Introduction
The U.S. Supreme Court recently ended the legal battle between former President Donald Trump and individuals whom Mr. Trump had blocked on Twitter, by granting the government’s petition for a writ of certiorari filed when Mr. Trump was still the President, vacating the Second Circuit’s judgment against Mr. Trump, and remanding the case with instructions to dismiss the matter as moot. See Biden v. Knight First Amendment Institute at Columbia University, et al., 593 U.S. __ (2021).
The legal discussions offered in this case may be significant for future disputes concerning speech made on interactive online venues made available by corporations and/or individuals.
Background
In July 2017, President Donald Trump was sued by the Knight First Amendment Institute at Columbia University and seven individuals whom he had blocked on Twitter. It is undisputed that President Trump blocked the individual Plaintiffs because they posted tweets that criticized him or his policies. The Plaintiffs claimed that being blocked based on expressed political opinions was an unconstitutional restriction of speech. The Plaintiffs sought a declaration that blocking the accounts was unconstitutional and an injunction requiring that President Trump unblock the accounts.
District Court Opinion
In July 2019, the United States District Court for the Southern District of New York granted partial summary judgment in favor of the Plaintiffs and issued a declaratory judgment against President Trump. According to the District Court, by blocking the individual Plaintiffs from President Trump’s account @realDonaldTrump (“Account”) based on expressed political opinions, the government had engaged in viewpoint discrimination in violation of the Constitution. The government appealed.
Court of Appeals Opinion
The U.S. Court of Appeals for the Second Circuit upheld the District Court’s holding and agreed that President Trump engaged in prohibited viewpoint discrimination. See Knight First Amendment Inst. at Columbia Univ. v. Trump, No. 18-1691-cv (2nd Cir. Jul. 9, 2019).
According to the Second Circuit, the Account was sufficiently controlled by the government for First Amendment purposes when President Trump used it in official government capacity. Although the Account was created in 2009 as a personal account, once President Trump became President, the Account was used “as an important tool of governance and executive outreach.” Even though President Trump was going to retain personal control over the Account after his presidency, temporary control by the government is still “control” for First Amendment purposes. The Second Circuit ruled that President Trump acted in an official capacity and excluded those who expressed disfavored opinions from a government-controlled property when he blocked the individual Plaintiffs from his Account. The fact that any Twitter user may block another account does not mean that President Trump somehow became a private person when he did the same.
Supreme Court Ruling and Justice Thomas’s Concurring Opinion
In August 2020 the U.S. Department of Justice submitted a petition for a writ of certiorari claiming that the Second Circuit ruling “blur[red] the line between state action and private conduct” and would “jeopardize the ability of public officials—from the President of the United States to a village councilperson—to insulate their social-media accounts from harassment, trolling or hate speech without invasive judicial oversight.” Granting the petition on April 5, 2021, the Supreme Court vacated the judgment and remanded the case to the Second Circuit with instructions to dismiss the case as moot as Mr. Trump is no longer the President.
Concurring with the Court’s ruling, Justice Thomas wrote separately to “highlight [] the principal legal difficulty that surrounds digital platforms.” In particular, Justice Thomas noted the fact that Twitter had eventually permanently removed Mr. Trump’s account from the platform, thus “barr[ing] Mr. Trump not only from interacting with a few users,” but also “barring all Twitter users from interacting with his messages” (emphasis in original). Justice Thomas acknowledged that on the surface, some aspects of the Account resembled a public forum, but the Second Circuit’s conclusion that the Account was a public form conflicts with at least the Court’s “frequent description of public forums as government-controlled spaces” (internal quotation omitted). According to Justice Thomas, “[b]ecause unbridled control of the [A]ccount resided in hands of a private party, First Amendment doctrine may not have applied” in this matter.
Next, Justice Thomas proposed searching for solutions to future problems concerning similar issues in legal doctrines that limit the right of a private company to exclude. He suggested two legal doctrines: One concerns the government’s special regulations for common carriers, and the other concerns the government’s limitation on a company’s right to exclude when that company is a public accommodation. According to Justice Thomas, “[t]here is a fair argument that some digital platforms are sufficiently akin to common carriers or places of accommodation to be regulated in [the same] manner.” If digital platforms are considered not close enough to common carriers, Justice Thomas noted that legislatures might be able to treat digital platforms like places of accommodation. In any event, Justice Thomas suggested that the principal means for regulating digital platforms might be through common carrier or public accommodation restrictions, even though speech doctrines might still apply in limited circumstances. According to Justice Thomas, “if the aim is to ensure that speech is not smothered, then the more glaring concern must perforce be the dominant digital platforms themselves,” as it appears that “the right to cut off speech lies most powerfully in the hands of private digital platforms.” Justice Thomas ended his concurring opinion by stating that the extent to which private digital platforms’ power matters for First Amendment purposes and the extent to which that power could lawfully be modified raise interesting and important questions that are “unfortunately” not before the Court today.
Conclusion/Takeaways
The complexity of the legal issues surrounding public officials’ use of private social media accounts, and private digital platforms’ control over content available to the public, is evident from the Second Circuit’s and Justice Thomas’s opinions. As Justice Thomas summarized eloquently, “today’s digital platforms provide avenues for historically unprecedented amounts of speech,” and “[a]lso unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties.” We anticipate that any court decisions or legislative regulations concerning social media platforms’ control over speech made by individuals to the public will have important implications for corporations or individuals that offer online venues for private individuals to interact and communicate in a public way.
Special thanks to Cassandra Gizzo for assisting with the drafting of this post.
