Taking Moot to a Whole Moot Level

Overruling every case President Trump was involved in is getting silly.

MSNBC (“Supreme Court erases ruling against Trump over his Twitter account“):

The Supreme Court on Monday erased a federal appeals court decision holding that former President Donald Trump violated the Constitution by blocking his critics on Twitter.

The justices vacated the decision from the 2nd U.S. Circuit Court of Appeals and sent it back to the lower court with instructions to dismiss the case as “moot,” or no longer active, now that Trump is a private citizen. The action means the lower court’s decision will no longer bind future judges.

A three-judge panel of the 2nd Circuit held unanimously in 2019 that Trump was acting in his official capacity when he used Twitter’s block feature. By doing so, the court said, Trump was effectively excluding individuals from a public forum, in violation of the First Amendment.

Monday’s announcement came in an order list and without a written explanation of the court’s reasoning. There were no noted dissents.

Justice Clarence Thomas wrote in a concurrence that he agreed with the decision to vacate the 2nd Circuit opinion given that Trump no longer held office.

Thomas said the petition highlighted the “principal legal difficulty that surrounds digital platforms— namely, that applying old doctrines to new digital platforms is rarely straightforward.”

“Respondents have a point, for example, that some aspects of Mr. Trump’s account resemble a constitutionally protected public forum,” Thomas wrote. “But it seems rather odd to say that something is a government forum when a private company has unrestricted authority to do away with it.”

On its face, this ruling is simply baffling.

Yes, the case is now moot, for two reasons. First, Trump is now a private citizen, so his tweets are no longer possibly official actions. Second, Twitter banned him from the platform, so he can’t block anybody. But that should simply mean the case should no longer go forward, not that the original precedent—which took place when Trump was President of the United States and had full Twitter privileges—should be thrown out.

Unless the argument is that, until the Supreme Court rules, the case isn’t over. But that’s an odd stance to take, indeed, since the Courts of Appeal are the final resting ground for all but 80ish cases a year.

UPDATE: SCOTUSBlog’s Amy Howe provides a nice roundup.

The lawsuit was filed in July 2017 by the Knight First Amendment Institute and seven individuals whom Trump had blocked on Twitter after they criticized the president or his policies. The plaintiffs alleged that blocking them on Twitter violated the First Amendment, and the district court agreed. The U.S. Court of Appeals for the 2nd Circuit upheld that ruling.

Represented by former Acting U.S. Solicitor General Jeffrey Wall, the federal government’s top lawyer in the Supreme Court during the end of the Trump administration, Trump asked the justices to weigh in last summer. Wall contended that the 2nd Circuit’s decision disregarded “the critical distinction between the President’s (sometimes) official statements on Twitter and his always personal decision to block” the plaintiffs from seeing and responding to his tweets. The lower court’s ruling, he wrote, would limit the ability of public officials to “insulate their social-media accounts from harassment, trolling, or hate speech without invasive judicial oversight.” Particularly when it comes to the president, Wall concluded, the Supreme Court should have the final word on “where to draw the line between the President’s personal decisions and official conduct.”

The plaintiffs urged the justices to stay out of the dispute, telling them that the lower court had “correctly applied well-settled precedent” in concluding that Trump’s actions in blocking them from his Twitter account violated the First Amendment. The evidence in the case shows, they wrote, that the president’s personal Twitter account “functions as an official source of news and information about the government, and as a forum for speech by, to, and about the President.” Moreover, they added, the 2nd Circuit’s ruling does not conflict with the decision of any other court of appeals – an important factor for the justices in determining whether to take up a case.

In a brief filed in January, the Trump administration told the justices that, although the 2nd Circuit’s decision was worthy of their review, the case would become moot once Joe Biden succeeded Trump as president on Jan. 20. Trump had been sued as the president, rather than in his personal capacity, the administration explained, but Biden would not have any control over Trump’s Twitter account. (Twitter’s Jan. 8 suspension of Trump’s Twitter account, the administration suggested, did not make the case moot because Twitter could always reverse that decision.) Therefore, the Trump administration argued, the court should vacate the 2nd Circuit’s decision in favor of the challengers and send the case back with instructions to dismiss it – a procedure known as Munsingwear vacatur. The decision should not be allowed to stand, the administration contended, and serve as a precedent for future disputes when it “might not have survived this Court’s review but for ‘mootness by happenstance.'”

After considering the case at 11 consecutive conferences, the court finally followed the Trump administration’s suggestion and sent the case back to the 2nd Circuit with instructions to dismiss it as moot. 

I am not a lawyer and was only vaguely aware of the Munsingwear vacatur before this case. Still, I maintain my original position.

The fact of the matter is that we have a live issue: can a President of the United States (or, presumably, any sitting official) block constituents from reading their “personal” social media accounts if they also use them to communicate official positions? I believe the lower court and the 2nd Circuit got it right but don’t believe it to be a slam dunk.

