Trump sued on First and Fifth Amendment grounds over paid Truth Social access

By David Goldman, CNN

(CNN) — President Donald Trump’s expensive subscription for instant access to his Truth Social posts is unconstitutional, according to a federal lawsuit filed Wednesday.

The Intercept and the Freedom of the Press Foundation jointly sued Trump and his White House social media team for restricting their access to the president’s posts on Truth Social. The plaintiffs claim Trump violated their First and Fifth Amendment rights.

Trump frequently uses his company’s platform to announce policy decisions, executive orders, personnel changes and war declarations.

Trump Media, which owns Truth Social, began selling direct access to its application programming interface (API) last quarter. The company said subscribers would get real-time access to Trump’s social media posts and see posts milliseconds after they’re posted. It’s not clear how long the president’s posts are delayed for the general public.

But the length of time to publicize the posts, no matter how short, doesn’t matter, according to Nikhel Sus, chief counsel for Citizens for Responsibility & Ethics in Washington, which represents the plaintiffs in Wednesday’s lawsuit. The fact that a gap exists at all is unconstitutional, he argues.

“There’s no de minimis exception for restrictions on fundamental First Amendment rights,” Sus told CNN. “Even if, hypothetically, the delay was milliseconds, it would be a First Amendment violation.”

The government cannot limit access to speech without legitimate justification, said Katie Fallow, deputy litigation director at the Knight First Amendment Institute.

“There’s no legitimate government interest in doing this,” Fallow said. “Donald Trump and his company may have an interest, but not the government.”

The White House did not respond to a request for comment.

In its first-ever earnings call with analysts Monday evening, Trump Media said it has signed more than 10 customer agreements for Truth API, mostly with high-frequency trading companies. Trump Media said those customers are willing to pay between $60,000 and $100,000 a month for the preferential access.

Trump is by far the most followed and active poster on Truth Social, a platform that has very few active users and has never announced a profit. Clearly, the company – and Wall Street – believe the special access holds significant value.

But Trump may be selling access to something that – despite posting on his own platform – he doesn’t legally own.

“The president’s official statements are not the private data of a company but are owned by the United States under the Presidential Records Act,” Sus argued.

In its complaint, the Freedom of the Press Foundation argued that Truth API could restrict its ability to scrape all the president’s posts and determine which are anti-media arguments – a core product that the group offers. And the Intercept said it risked losing out to competitors on timely news stories.

That’s why the Truth API product may also violate the due process and equal protection clauses of the Fifth Amendment, they argue in the complaint.

“The government can’t set arbitrary access to public information,” said Sus. “The president and his aides are selectively making available statements solely based on the willingness to pay his private company.”

Like many actions taken by the Trump administration, selling special access to the president’s announcements on a platform that he owns raises several novel legal issues, noted RonNell Andersen Jones, law professor at the University of Utah.

The courts will have to tussle with whether subscribers’ timing advantage is so brief that the access for everyone else is functionally identical, she said. But she argued that privately selling access to information that Americans have a constitutional right to shouldn’t be excused as harmless.

The lawsuit also presents a compelling case for the First Amendment right to receive information, she said.

“So much of our free-speech doctrine focuses on the ways we are protected when the government wants to keep us from speaking,” she said. “But we also have a constitutional right to receive information, and this case is sure to be an important one for exploring why that right is so central to a heathy democracy.”

Last month, Democratic Sens. Elizabeth Warren and Adam Schiff urged federal regulators to investigate whether Truth API is legal.

The lawmakers described the plan as a “shocking abuse of the office of the President” and called for the Securities and Exchange Commission to determine if the arrangement violates federal securities law.

“Early access to President Trump’s social media posts for Wall Street firms, wealthy insiders and high-frequency traders will erode investor confidence in basic fairness of the markets,” Warren and Schiff wrote in a letter to SEC Chair Paul Atkins.

CNN’s Matt Egan contributed to this report.

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