By Amy Howe
on April 5, 2021
at 3:14 p.m.
Less than three months after former President Donald Trump was finally banned from Twitter, the Supreme Court ended a lawsuit over Trump’s personal Twitter account, cast a lower court ruling against the former president, and ordered that court to dismiss the case the rationale that it is controversial – that is, no more living controversy.
The lawsuit was filed in July 2017 by the Knight First Amendment Institute and seven people who Trump blocked on Twitter after criticizing the president or his policies. Plaintiffs alleged the lockdown on Twitter violated the first change, and the district court agreed. The US Circuit Court of Appeals upheld this decision.
Trump was represented by former acting U.S. Attorney General Jeffrey Wall, the federal government’s chief attorney on the Supreme Court at the end of the Trump administration, and asked judges to weigh up last summer. Wall argued that the 2nd Circle decision “ignored the critical distinction between the President’s (sometimes) official statements on Twitter and his always personal decision to prevent plaintiffs from viewing and responding to his tweets . The lower court ruling, he wrote, would limit officials’ ability to “protect their social media accounts from harassment, trolling or hate speech without invasive judicial scrutiny”. With regard to the president in particular, Wall said, the Supreme Court should have the final say on “where to draw the line between the president’s personal decisions and official behavior.”
Plaintiffs urged the judges to stay out of the dispute, telling them that the lower court “correctly applied a well-established precedent” when it concluded that Trump’s actions to lock his Twitter account against the first change violated. Evidence in the case shows that the president’s personal Twitter account “acts as an official source of government news and information and a forum for speeches by, before and about the president”. In addition, the decision of the 2nd circuit does not conflict with the decision of another court of appeal – an important factor for the judges in deciding whether a case should be taken up.
In a brief filed in January, the Trump administration notified judges that while the 2nd Circle decision was worthy of review, the case would become contentious once Joe Biden succeeded Trump as President on Jan. 20. Trump had been sued as president, rather than in his personal capacity, the administration said, but Biden would have no control over Trump’s Twitter account. (Twitter’s proposed ban on Trump’s Twitter account on Jan. 8 did not put the case up for discussion, as Twitter could always reverse that decision.) Therefore, the Trump administration argued that the court should have the 2nd circuit decision should set aside in favor of the challenger and return the case with instructions to dismiss it – a process known as Munsingwear Vacatur. The decision should not stand, the administration claimed, and serve as a precedent for future disputes if it “might not have survived this court’s review, but” chance by chance “”.
After reviewing the case at eleven consecutive conferences, the court eventually followed up on the Trump administration’s suggestion and sent the case back to Circuit 2 with instructions to dismiss it as in dispute. Judge Clarence Thomas wrote a lengthy statement (possibly explaining, at least in part, the delay in clearing the case) approving the court’s decision to overturn the 2nd Circle decision against Trump, but stressed that the case “the highlights the main legal difficulties associated with digital platforms – namely that applying old teachings to new digital platforms is seldom easy. “Thomas suggested that the judges” will soon have no choice but to look into applying our legal teachings to highly concentrated privately owned information infrastructures such as digital platforms, “but agreed that Trump’s case was not the right one to approve to do.
This post was originally published on Howe on the Court.