BOB GARFIELD:  Donald Trump's Twitter account has presented a unique and uniquely confusing challenge for the public. Are his tweets official statements, stream of consciousness musings, both? Last week, Twitter user Russel Neiss released RealPressSecBot, a Twitter bot that automatically reformats the President's tweets into official-looking White House statements, reminding readers that while those tweets might be sandwiched between musings from @TaylorSwift13 and @TheEllenShow, they’re nothing less than proclamations from the highest office in the country. And yet, the question remains, what do they mean legally?

Dahlia Lithwick writes about the courts and the law for Slate and hosts the Amicus podcast. Dahlia, welcome back to the show.

DAHLIA LITHWICK:  Thank you for having me, Bob.

BOB GARFIELD:  On Monday, the 9th Circuit Court of Appeals published a unanimous decision upholding the block on the President's Muslim travel ban, and buried in a footnote was a mention of one of his tweets.

TRUMP TWITTER POST:  “That's right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won't help us protect our people!"

DAHLIA LITHWICK:  What the 9th Circuit was trying to do was parse this question of intention. What was President Trump’s intention in crafting the executive order, now the second executive order that we’re litigating? His lawyers are saying that this travel band isn’t based on animus toward Muslims or even toward these six countries. It’s just based on an anxiety about their vetting procedures, right, that we want extreme vetting and we don't have it. But what Trump had tweeted was that these countries themselves were sort of bad, dangerous countries. And in the text of the tweet, he seems to undermine what his very lawyers are saying.

And so, what the judges effectively did was they said, look, we think there is a sort of tainted motive here. Here are his very own words. All of that undermines the argument that the purposes here are benign. They then go on the cite Sean Spicer [LAUGHS], the White House press secretary, who had confirmed a week earlier that the President's tweets are, quote, “considered official statements by the president of the United States.” So not only are they citing the President, then they’re citing Sean Spicer to say these are official statements, so we are taking them officially.

BOB GARFIELD:  Now, the courts historically, if I’m not mistaken, have paid little mind to campaign rhetoric or dog whistling. They just read the official text and make their judgments accordingly, no?

DAHLIA LITHWICK:  Courts have tried really hard to stay very clear of getting into what Donald Trump's defenders are now calling psychoanalysis. They don't want to get into the heads of legislators. They don't want to probe the dark inner channels of why it is that people do what they do. And so, generally, there is a tendency to stay very clear, as a judge, from this job of what did he really mean when he said this other thing?

Sometimes it does happen, particularly in cases where what we're probing for is an improper animus - is there a religious bias, is there some kind of animus based on country of origin. Then then the courts are actually invited to look past the platitudes and the signing statements and the, you know, anodyne remarks that are being made because the courts have to pierce the actual intention and start to look at things that are said in campaigns or in the media.

BOB GARFIELD:  Examples?

DAHLIA LITHWICK:  There was a constitutional challenge to Obama's executive action on immigration and a Texas judge took very seriously some comments that then-President Obama made at a rally when he was trying to mollify angry protesters. And throughout the lower court opinion, the judge references those remarks and says, look, Obama clearly intended to change the law, therefore, he violated his authority. The Supreme Court has not weighed in on this issue and, in fact, that case about Obama's executive order on immigration, the Supreme Court batted it away and never even got to the issue.

BOB GARFIELD:  There was a legal scholar named Kate Shaw who listed some benchmarks for when to pay close attention to informal statements from politicians.

DAHLIA LITHWICK:  Right. Kate Shaw is a professor at Cardozo Law School in New York, and what she says is a) if the president is showing an intent to enter the legal arena, you start to take it seriously. So if he's opining on something that is a legal question that the court is grappling with, b) if it touches on foreign affairs or c) if it shows real evidence of governmental purpose. In other words, if these tweets are showing the kind of animus or hostility that the courts are probing for, then it's okay to look.

BOB GARFIELD:  And what about simply if informal remarks contradict the official story?

DAHLIA LITHWICK:  Again, that is what we certainly saw when the Texas District Court looked at Obama's executive order on immigration status. So certainly, there is a plausible argument to be made that whenever a president says something that undermines his own litigation strategy or his own Justice Department's interpretation of the law, that can be fair game. I think what it would do is chill an enormous amount [LAUGHS] of presidential speech. We want presidents to talk to us informally. We like the fireside chat. Americans love to have an interaction with the president on Twitter. And so, the idea that each and every time a spontaneous statement by the president is made and there’s some distance between that and a formal policy, the courts are going to jump in. I think it sounds kind of awful to all of us.

BOB GARFIELD:  Once every word you say in public becomes charged, then I guess it does limit your capacity to even be human.

DAHLIA LITHWICK:  That's exactly right. Judges don't get to talk unfiltered, ever, off the record, and when they do they get clobbered for it. And so, I think it’s just the ultimate irony that a bunch of people who have pretty much forced themselves [LAUGHS] to live by judicial canons that say “don't ever talk off the record” are getting to assess whether Donald Trump has to be bound by the same rule.

BOB GARFIELD:  Now, there’s yet one other Twitter wrinkle. When the President decides to block people from getting his messages and block them from being able to reply, the question is, does that constitute government suppression of speech?

DAHLIA LITHWICK:  Last week, the Knight First Amendment Institute at Columbia wrote a letter on behalf of a few of Trump's Twitter followers who had been blocked, and the letter said, look, you don't get to block people from your Twitter feed because you have, by using Twitter the way you choose to use Twitter, Mr. President, created what First Amendment scholars call a designated public forum where you say official things and other people interact with you, and you don't get to ban people. You have elected officials across the ideological spectrum who opt to block Twitter followers or block Facebook followers, and the ACLU has a very serious First Amendment argument that they make that says, look, if you’re not going to go to your town hall meeting, if you're only gonna have a Facebook Live meeting and then you block people, you are effectively blocking them out of maybe the only First Amendment forum to which they have access.

It is a part of this larger debate we’re having about whether Twitter and Facebook and social media are, quote, “real” for speech purposes and how we’re going to think about them in rigorous ways going forward.

BOB GARFIELD:  Thank you so much.

DAHLIA LITHWICK:  Thank you for having me.

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BOB GARFIELD:  Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

BROOKE GLADSTONE:  Coming up, the signs and symbols of an island in search of itself.

BOB GARFIELD:  This is On the Media.