ability to speak his mind is to allow the other branches of government to unconstitutionally limit his powers. No other branch of government can claim that authority over him.

I see that sort of feeling a lot. The president is not constitutionally incapable of committing crimes; that would be absurd. He is only able to stop enforcing laws in specific cases, arguably including his own. That’s a big difference. Among other things, it means that (1) his successor could reverse that decision and prosecute him and (2) Congress can take matters into their own hand via the impeachment route.

So, yes, Presidents can definitely break the law, including laws that have to do with speech. However, I’m pretty sure the President hasn’t come within a mile of that so far. The First Anendment is pretty mighty.

> The president is not constitutionally incapable of committing crimes

I doubt the president will ever be arrested or tried in a traditional court while holding office. If the president was literally murdering people in public, Congress would have to have an emergency session, impeach the president, remove the president from office, then there'd probably be a trial somewhere that got appealed all the way up to the Supreme Court to decide if it was a valid trial.

"The Constitution does not answer every question. It includes detailed instructions, for instance, about how Congress may remove a president who has committed serious offenses. But it does not say whether the president may be criminally prosecuted in the meantime."

https://www.nytimes.com/2017/05/29/us/politics/a-constitutio...

> So, yes, Presidents can definitely break the law, including laws that have to do with speech.

There's a legal theory that the president, while serving the duties of the office, is given certain immunities. This is why the president doesn't always respond to subpoenas and why the local government can't issue a search warrant for Air Force One, etc.

caveat: I am not a lawyer, though from my reading this isn't a matter of settled law anyway, so even lawyers are speculating.

There are definite immunities at play; the comment I responded to seemed to imply that there was a blanket speech immunity, and the reasoning it provided would have made it a complete blanket immunity. That’s what I was saying wasn’t the case.

> his successor could reverse that decision and prosecute him

I agree with most of what you said but are you sure about this part?

Does the US not offer protection against retroactive application of new laws?

Yes, the ex post facto clause should provide immunity from prosecution in such cases (IANAL). But that’s not what I was trying to say. I was saying that the President could conceivably break an existing law, not prosecute himself, and then have his successor prosecute him.

Ah, I see. Thanks for clarifying.

This is empirically untrue. Bill Clinton was charged with perjury and obstruction of justice — both limitations on freedom of speech — during his time as President [1], although he was eventually acquitted.

[1] https://en.m.wikipedia.org/wiki/Impeachment_of_Bill_Clinton

Just to clarify what 'acquitted' applies to, I would note that President Bill Clinton was acquitted of the articles of impeachment by the US Senate.

He settled the sexual harassment lawsuit with Paula Jones during appeal and agreed to a suspension of his license to practice law after being held in civil contempt of court by Federal District Judge Susan Webber Wright in separate proceedings.

There is clearly a difference between lying under oath and having opinions.

Further, impeachment proceedings are 100% political, not legal. Grounds for impeachment are whatever half of the House of Representatives, and 2/3rds of the Senate, say they are.

> There is clearly a difference between lying under oath and having opinions.

You're shifting the goalposts here. We're discussing a hypothetical situation in which the President tweets something literally illegal.

> Further, impeachment proceedings are 100% political, not legal.

The aforelinked article about Bill Clinton's impeachment also mentions that while in office, he was cited for contempt of court — another limitation on freedom of speech — by a federal judge.

> Further, impeachment proceedings are 100% political, not legal.

This is just straight up incorrect. If you read the Constitution, it states in Article I Section 2:

"The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment." [1]

Then in Section 3:

"The Senate shall have the sole Power to try all Impeachments...and No Person shall be convicted without the Concurrence of two thirds of the Members present." [2]

Checks and balances are political now? Hoooo boy.

[1] https://genius.com/1290855

[2] https://genius.com/4027445

You misunderstand me. What I’m saying is that the House and Senate could impeach a President for smiling too much if they wanted to. The requirement that it be for “crimes” is meaningless except politically.

Richard Nixon once tried the "it's not illegal if the President does it" approach. It didn't work out so well for him.

There are plenty of things the President of the United States -- any President -- could say on Twitter that would justifiably result in impeachment and conviction of a criminal offense.

allow the other branches of government to unconstitutionally limit his powers. No other branch of government can claim that authority over him.

The Constitution explicitly grants the other two branches of the federal government power to put the President on trial for alleged criminal offenses and convict him. The procedure has even been used twice, though both times it ended in acquittal. It'd be three times, and probably one conviction, if Nixon hadn't resigned.

The President of the United States is not a king who gets to be above the law. And even in the English legal system we derive a lot of principles from, the king was, as Sir Edward Coke famously pointed out, king under law.

Freedom of speech does not extend to private entities such as twitter.

It does unless Citizens United v. Federal Election Commission is outdated [0].

[0]https://ballotpedia.org/Citizens_United_v._Federal_Election_...

That decision lifted a restriction preventing private entities from running political advertisements in certain situations. What people generally mean (and indeed, what dawnerd means here) when they say "freedom of speech does not extend to private entities” is that even if speech is legal, a private entity has no obligation to host or disseminate it.

Is this a common phrase? I googled variations of it and only turned up less than 10 results.

If that's what it means, then yes, I agree that private entities don't have to host it.

Not necessarily that exact wording, but yes: in the U.S. at least, this has been a popular topic recently with regard to things like Donald Trump on Twitter, NFL players kneeling during the national anthem, Google's firing of James Damore, removal of white supremacist content from various services, etc.

>Freedom of speech does not extend to private entities such as twitter.

I was responding specifically to this claim:

>And if the President of the United States were to tweet something illegal?

Shifting the goal posts mid conversation is incredibly dishonest. You can see my other replies on the larger thread for the reason why Twitter should not censor him, even though they legally could.

I spoke too loosely here. What I mean to say is that, even if the First Amendment didn’t exist, the President must obviously be immune from any restriction on any of his speech that would be even a barely plausible basis for making policy, persuading voters and other elected officials, exercising his authority over the executive branch (especially the parts closest to him), wielding the country’s international leverage. His immunity probably cuts into some areas currently prohibited despite the First Amendment as well, like obscenity, some kinds of financial crimes (e.g. improper disclosures about public companies), workplace harassment, discrimination in hiring and managing the White House Office and cabinet, etc.

He can of course be impeached for any of those things. The President can be impeached for any reason. The only real requirement is that 1/2 of the House and 2/3 of the Senate agree to it. They are the only and final arbiters of impeachment.

Reply on news.ycombinator.com