Published by The Lawfare Institute
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In the month before the presidential election, soon-to-be First Lady Melania Trump announced her priority issue should her husband be elected President: cyberbullying. She apparently wasn’t joking. “Our culture has gotten too mean and too rough,” she said in describing the cyberbullying initiative she meant to lead. “We have to find a better way to talk to each other, to disagree with each other, to respect each other.”
A month later, President-elect Donald Trump—apparently still smarting from criticisms not yet silenced by his victory—used his Twitter account to attack Chuck Jones, a union leader who condemned the President-elect’s much-publicized deal with Carrier Corporation to ostensibly prevent jobs at an Indiana manufacturing plant from being shifted overseas.
In an interview with The Washington Post, Jones had told the paper that Trump “lied his a-- off” about the number of jobs saved by the deal. In response, Trump tweeted that Jones had “done a terrible job representing workers” and blamed him for job losses, prompting a barrage of threatening and harassing phone calls against Jones. “Nothing that says they’re gonna kill me,” he clarified to MSNBC, but threats along the line of “you better keep your eye on your kids. We know what car you drive. Things along those lines.” An unnamed Republican strategist quoted by The New York Times described the incident as one of “cyberbullying.”
The story does not, of course, begin with Jones, and it doesn’t end with him either. Recently, Politico reported that Republican lawmakers are hesitant to speak out against Trump for fear of being fingered for harassment either by Trump himself or by pro-Trump media outlets—including Breitbart, the white nationalist online publication formerly helmed by Trump’s campaign CEO and advisor Steve Bannon. According to Politico, these threats represent “a novel form of party message discipline.”
At its mildest, and when addressed to elected Republican legislators, this Trump-induced and -inspired harassment might indeed represent a particularly extreme and ugly method of message discipline. But at its most extreme, it has the potential to become real violence. And just as we should keep a sharp eye out for signs that a Trump administration may be slouching toward authoritarianism—not because that danger is immediately present, but because the potential for it is real—we should also watch for signs that Trump-inspired online harassment is veering into state calls for punishment of critics or dissenters.
Over the course of his emergence as a credible political figure during the past year, Trump has routinely used his Twitter account to pinpoint particular public and private citizens with whom he has become displeased. During the campaign season, Trump’s targets included figures as varied as former Fox News anchor Megyn Kelly and Lauren Batchelder, an 18-year-old college student who asked Trump a pointed question at a New Hampshire political forum in October 2015. More than a year after Trump described Batchelder as an “arrogant young woman” and a possible “plant” from Jeb Bush’s primary campaign, she is still receiving threats of death and sexual violence through social media more than a year later. Frightened by the threats she was receiving in response to Trump’s tweets, Kelly began to travel with a security detail.
Before Trump, Twitter’s most high-profile troll was arguably Milo Yiannopoulos, Breitbart’s technology editor and resident provocateur. Yiannopoulos has made headlines recently for his quarter-million book deal with Simon & Schuster—a topic of controversy owing primarily to his being permanently banned from Twitter in July 2016 for harassment. Yiannopolous incited a wave of racist online abuse directed at the actress Leslie Jones for her role in the Ghostbusters remake, an unremarkable movie that was transformed into an object of cultural alarm among revanchist online communities for the film’s largely female cast and Jones’s role as a black woman. Heroic ghost hunters, you see, have to be male, and of course they also have to be white.
There’s a relationship between Yiannopoulos and Trump that goes beyond the relationship between Breitbart and the Trump campaign. It has to do with the way the two use Twitter to gin up hatred against and harassment of individuals while always maintaining plausible deniability. Yiannopoulos (and Breitbart) protested Twitter’s conclusion that he had “participat[ed] in or incit[ed] targeted abuse of individuals”—and to be sure, he never tweeted any explicit instruction to anyone to direct racist bile to Jones. But it’s very difficult to read his tweets as anything other than an effort to identify Jones as a target for his followers, egg them on in harassing her, and all the while maintain just enough detachment to allow him to turn around at the end of the day and ask, “Who, me?”
As with Yiannopoulos, Trump’s Twitter harassment game is simple: identify a target, point the mob in the right direction while maintaining plausible deniability, then sit back and watch. In a piece on whether Twitter would be justified in suspending Trump’s account, New York Times technology reporter Farhad Manjoo recently argued that the President-elect “has appeared to tack just inside the lines of the service’s rules of conduct.”
