On May 31, 2017, President Trump tweeted “Despite the constant negative press covfefe” shortly before deleting it. The misspelling later became the inspiration behind the Communications Over Various Feeds Electronically for Engagement Act, also known as the COVFEFE Act of 2017. It was introduced to the House of Representatives on June 12 and although it has not yet passed, the COVFEFE Act has significant implications for First Amendment rights and publicly-elected officials’ use of social media.
Let’s unpack exactly what the COVFEFE Act was trying to do and explore how it remains a pressing First Amendment issue in 2020 and beyond.
Communications Over Various Feeds Electronically for Engagement Act
The COVFEFE Act sought to revise the Presidential Records Act to require the National Archives to preserve presidential tweets and other social media interactions. Introduced by Illinois Representative Mike Quigley, the bill was designed to prevent current and future U.S. presidents from deleting social media posts (on official channels like @POTUS and personal channels like @realDonaldTrump).
As former White House Press Secretary Sean Spicer said, President Trump’s tweets ought to be “considered official statements by the President of the United States.” With this in mind, the creators of the COVFEFE Act argued that social media posts ought to be preserved by the National Archives (even if the posts were eventually deleted), per the requirements outlined in the Presidential Records Act.
Is Social Media Legally Classified as a Public Forum?
There are serious First Amendment implications surrounding the COVFEFE Act, including the recent lawsuit, Knight First Amendment Institute v. Trump, in which the plaintiffs successfully argued that the “public forum” nature of social media meant that President Trump blocking users constituted a violation of their First Amendment rights.
In the first legal decision, Judge Naomi Buchwald stated, “This case requires us to consider whether a public official may, consistent with the First Amendment, “block” a person from his Twitter account in response to the political views that person has expressed, and whether the analysis differs because that public official is the President of the United States. The answer to both questions is no.”
The Second Circuit upheld the lower court’s decision in July 2019, which led to new lawsuits against other elected public officials, such as Representative Alexandria Ocasio-Cortez, who had blocked some people from viewing her Twitter account at the time.
Although the COVFEFE Act is still just a proposed piece of legislation, it seems important that all citizens – regardless of their political beliefs or affiliations – ought to be able to view every public official’s social media posts. The “public forum” nature of social media is still under consideration in countless legal battles across the country, and regardless of political party or level of public office, our elected officials have a Constitutional obligation to remain transparent in their interactions with the public, even when they would rather block someone who disagrees with them.
