Conservatives are all atwitter (pun intended) about Twitter’s decision not to allow the sharing of a story published by the New York post about how a top adviser to the Ukrainian energy company Burisma had emailed Hunter Biden in 2015, thanking him for “the opportunity to meet his father” (who was then the VP). For Trumpistas, the story was proof that Joe Biden used his office to help his son in an inappropriate way. For the rest of us, this is discredited Russian disinformation. Even if it were true – which is doubtful – it could not compare in any way to the Trump family criminal enterprise, which has already produced something like 215 indictments. And is bound to produce many more.

Conservatives were running around shouting “censorship!,” which is complete malarkey.

First of all, let me remind conservatives that censorship is something that Government’s engage in, not private companies. The First Amendment after all, establishes that:

Twitter, despite being ubiquitous, is a private, not a public platform.  Twitter could decide, for example, that it would limit itself exclusively to users from IP’s registered in the USA, and exclude everyone else, and there really isn’t anything legally that everyone else could do about it.

Twitter explained that the reasons they blocked sharing of this story is because it included people’s personal information, violated its privacy rules, and violated its policy on using hacked materials. The Senate Judiciary Committee plans to subpoena Jack Dorsey, the CEO of Twitter, to testify before the committee at the end of October regarding the company’s decision to block the article.

What the Senate Judiciary Committee should really be doing is asking why it is that President Liar-in-Chief can defame people on Twitter without any consequences.

Trump’s Defamation of Joe Scarborough

On more than one occasion, President Liar-in-Chief has tweeted or retweeted completely unproven allegations that Joe Scarborough was somehow involved in the tragic death of former intern Lori Klausutis in his Florida district office. Although Scarborough is a “public figure” – which means that under the standard of New York Times v. Sullivan, the person making the false claim (Trump) must make it with “actual malice” (meaning that the person either “knew the statement was false” or “recklessly disregarded whether or not it was true”) – here the claim has been discredited repeatedly by every reputable fact checking agency in the land. And yet, the Liar-in-Chief persists.

If you or I made this claim on Twitter, Joe Scarborough could definitely sue us for defamation. But not President Liar-in-Chief.

Why not?

Well, it turns out that that there is a federal act – the Federal Employees Liability Reform and Tort Compensation Act of 1988 (more commonly known as the “Westfall Act”) which establishes that federal employees retain absolute immunity from common-law tort claims arising out of acts they undertake in the course of their “official” duties.[1] Defamation is such a common-law tort claim.

Now, it may seem absurd that the Liar-in-Chief, tweeting from his personal (as opposed to official) account, would be performing his “official” duties, but federal law has historically taken a very expansive view of what is within the President’s official duties. So, basically, the President can tweet whatever the fuck he wants to tweet – and he pretty much already has – and there are no legal repercussion for the libelous bullshit that he tweets.

Maybe the Judiciary Committee could look into that!

[1] It is understood that the federal government can only be sued to the degree that it allows itself to be sued. This part of the traditional notion of “sovereign immunity,” and is generally true for state governments as well.