Genoteca

Finally, one answer is to recognize an exception allowing a new use of color of federal law doctrine. The issue for the public is how to recognize when federal public officials are acting within the trappings of their office under allegedly personal circumstances, and how to hold the government accountable for when those public officials abuse their office to abrogate the constitutional rights of others under the guise of personal, not public, pretenses.

In pondering these issues, consider the duties lawyers owe to prospective clients under section 14 of the Third Restatement of the Law Governing Lawyers (the “Restatement”),³⁵⁶ stating:

A relationship of client and lawyer arises when: (1) a person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person;

and either (a) the lawyer manifests to the person consent to do so; or (b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services; or (2) a tribunal with power to do so appoints the lawyer to provide the services.³⁵⁷

In a comment dedicated to the rationale behind this rule, the Restatement makes clear that lawyers should be “held to responsibility of representation when the client reasonably relies on the existence of the relationship.”³⁵⁸ It is this aspect of the rule in particular that could provide a solution to the issue of ambiguous federal public official activity in cases where the line between official and personal action is murky.

356 RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 14 (AM. LAW

INST.2010).

357 Id.

358 See id. cmt. b.

A rule that would address the glaring pocket of absent protection discussed earlier in this Part might look similar to that of the Restatement’s section 14:

A federal official acts in their official capacity on behalf of the government when: (1) a person manifests to the official the person’s belief that the official is acting in their official capacity; and either (a) the official manifests to the person consent that they are; or (b) the official fails to manifest lack of consent that they are, and the official knows or reasonably should know that the person reasonably relies on the official’s actions as representative of the government’s; or (2) an agency or branch of government with power to do so specifies a circumstance under which the official is deemed to have acted in their official capacity on behalf of the government.

Under such a rule, public federal officials are held to their actions that provoke reasonable reliance from others that they are indeed acting in their official capacity. Assume the President had not admitted to using his personal Twitter account for primarily official purposes. If others reasonably relied on his representation (though non-explicit) that his personal Twitter account was official, plaintiffs bringing a viewpoint discrimination claim would be entitled to rely on the official representation of the account as governmental, thus opening the doors to a constitutional claim against the government.

While some might argue that a public official’s relationship with their constituents is of a different nature than that of a lawyer’s relationship with their clients—which is admittedly true—more than a few similarities exist. For one, just as lawyers are the agents and fiduciaries of their clients,³⁵⁹ so too should public officials be the fiduciaries of their constituents. It is axiomatic that public officials are elected by their constituents to represent their interests in government. It is not a grand leap to

359 See id.§16(3) (stating that lawyers owe their clients fiduciary duties).

suggest that such a duty includes an agency relationship, with constituents acting as the principal.

Judge Posner, in the U.S. Court of Appeals for the Seventh Circuit decision Burdett v. Miller, explained that “[a] fiduciary duty is the duty of an agent to treat his principal with the utmost candor, rectitude, care, loyalty, and good faith—in fact to treat the principal as well as the agent would treat himself.”³⁶⁰ He went on to explain that “[t]he common law imposes that duty when the disparity between the parties in knowledge or power relevant to the performance of an undertaking is so vast that . . . otherwise the principal would be placing himself at the agent’s mercy.”³⁶¹ He provides examples of fiduciary duty, such as a guardian and his minor ward, or a lawyer and his client.³⁶²

Does not a federal public official, an employee of the government that protects us, owe a duty similar to that of a fiduciary duty, namely, to treat their electing constituents “with the utmost candor, rectitude, care, loyalty and good faith”?³⁶³ While many might grouse that federal officials, much less politicians, have hardly a reputation for their candor and rectitude, loyalty and good faith, this only provokes a stronger rationale for imposing the duty in the first place. Lawyers too have hardly the glittering reputation in popular culture lately, but as Judge Posner pointed out, the disparity between their knowledge and power and the client’s in legal matters necessitates that they behave according to the fiduciary duty.³⁶⁴ Otherwise, a client would be at the lawyer’s mercy in all legal matters brought to the lawyer’s attention.³⁶⁵

So too is there a large disparity between the power and knowledge a federal public official has over a constituent’s in matters of governance and politics. Constituents are at the public official’s mercy, with little authority and resources to provide meaningful oversight over, say, a governor or the President. Thus, this Note suggests that rules should be crafted tightening the

360 957 F.2d 1375, 1381 (7th Cir. 1992), as amended on denial of reh’g (May 1, 1992).

361 Id.

362 See id.

363 Id.

364 Id.

365 Id.

fiduciary relationship between a federal public official and the constituents they govern for the constituents’ benefit.

This Note does not have the time nor resources to dig into an overhaul of political accountability to constituents. Rather, it merely provides a survey of a range of factors for courts to consider when taking on a government social media viewpoint discrimination claim. These factors included the Davison factors from Section II.C, Judge Buchwald’s recommendation in Section III.A, Twitter’s Terms and Conditions policy from Section III.B, the social media best practices for several federal agencies in Section III.C, and the benefits of treating elected public officials as the fiduciaries of their constituents discussed in Section III.D.

CONCLUSION

As discussed in the Parts above, the President’s personal social media account functions as a designated public forum and the President practiced viewpoint discrimination in maintaining that forum. Courts will find that the recent Davison decision, while instructive, uses a method to get at the government action element of a viewpoint discrimination claim that cannot be applied to the President. However, a color of law theory is unnecessary in the context of the President’s Twitter activities, given his defense team’s stipulation to facts that the President primarily uses his personal Twitter account for official purposes. Thus, the President’s personal Twitter account is self-avowedly official, attributed to his governmental office, and open to constitutional protection on viewpoint discrimination grounds. It remains, however, to be seen how the problem in Part II of this Note would be resolved if the President had not explicitly marked his own Twitter posts as being official. What would fill the gap in the Davison color of law analysis? As suggested in Part III of this Note, there are a variety of sources for courts to look to when considering a creative solution to this latest problem in free speech cases.