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When Does a Tweet Matter in the Law?

If a president could make law by tweeting, President Trump would have made more laws than any president in history by now.

But a tweet is not a law. It is not an executive order. Trump couldn't even enforce his no-transgender-military tweet.

When it comes to White House jobs, however, the president clearly can tweet that you're fired. In any case, the Twitter president has raised a question about when does a tweet matter in the law.

Lawyer Tweets

Trump has at least framed one issue: what kind of trouble can tweets cause? For a lawyer, it can cause a lot.

For example, it's an ethical problem for an attorney to criticize a judge in the same way Trump has. Rule of Professional Conduct Rule 3.6 makes it sanction-worthy to tweet anything that has a "substantial likelihood of materially prejudicing an adjudicative proceeding."

The problem stems from the public nature of tweets. They are not private messages, which might not warrant the same level of scrutiny.

Anybody Tweets

Trump's biggest legal battle, so far, has been over the travel ban. His prejudicial statements about Muslims -- even before he was elected -- came back to haunt him in the federal courthouses.

Likewise, ill-advised statements can be used against anybody -- especially litigants. A hateful tweet could lead to impeachment or punitive damages at trial. And the liability list goes on:

  • Defamation
  • Harassment
  • Impersonation
  • Confidential information
  • Copyright infringement

Even judges have to remember the wide-ranging impact of tweets. According to reports, one Supreme Court short-lister may have tweeted himself into a corner with the White House.

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