Donald Trump may no longer be president of the United States, but the Department of Justice still wants the U.S. Supreme Court to act on a suit over his blocking Twitter users because of their political beliefs.
Back in 2017, his first year in office, the Knight First Amendment Institute and a handful of Twitter users sued Trump after being blocked by the @realDonaldTrump account, which has since been permanently suspended from the social media site. The users argued that Trump used Twitter as a public forum to share official information is his capacity as president and was violating their right to petition the government by blocking them. U.S. District Judge Naomi Reice Buchwald in May 2018 agreed, finding Twitter is indeed a designated public forum and “viewpoint-based exclusion” of the plaintiffs from that forum by the then-president violated the First Amendment. Trump appealed the decision and lost again in the 2nd Circuit, so in August he took his case to the U.S. Supreme Court.
In a supplemental brief filed Tuesday, the DOJ acknowledges that the case is moot now that President Joe Biden has been sworn in, because the plaintiffs only sued Trump in his official capacity, but argues it should still grant certiorari, vacate the 2nd Circuit’s decision and instruct Buchwald to dismiss the suit.
“That this case will become moot upon President Biden’s inauguration underscores the fundamental flaw with the court of appeals’ decision: the blocking of the individual respondents was not an official state action that can be redressed by the Office of the President,” writes Acting Solicitor General Jeffrey B. Wall. He argues that Trump’s decision to block those users didn’t implicate the First Amendment because his actions weren’t only made possible because of his presidential power. In a footnote, the DOJ also argues that “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.’”
The DOJ argues that the opinion is “deeply problematic” and Biden, along with future presidents and other government officials, shouldn’t be bound by a decision the Supreme Court may have struck down had it not become moot on Inauguration Day.
“Allowing the decision below to stand would be harmful, no longer to President Trump, but to the Presidency itself and to other governmental officials,” writes Wall. “[T]he decision below blurs the lines between governmental and personal actions. It exposes federal and state employees to constitutional liability when using their own personal property to speak about their jobs to persons of their own choosing, and thereby limits the ways in which public officials ‘may act in a personal capacity in all aspects of their life, online or otherwise.'”