Yes, Trump is out of office and that particular case-in-controversy is indeed moot. But Trump was sued precisely because he was President and the presidency as an institution survives. By dismissing the case as moot, the court has essentially ruled that the matter will never be justiciable.

Note that the original case was filed in July 2017, just six months into Trump’s four-year term. If four Justices had decided to grant cert, rather than denying on the basis of mootness, it would have heard the case four years after its filing. So, essentially, unless we get another case early in a President’s term and said President is re-elected to a second term, the matter will never be justiciable. That’s just nuts.

Even more so since, as Josh Blackman notes, “the Court did not need to wait till the inauguration. The case was first distributed for conference on October 30, 2020.”

FILED UNDER: Donald Trump, Law and the Courts, Social Media, Supreme Court, US Politics
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. SKI says:

    Unless the argument is that, until the Supreme Court rules, the case isn’t over. But that’s an odd stance to take, indeed, since the Courts of Appeal are the final resting ground for all but 80ish cases a year.

    Not that odd. How it actually works. It is fairly routine to moot a lower court opinion if it becomes moot (or is settled) while an appeal is pending.

    We don’t know how the appellate court would rule and will never know as the parties involved have no interest in litigating (and the Court no jurisdiction as there isn’t a live controversy anymore). It doesn’t make sense to leave the lower opinion in place as controlling law given it may not be reliable.

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  2. James Joyner says:

    @SKI: That would absolutely make sense in the case of a trial court decision that was waiting for a hearing before the court of appeals, which is essentially automatic. But SCOTUS only rules on a handful of cases a year.

    EDITED TO ADD: Even weirder in a case where the mootness is because of politics, not death. The question here isn’t Trump’s criminal liability but whether a President can commit unofficial/personal actions. It makes no sense to have this precedent evaporate because it couldn’t get adjudicated in three years; Presidents only have four-year terms.

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  3. The fact that they not only declared the case moot but also effectively wiped out the lower court decisions is quite odd. It’s one thing to declare the case moot at the SCOTUS level but vacating the decision below does not make sense given the likelihood that this issue will come up in the future with respect to another political leader who is active on social media.

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  4. Kathy says:

    Twitter could solve this by not allowing politicians or public servants, at any level, to block anyone from reading their Tweets.

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  5. Just nutha ignint cracker says:

    I think you’re neglecting factors related to the current makeup of the Supreme Court. On the other hand, I’ve been cynical about “justice” in the nation for well over a decade.

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  6. In fact I wrote back in 2019 about a case similar to the Trump case that was filed against Alexandria Ocssio-Cortez:

    https://www.outsidethebeltway.com/ocasio-cortez-settles-lawsuit-over-twitter-blocking-apologizes/

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  7. SKI says:

    @James Joyner:

    That would absolutely make sense in the case of a trial court decision that was waiting for a hearing before the court of appeals, which is essentially automatic. But SCOTUS only rules on a handful of cases a year.

    It is called a Musingwear vacatur and goes back to t0 1950. . See this explanation.

    Munsingwear addresses what to do with a court of appeals decision when the case becomes moot while it is pending on review by a higher court (whether the Supreme Court or a court of appeals). In Munsingwear, the Supreme Court held that, where intervening mootness prevents appellate review of the underlying decision, the decision below ordinarily should be vacated. “[T]he established practice of the Court in dealing with a civil case from a court in the federal system which has become moot while on its way here or pending our decision on the merits is to reverse or vacate the judgment below and remand with a direction to dismiss.” 340 U.S. at 39.

    @Doug Mataconis: As noted above, it isn’t that weird. I do think the fact that it involved Trump made them less willing to wade into these waters and resolve it now under the “capable of being repeated” equitable doctrines. I think they didn’t want leave the 2nd Circuit opinion in place) but didn’t want to go through the whole process right now with this particular case.

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  8. James Joyner says:

    @SKI: That makes more sense. I saw the Munsingwear reference in Thomas’ concurrence but the case itself made no sense in this context–it looks like that case went moot because of failure to pursue the appeal in a timely manner and because the underlying law changed. Ah well. Again, it makes sense in the case of expunging a criminal conviction for a deceased appellant. It’s odd when the defendant, in this case the Office of the President, wanted to continue the case. (The petition for cert had Biden’s name on it, in fact.)

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  9. Stormy Dragon says:

    My big question is why the “capable of repetition, yet evading review” exception didn’t apply here. They’re basically creating a situation where each successive President can block people on twitter, then draw out the case until they leave office, and then claim it’s now moot without ever addressing the underlying issue of whether or not they’re allowed to do that.

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  10. @SKI:

    They did something similar with the Emoluments cases that were filed against Trump, the effect being that there is no valid court precedent on those clauses of the Constitution.

