Nora Benavidez: First Amendment rights—if you agree with the President
Third, the president accused another group of unlawfully aiding the protesters: He tweeted, “The Lamestream Media is doing everything within their power to foment hatred and anarchy,” describing them as “truly bad people with a sick agenda.” Trump made these pronouncements even as videos emerged of police targeting journalists and media crews covering the protests, deploying tear gas and rubber bullets. David Kaye, the UN special rapporteur on freedom of expression, condemned the “appalling” attacks and criticized Trump for contributing to “an environment ready for such abuse.”
Fourth, Trump has tweeted ultimatums to cities and states, urging mayors and governors to “get tough” and “do more to restore order,” calling out Minneapolis Mayor Jacob Frey for allegedly falling down on the job, and threatening to send the U.S. military to “step in and do what has to be done.” His statements culminated in a phone call on Monday with state governors during which he berated them for being “weak,” encouraged the deployment of more aggressive tactics, and repeatedly demanded arrests and prosecutions.
The natural inclination is to draw a distinction between the president’s speech and the president’s actions—to separate the chaff from the wheat, the empty pronouncement from the concrete government response. For instance, when President Trump tweeted Sunday that “the United States of America will be designating ANTIFA as a Terrorist Organization,” journalists and legal experts moved to clarify why he lacks the legal capacity to do that. As Maggie Haberman and Charlie Savage have explained in The New York Times, “antifa” is not an organization but a loosely defined left-wing movement. And the U.S. has no domestic terrorism law to speak of; only foreign entities can be deemed terrorist organizations under existing federal law.
That the president is wrong about the law, however, doesn’t render his speech empty of legal import. Haberman and Savage’s analysis concludes it is “not clear that Mr. Trump’s declaration would have any real meaning beyond his characteristic attempts to stir a culture-war controversy, attract attention and please his conservative base.” But Trump’s tweets are imbued with “real meaning” by virtue of his office and how people in positions of legal authority understand that office.
Mary Anne Franks: The utter incoherence of Trump’s battle with Twitter
This is obvious enough from the standpoint of formal government machinery. A flank of political appointees at the helm of federal government agencies stands ready to address the intent behind the president’s stated goals. Attorney General William P. Barr, for instance, followed up Trump’s “antifa” tweet by issuing a written statement calling out protester violence as the work of domestic terrorists and declaring that the FBI would partner with state and local police to identify them.