The Department of Justice asked the Supreme Court to overturn an appeals court ruling that found former President Donald Trump’s blocking of critics on the microblogging website Twitter violated the First Amendment, saying the ruling was “deeply problematic.”
President Joe Biden, as well as future presidents and government officials, should not be bound by the decision the high court may well have overturned had the question not become moot by Trump completing his term of office, Acting Solicitor General Jeffrey Wall argued in a supplemental brief filed on Jan. 19 in Trump v. Knight First Amendment Institute at Columbia University.
Wall had previously argued that Trump’s ability “to use the features of his personal Twitter account … are independent of his presidential office,” adding that “blocking third-party accounts … is a purely personal action that does not involve any ‘right or privilege created by the State,’” he wrote, referencing a previous precedent.
A three-judge panel of the U.S. Court of Appeals for the 2nd Circuit ruled unanimously in 2019 that Trump’s use of his personal Twitter account, @realDonaldTrump, created “an official channel of communication.”
The feed for that account had been constantly filled with replies from users who taunted and insulted the president, often using expletives, and Trump had locked horns with Twitter management on many occasions.
But because the president established a public forum of sorts, he isn’t allowed to restrict access to it based on a user’s political views, the court reasoned in upholding a 2018 decision by U.S. District Judge Naomi Buchwald, a Clinton appointee. Her decision extended to all public officials.
“This case requires us to consider whether a public official may, consistent with the First Amendment, ‘block’ a person from his Twitter account in response to the political views that person has expressed, and whether the analysis differs because that public official is the President of the United States,” she wrote. “The answer to both questions is no.”
The @realDonaldTrump account meets the Supreme Court’s standards for a designated public forum and preventing political speech is viewpoint discrimination.
“No government official—including the President—is above the law,” she wrote, adding that Trump tweeted about government business on the account.
“The audience for a reply extends more broadly than the sender of the tweet being replied to, and blocking restricts the ability of a blocked user to speak to that audience,” Buchwald wrote.
Calling the rulings unfavorable to Trump “deeply problematic,” Wall argued in his new brief that “the blocking of the individual respondents was not an official state action that can be redressed by the Office of the President.”
“Twitter’s power to unilaterally shut down the @realDonaldTrump account [underscores] the Second Circuit’s error in holding that the account is a ‘public forum.’”
Wall wrote that Trump would cease to be a party to the litigation after Inauguration Day because “respondents sued him only in his official capacity. In an official-capacity suit, the relief obtained by respondents “is only nominally against the official and in fact is against the official’s office,” meaning that when President Trump leaves office, his successor “automatically assume[s] [his] role in the litigation,” he wrote, citing Lewis v. Clarke, a 2017 Supreme Court ruling.
Jameel Jaffer, the Knight Institute’s executive director, argued in a reply brief on Jan. 21 that Trump was the author of his own misfortune and that the 2nd Circuit ruling should be left intact.
“Petitioners are right that the case is moot, but they are wrong about why,” Jaffer wrote.
The case was mooted because Trump repeatedly violated Twitter’s terms of service over a period of four years by pushing “the boundaries of Twitter’s Rules.”