Lawsuit seeks to block Donald Trump from sending ‘presidential alerts’ to phones

Lawsuit argues system would allow Trump or others to disseminate propaganda

PUBLISHED : Tuesday, 02 October, 2018, 12:12pm
UPDATED : Tuesday, 02 October, 2018, 12:12pm

This story is published in a content partnership with POLITICO. It was originally reported by Josh Gerstein on on October 1, 2018.

Three New Yorkers are suing in federal court to try to halt a test scheduled for Wednesday of a system that allows US President Donald Trump or any future president to send alert messages to the mobile phones of all Americans.

The activists filed the suit last week in US District Court in Manhattan, arguing that the system violates their free speech rights and constitutes an unconstitutional seizure of their electronic devices.

The first-ever national test of the “presidential alert” system for mobile phones and similar devices was originally planned for September 20, but it was delayed due to the onslaught from Hurricane Florence.

Wireless phone users have the ability to opt out of most alerts sent under the Integrated Public Alert and Warning System, run by the Federal Emergency Management Agency.

While some users can choose not to receive regional messages and so-called Amber Alerts regarding missing or endangered children, under federal rules, receipt of the top-level “presidential alerts” is mandatory.

In the new lawsuit, J.B. Nicholas, Kristine Rakowsky and Liane Nikitovich contend that the system will effectively turn them into “government loudspeakers” that would allow Trump or others to disseminate propaganda.

A law signed by President Barack Obama in 2016 says that, except for testing, the emergency alert system “shall not be used to transmit a message that does not relate to a natural disaster, act of terrorism, or other man-made disaster or threat to public safety”.

However, the plaintiffs in the suit call those criteria “unconstitutionally vague.”

“Without more specific definitions … officials – including President Trump – are free to define 'act of terrorism' and 'threat to public safety' as they see fit, potentially broadcasting arbitrary, biased, irrational and/or content-based messages to hundreds of millions of people,” the complaint claims.

Nicholas, Rakowsky and Nikitovich accuse Trump of disseminating “weaponised disinformation” on Twitter and say they “don't wish to receive text messages, or messages of any kind, on any topic or subject, from Defendant Trump.”

Justice Department spokespeople did not immediately respond to requests for comment on the suit, which was filed last week and made public by the court on Monday.

The suit was assigned to US District Court Judge Katherine Failla, an Obama appointee.

Although the plaintiffs asked for a preliminary injunction to halt Wednesday's test, she has not yet scheduled any hearings on that motion.

While the plaintiffs filed the case without a lawyer, Nicholas – a freelance photographer and journalist who has worked for major New York City newspapers – has had some success with past litigation he brought on his own.

A suit he filed in 2015 against the New York Police Department over its media-credentialing policies, cleared a major hurdle last year when a federal judge rejected the city's motion to dismiss the case. Nicholas' case has won the backing of professional press photographers and is now being pursued by First Amendment lawyers at law firm Cahill, Gordon & Reindel.