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  11. @Stormy Dragon:

    The fact that it took almost four years for some of these cases involving Trump to make it to SCOTUS for consideration is a sign of how long jammed civil litigation is in the Federal Courts.

    One thing this could lead to is more litigants trying to bypass the Courts of Appeal by using a SCOTUS rule that allows for a direct appeal from the District Court to SCOTUS. As with every other appeal, SCOTUS can take the case or deny it. If it’s denied then you still have the option of appealing to the appropriate Court of Appeals.

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  12. Sleeping Dog says:

    @Doug Mataconis:

    …is a sign of how long jammed civil litigation is in the Federal Courts.

    Presenting Dems the opportunity and justification to drastically increase the size of the federal bench. If they don’t do it R’s will when they have the chance.

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  13. Kurtz says:

    @Sleeping Dog:

    Presenting Dems the opportunity and justification to drastically increase the size of the federal bench. If they don’t do it R’s will when they have the chance.

    I’m not so sure the GOP would want to do that. I guess they could extend their appointment advantage that way, but it seems like having pending litigation is good for short term electoral prospects.

    ACA repeal was a an electoral boon for them across multiple cycles.

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  14. @Sleeping Dog:

    The first thing they should break up the 9th Circuit into two separate Circuits. That Court of Appeals is the busiest, and slowest, in the country.

    I wrote about this back in 2017:

    https://www.outsidethebeltway.com/republicans-looking-at-plans-to-break-up-the-ninth-circuit/

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  15. Sleeping Dog says:

    @Doug Mataconis:

    Agreed, followed by expanding the 5th that has become so reactionary.

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  16. @Sleeping Dog:

    From the numbers I’ve seen the Fifth Circuit doesn’t have the volume of cases, or the delays in litigation, that make such a move necessary.

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  17. James Joyner says:

    @Sleeping Dog: @Doug Mataconis: Recall that the 5th was already relatively recently:

    Congress in 1980 divided the circuit, keeping Texas, Louisiana, and Mississippi in the Fifth Circuit, and moving Alabama, Georgia, and Florida to the newly-established Eleventh Circuit, effective October 1, 1981. The circuit split was the culmination of nearly two decades of congressional debate on the issue, much of which focused on how the split would impact the appellate court’s civil rights jurisprudence.

    Think how reactionary it would be under the old configuration!

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  18. Barry says:

    How many of these unusual decisions would benefit the next GOP President? SCOTUS might be preparing the way.

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  19. James Joyner says:

    @Barry: It strikes me unlikely SCOTUS is being that cynical. Who knows how long until there’s another Republican President and, by then, Twitter might not even be a thing.

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  20. @James Joyner:

    As it stands the Fifth Circuit is only made up of three states. Additionally, as I said, there’s no evidence of excessive case volume or delays that would justify discussing breaking the circuit up.

    The complaint seems to be more that the 5th Circuit is more conservative than most other Circuits and some on the left want to either break thr circuit up or add judges to it to make it less conservative. Personally I don’t see that as a valid reason to either bust up the 5th Circuit or drastically increase the number of Judges.

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  21. Andy says:

    The fact of the matter is that we have a live issue: can a President of the United States (or, presumably, any sitting official) block constituents from reading their “personal” social media accounts if they also use them to communicate official positions? I believe the lower court and the 2nd Circuit got it right but don’t believe it to be a slam dunk.

    Where do we draw the line between “personal” tweets and “official” tweets made on a personal account?

    I’m very close to being a free-speech absolutist but I still think the original decision was dumb. No one was ever prevented from seeing President Trump’s tweets. The content of a public social media post is by definition public. Blocking an account doesn’t prevent anyone from seeing the content. How is this different from refusing some person entry to a political speech at some venue? Or removing someone from a venue who is disruptive, which happens all the time?

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  22. James Joyner says:

    @Andy:

    Where do we draw the line between “personal” tweets and “official” tweets made on a personal account?

    That’s what I was hoping SCOTUS would help us clarify!

    I’m very close to being a free-speech absolutist but I still think the original decision was dumb. No one was ever prevented from seeing President Trump’s tweets. The content of a public social media post is by definition public. Blocking an account doesn’t prevent anyone from seeing the content. How is this different from refusing some person entry to a political speech at some venue? Or removing someone from a venue who is disruptive, which happens all the time?

    Ditto above. And, yes, I think there’s a pretty good argument for that as well. Indeed, I think we’re in agreement on this one.

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  23. dazedandconfused says:

    Could be awhile before we have a POTUS or politician childish enough to demand he or she’s Twitter account be closed to critics but remain open for idolaters to express their adoration, and a private company must be compelled to provide that condition for any politician. Also there are only so many cases the Supremes can handle, this fish does not need to be fried at the moment. Junking this seems understandable.

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  24. @dazedandconfused:

    Hopefully we will be smart enough to not elect another social media troll A President

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