We, meaning the Knight Institute legal team, filed a complaint in the Southern District of New York on July 12, 2017. We asked, and are asking, that the president of the United States, or the subordinates who have access to his Twitter account, unblock us.
The gist of our argument—which I explain in my own words as a plaintiff, for a change, not officially as counsel—is that not only the people blocked but the other Twitter users who’d like to participate in discussions spawned by this account are being harmed. Blocking creates an increasing impression of a one-sided reception for the president’s tweets. It also makes my job as a journalist a lot more difficult, by the way.
At the judge’s urging, the two parties—that is, the government, represented by the Department of Justice, and we plaintiffs—agreed on a stipulation of facts, an exhaustive document detailing every point of factual agreement. Because the DOJ conceded that Trump blocked the seven of us for being critical of him, or for our viewpoints, the stipulation negated the need for discovery.
Personally, I was relieved. The prospect of strangers—hostile lawyer strangers at that—doing a deep dive on my internet activity and personal life, questioning me about it, and arguing about it in court was alarming. Beyond the intrusiveness, depositions can be also lengthy and disruptive, not to mention stressful.
There’s a better reason to celebrate the DOJ’s concession: Admitting viewpoint discrimination is a big deal First Amendment-wise. If DOJ had instead argued that we’d been blocked for legitimate reasons—for making threats or using expletives—this would have been a very, very different (and much, much longer) case. If they’d succeeded, the case would be over: Regulating that kind of speech would be legitimate, period, and the court wouldn’t need to go further.
Why not draw it out? Why surrender on a major legal issue without a fight? The process of discovery would be even more uncomfortable for the government than for us plaintiffs. Discovery would have entailed depositions by the officials with access to @realDonaldTrump and possibly interrogatories—or questions by letter—seeking answers from 45 himself.
When it came time for oral arguments last Thursday, there was no question that I’d trek up from D.C. You only sue the president once. Hopefully.
We met around 9 AM at Starbucks (where else?) and trouped over: Philip Cohen, a sociology professor at the University of Maryland, and I were the first two plaintiffs to arrive; Ujala Sehgal, the Knight Institute’s communications director, shepherded us into the courthouse. A third plaintiff, Nick Pappas, joined us in the courtroom along with his wife.
None of us were sure what to expect. The government’s concession on the viewpoint discrimination issue narrowed the field for argument. The major remaining points of contention surrounded jurisdiction, or the court’s authority to hear the case and grant relief; whether @realDonaldTrump is a public forum, thus subject to the First Amendment claims raised; and whether hitting the “block” button constituted an official action.
The government would have to argue that @realDonaldTrump is not subject to the First Amendment and that the court lacks the authority to order the president, or his subordinates, to do anything.
By the time 11 AM rolled around, the relatively small courtroom—a capacity for 50, perhaps?—was standing-room only. Fortunately, when Buchwald took the bench, she opened the jury box to attendees and press. Not just the standing audience but some seated reporters, including Jeffrey Toobin, scrambled up to these prize seats.
Rather than permit opening arguments, Buchwald announced that there were two arguments she found “not meaningful” and informed counsel that, in lieu of traditional opening statements, etc., she’d come up with two-and-a-half pages of questions. Her queries, often prefaced by phrases such as “I’m a little puzzled” or “not quite sure,” sometimes a “not sure why,” reflected a deep knowledge of how Twitter works—and ensured we all missed lunch.
She got to jurisdiction first.
Challenging jurisdiction—specifically, alleging that plaintiffs lack standing—is almost pro forma. Most defendants take a shot. To have standing, or the right to sue, we had to show an injury that could be traced back to Trump and his subordinates that the court could remedy.
The judge focused on the last of these issues: the court’s jurisdiction. Does the court have authority to order the president to do something? (Yes, according to us; no, according to DOJ, but here there’s precedent, and it is on our side.) DOJ argues an order that implicitly or explicitly directs the president to do something is a threat to presidential power, basically. But, again, we’ve got sturdy precedent here.
What about ordering Trump’s subordinates to grant relief? Our reply to DOJ’s motion for summary judgment, also our cross-motion for summary judgment, points to precedent stating that even if a subordinate didn’t inflict the harm, they can be ordered to remedy it.
As to the injury component: Elsewhere, Buchwald stated baldly that it’s “not true that the only person harmed is the one blocked.”
Buchwald drilled both parties on the two means by which she could hypothetically offer remedy: declaratory relief, or a clear statement of law that the government will be assumed to follow as a matter of good faith; and injunctive relief, or an order directing a specific official to do something.
Briefly distracted by an avid gum-smacker toward the tail end of this mini-epoch, your intrepid blogger still managed to catch the judge’s none-too-subtle transition to questions of official action and what makes a public forum. Per the defense, we have to resolve the question of whether blocking is an official action first. Buchwald, though, seemed to prefer public forum analysis first.
Here, there were fewer fireworks, save painful struggles over analogy. The defense tried to analogize Twitter to a conference at which the president could simply walk away. Katie Fallow, a Knight Institute attorney, resisted this analogy, pointing out that the degree of control the president exercises is far greater. Blocking is more like standing at the door to decide who gets to take part in the conference.
The defense also argued that the president’s use of the @realDonaldTrump account was not vulnerable to a First Amendment challenge, because his use of the account was not based on a specific presidential power. Buchwald slapped down this defense with her own hypothetical: If there were a town hall and a government official turned the mic off because she didn’t like what the constituent was saying, there would be a First Amendment problem, even though there is no “presidential mic authority.”
“Why doesn’t he just mute that person?”
Buchwald raised the issue of muting and whether muting rather than blocking us could satisfy both parties. Knight Institute executive director Jameel Jaffer responded in a written statement post-argument: “We’ve said from the outset that muting would be a less restrictive alternative than blocking, so we were pleased the judge raised this possibility … it would be a pretty remarkable about-face if the government were to propose a settlement at this point. We’d certainly be open to hearing from them, though.”
The government may not be inclined to settle, but Buchwald was clear in warning counsel that they may not like the law they get if she has to rule on these issues. Although she turned to plaintiffs’ counsel briefly, she directed these remarks at the defense.
This is all to say that things went well enough that the legal team and we three plaintiffs celebrated after with Singha and pad thai.
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