WASHINGTON — In a brief filed just before President Trump’s term ended, the Justice Department abandoned its request that the Supreme Court hear a case involving President Trump’s practice of blocking critics from his Twitter account, acknowledging that the inauguration of a new president would moot the case. The Knight Institute filed the case in 2017 on behalf of seven people who were blocked from the @realDonaldTrump account after they criticized the president in comment threads, arguing that the president’s account was a public forum under the First Amendment and that the president’s practice of blocking critics from the account was unconstitutional. Today, the Knight Institute responded to the Justice Department’s brief and specifically to its request that the Supreme Court vacate the appeals court decision holding that Trump’s actions had violated the First Amendment.
“The Justice Department is right that the case is moot, but wrong about why,” said Jameel Jaffer, the Knight Institute’s Executive Director, who argued the case before the Second Circuit. “The case is moot because President Trump’s repeated violation of Twitter’s terms of service led that company to shut down his account and to ban him permanently from its platform. Because it was President Trump’s own voluntary actions that made the case moot, the Supreme Court should leave the appeals court’s ruling in place.”
The district court ruled in May 2018 that the president’s Twitter account constitutes a “public forum” under the First Amendment and that the president acted unconstitutionally when he blocked speakers from that account on the basis of viewpoint. A unanimous three-judge panel of the Second Circuit affirmed that ruling in July 2019, and in March of last year, the Second Circuit rejected a request by the Trump administration for a full-court review of that ruling. The administration petitioned the Supreme Court to review that decision in August 2020. The brief conceding that the case had become moot was filed late on January 19, 2021, by the outgoing Acting Solicitor General. Because the brief was filed by Trump administration officials, it is not clear to what extent it reflects the views of the new administration. Read the brief here.
“The Supreme Court should reject the Trump administration’s last-ditch effort to have the Second Circuit’s decision vacated,” said Katie Fallow, Senior Staff Attorney at the Knight Institute, who argued the case before the district court. “But the truth is that the decision will continue to shape the way that public officials use social media even if it’s vacated. Many other courts have now adopted the Second Circuit’s analytical framework. And there is now widespread recognition that the principles we established in this case are important to protecting the vitality of public forums that are increasingly important to our democracy.”
After the Knight Institute prevailed in the district court, the White House unblocked the plaintiffs as well as dozens of others whom the president had blocked on the basis of viewpoint. The White House refused, however, to unblock two categories of individuals: those who cannot specify the tweet that provoked the president to block them, and those who were blocked before the president took office. In July 2020, the Knight Institute filed a second lawsuit against President Trump and his staff for continuing to block these critics. Read more about this related case here.
The Second Circuit was the second appellate court in the country to hold that a public official’s social media account can sometimes be a public forum under the First Amendment. In January 2019, in a case that Fallow argued, the U.S. Court of Appeals for the Fourth Circuit held that a local public official had violated the First Amendment by blocking a constituent from her Facebook page. Late last year, the Eighth Circuit heard argument in another case involving similar issues; the Knight Institute filed an amicus brief in that case and also participated in oral argument.
Read about the seven plaintiffs—Philip Cohen, Eugene Gu, Holly Figueroa, Nicholas Pappas, Joseph Papp, Rebecca Buckwalter-Poza, and Brandon Neely—who brought the lawsuit against Trump here.
Read today’s brief here.
Read more about Knight Institute v. Trump here.
Lawyers on the case include, in addition to Jaffer and Fallow, Carrie DeCell, Alex Abdo, and Lyndsey Wajert of the Knight First Amendment Institute at Columbia University, and Jessica Ring Amunson, Tassity S. Johnson, and Tali R. Leinwand of Jenner & Block.
For more information, contact: Lorraine Kenny, Communications Director, firstname.lastname@example.org.