And lest we be inclined to argue that the President-elect may be tweeting innocently, not intending the consequences for his targets, Megyn Kelly’s account of her experience with Trump over the course of the campaign contains a revealing anecdote. “I almost unleashed my beautiful Twitter account on you,” Trump told her at one point, “and I still may.”
With Trump next week to take the oath of office as President, his use of Twitter to rally abuse with a wink and a nod against those whom he perceives as having wronged him raises serious questions about state action in the stoking of harassment and, in more extreme cases, physical violence.
To understand the danger posed by Trump’s Twitter account, consider this nerdy graph, which plots targeting of individuals conducted in the name of a political leader outside the scope of the leader’s legal authority along two axes: the intensity of the violence on the X axis and the degree to which the leader is involved in ordering the targeting on the Y axis. The intensity can range from comparatively mild actions, such as Twitter harassment, to the most extreme possible—murder or torture. Setting aside actively negative involvement like, say, sincere disavowal or prosecution of perpetrators, the leader’s link to the violence can range from silence, to tacit encouragement, to specific orders to target a group or individual.
Think of Henry II’s fatally vague exhortation: “Will no one rid me of this meddlesome priest?”
In the case of Philippine President Rodrigo Duterte, for example, we would find the violence conducted over the course of Duterte’s antidrug campaign located in the far upper right: the campaign involves extrajudicial killings apparently ordered directly by the president himself (and to hear Duterte tell it, in some cases carried out by the president himself too.) Death squads and paramilitary organizations would, generally, be located in or near this corner. The online harassment encouraged by Trump (and Trump-adjacent voices like Breitbart) would be somewhere near the bottom left corner, relatively mild in their effects (a lot of harassment, unpleasant criticism, and abuse) and ambiguously instigated, or at a minimum not condemned, by Trump himself.
This conceptualization visualizes the range of ways that, as things now stand, Trump can contribute to or encourage harassment, from direct to indirect. He can type out a name and an insult and let his Twitter followers do the work. He can also cultivate a political environment among his supporters in which this kind of harassment is understood as something to be endorsed and cultivated as a tactic, even in the absence of direct encouragement from the man himself. In fact, he’s already done so: witness the relentless and frightening harassment of anti-Trump conservative David French, whom Trump never mentioned by name but whose well-publicized abuse, like the abuse of similar anti-Trump figures on the right, the candidate never condemned either.
Trump begins his presidency near the bottom left of the chart I’ve described, but there is no assurance that he will remain there; this sort of thing is a matter of gradations over time. In light of widespread concerns about Trump’s authoritarian tendencies, we are at one end of a dangerous spectrum, along which we find an increasing disrespect for the right of political opposition and a presidency constrained by law. This doesn’t mean that we will necessarily find ourselves moving toward the more dangerous end of the spectrum, but it does mean that we need to keep an eye on the quivering of the needle.
Even if the needle doesn’t move, the mere prospect of a President using Twitter to tacitly encourage attacks on private citizens and lawmakers who oppose him is unpleasant enough, recalling a kind of mob rule demagoguery.
In the case of private citizens, it could lead to a chilling effect in the public square of the internet, with commenters hesitating to criticize Trump for fear of harassment. In the case of Republican legislators, it is also a novel, and particularly nasty, form of political engagement. The online culture of harassment harnessed by Trump has lowered the bar to political involvement and made the possibilities for that involvement uglier, promoting a form of trolling as political participation. But it’s a strange kind of political involvement. Trolling, after all, requires very little effort and allows for the semi-ironic detachment so beloved of certain corners of the internet. There’s no longer any need to drive miles to an hours-long Tea Party meeting, or even to reveal one’s name to put pressure on an elected official who is straying from the leader’s course.
