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U.S. Circuit Court of Appeals and sent it back to the lower court with instructions to dismiss the case as “moot,” or no longer active, now that Trump is a private citizen.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.”