Article by:
Douglas B. McKechnie*

40 Campbell L. Rev. 611 (2018)

INTRODUCTION

The twentieth century marked a turning point in Americans’ understanding of their presidents’ inclinations, motivations, and character.  Americans had historically relied on public appearances, speeches, and press releases to gain a better understanding of a president’s policies and the purposes behind them.  Those appearances, however, were often scripted, such that the American electorate was only exposed to the refined message that the president’s staff would have deemed politically advantageous and most appropriate for public consumption.  In 1940, however, a new option for insight into a president’s personality materialized when President Franklin D. Roosevelt ordered a secret audio recording system be installed in the Oval Office.1  With President Roosevelt’s White House recording system, and those that followed, came the possibility that the American public might have unfettered access to its presidents’ recorded closed-door conversations—recordings that had the potential to change the course of history.

From thoughts about war and peace to politics and prejudice, secret White House recordings have captured presidents’ behind-closed-doors musings.  These intimate moments, memorialized on audiotapes, provide a unique and previously unattainable window into private and raw presidential contemplation and discussions with confidants.3  However, only in the rarest of cases, like Watergate, did the recordings have a direct impact on a sitting president.3  Instead, most of the recordings were released long after the president’s tenure, thus negating their immediate value to the electorate’s democratic decision-making.4  While historically significant, the release of secret White House tapes a decade or more after they are recorded is of little value to passing political judgment on a current president.  President Donald Trump’s use of Twitter, however, has ushered in a new era.  Instead of waiting for the delayed release of secret White House recordings, the American electorate has instantaneous access to a president’s private thoughts.

Secret White House recordings have been revelatory because they captured presidents’ musings in the private sphere.  Because one typically has spatial and cognitive control over the private sphere, one is more likely to engage in candid self-realization.  To the extent this candid self-realization has expressive components that develop individual thought and opinion, the Supreme Court has identified them as having some First Amendment value.  However, it is the public sphere where quintessential First Amendment activity occurs, as the public sphere is the traditional locus of the robust interchange of ideas that leads to the political changes desired by society.  Historically, these spheres have been described as dichotomous and separated.  But social media has the capacity to erode this separation.

The unique nature of social media collapses the private and public spheres. This creates a conduit through which the authentic and candid expressions of the private sphere flow into the public sphere.  And when the President of the United States relies on Twitter as a primary tool for communication, this collapse takes on a democratic dimension.  In the text of a tweet, the electorate has instantaneous access to the president’s authentic temperament and impetus.  This unprecedented access to a president’s contemporaneous, candid thoughts has democratic value in that the electorate can make a more informed, and immediately impactful, political judgment about the president; it need not wait a decade for the secret White House recordings to be released.

This Article has four parts.  Part I discusses secret White House recordings.  It chronicles a sample of the revelatory, candid ideas expressed by presidents in the private sphere.  It suggests that while there is historical value in presidents’ ideas captured in secret White House recordings, they typically lacked any contribution to immediate democratic decision-making by the electorate.  Part II discusses the private and public spheres.  It examines the traditional understanding and importance of the private/public sphere divide and discusses the First Amendment implications of the expressive activity that occurs in each sphere.  Part II also posits that social media collapses the public and private spheres in a way that allows private, self-reflective thought to enter the public sphere.  Part III discusses President Donald Trump’s use of Twitter as a tool for communication.  It highlights some of the more controversial Twitter posts as evidence of his use of Twitter as a forum for candid, publicly accessible contemplation.  Finally, Part IV argues why a president’s use of Twitter can be valuable for American democracy.

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