As of last week, we’ve already seen a whisper of what this could look like. On January 6th, Wikileaks tweeted a proposal to build a “database” of personal information belonging to the users of verified Twitter accounts—accounts that Twitter has determined to be authentic, and which largely belong to journalists and public figures. The tweet was immediately interpreted as a threat to “dox” online commentators unfriendly to Wikileaks founder Julian Assange, collecting the personal details of those writers in order to coordinate harassment against them on a massive scale should they speak out. (Wikileaks has since deleted the tweet and claimed that the purpose of such a database would be to construct “metrics for influence networks based on proximity graphs,” which is not particularly reassuring.) Given Assange’s recent alliance with Donald Trump and his role in disseminating hacked Democratic Party information on behalf of the Russian government during the presidential election, it’s not a stretch to imagine how such a database could be used in the service of Trump—with or without his direct involvement or knowledge.
Exacerbating the problem of Trump’s Twitter harassment is the underlying problem that his campaign effectively handed a microphone to extremist voices online and elsewhere. As Benjamin Wittes and I argued in the days before the election, the campaign “provided a baseline undemocratic ideation to hundreds of millions of people and also provided a platform through which extremists, both violent and non-violent, can recruit and cultivate.” So Trump criticizing someone on Twitter is very different in effect from, say, Obama doing so. Attacking opponents of Trump online is blood sport that many have shown themselves to greatly enjoy, and which may also serve as a gateway form of political action into more extreme and violent behavior, especially if Trump takes no steps to condemn this activity or if he increases his own involvement.
In other words, to return to the two axes, we could see a shift to the right but no movement upward (an increase in the intensity of harassment with no increased involvement on Trump’s part). Or, alternatively, the directness of Trump’s involvement could climb with—or, conceivably even without—some movement toward greater intensity, including even physical violence. Both these possibilities are concerning.
The nightmare scenario is that we see increase in both Trump’s involvement and in the degree of harassment intensity, and that is where this problem begins approaching the threshold of extrajudicial punishment. To be clear, I don’t expect that we will see this (I certainly hope not). But we should be clear-eyed in our awareness that state-sponsored violence is what lies at the other end of the spectrum we are on. Just as we should not fall into the trap of alarmism, we also should not fall into the trap of denial that we’re on this spectrum at all.
All this poses a particularly odd set of legal problems when Donald Trump takes office on January 20th, taking possession not only of the nuclear football but also of the @POTUS Twitter account. Perhaps the two Twitter handles @POTUS and @RealDonaldTrump will, in the spirit of our baffling zeitgeist, become the king’s two bodies—the institution of the presidency and the person who happens to fill it.
In that case, how do we take a threatening tweet posted by @POTUS as opposed to one posted by @RealDonaldTrump? What happens, legally, if someone suffers damages, or is seriously hurt, as a result of the loosing of a mob by either account? Usually in such a situation, we would look to First Amendment doctrine regarding incitement. But coming either from the President or from the institution of the presidency, such a tweet could arguably represent state action and therefore would be outside the scope of the First Amendment entirely. Could a party injured, or merely harassed, as a result of one of Trump’s tweets bring a suit against the government? And if so, for what? Is the President, in whom all executive power is vested, allowed to tweet insults at individual people knowing that the result will be to “unleash my beautiful Twitter account on you”? This is uncharted territory.
This question is particularly vexing because the line between online harassment and offline violence can be difficult to definitively establish. Threats of bombings and shootings during Gamergate, a coordinated online harassment campaign against female video game players, developers, and critics, were credible enough to lead to the cancellation of several public events. David French’s wife acquired a handgun-carry permit after receiving an apparently serious threat over email from an incensed Trump supporter, though the emailer’s promise of violence never manifested. The “Pizzagate” conspiracy theory, which Trump supporters stoked about the Clinton campaign’s supposed involvement in a child sex trafficking ring, resulted in a gunman firing a shot inside a Washington pizza parlor. So when the institution of the presidency is ginning up Twitter harassment against you, it’s not just in very ambiguous free speech territory; it simply isn’t clear whether it is only ginning up Twitter harassment.
If the legal problems here are unusual, driven by the novelty of the perpetrator being President, the underlying problem of online threats and intimidation is not new at all. Women, and particularly women of color, have long raised the alarm about the frightening abuse they’ve received from extremist harassers on Twitter and elsewhere. I’ll leave to another day the question of why exactly we have suddenly developed such solicitude for the plight of online harassment victims when those victims became conservative commentators and Republican legislators. The point is that it was always a serious problem—just a more visible one now that that the President, notwithstanding his wife’s campaign, has proved himself to be a vicious bully.