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Saturday, August 01, 2020

Judicial departmentalism and particularity on Twitter (Updated)

In 2019, the Second Circuit held that Donald Trump could not ban people from following him on Twitter for viewpoint-discriminatory reasons, affirming a declaratory judgment. Trump and Daniel Scavino, the aide who runs his Twitter account, unblocked the plaintiffs and many others. But they did not unblock two groups--those who had been blocked before Trump became President (where there was no First Amendment problem with blocking them because he was not a government official at the time of blocking) and those who cannot point to a specific tweet that caused them to be blocked (where there is no evidence of viewpoint discrimination).

The Knight Foundation on Friday filed a new lawsuit on behalf of those two groups, asking for a declaratory judgment and injunction ordering the unblocking of these new plaintiffs.

Once again, inefficient but appropriate. Trump unblocked the plaintiffs, as we was obligated to do by the judgment. He negotiated with the Knight Foundation to unblock others, not out of an immediately enforceable legal obligation but a recognition of what would happen if he did not unblock--a motion to extend the existing judgment to additional individuals, which would succeed and which would impose that legal obligation. But he identified two groups differently situated than the plaintiffs who, in Trump's view, have not suffered similar violations of their First Amendment rights. This requires new litigation, a new analysis of the First Amendment, and a new declaration of First Amendment rights, duties, and relations.

Update: A further thought on the process: We know the plaintiffs recognized the particularized scope of the original judgment by the fact that they filed a new lawsuit on behalf of these plaintiffs. Had the original judgment protected these non-parties to that action, they could have moved to enforce the judgment, to hold Trump or Scavino in contempt, or to convert the declaratory judgment into an injunction.

For better or worse, this how the process should work. And Trump should not be accused of disobeying a court order or otherwise ignoring the court.

Posted by Howard Wasserman on August 1, 2020 at 06:41 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process | Permalink


It seems to me that this is actually not a story about party-particularity, but almost just the opposite; the defendant is acting as though the judgment binds him as to similarly situated non-parties, but not as to non-parties whom he thinks are not covered by the principles announced in the judgment. The latter says nothing about particularity. Even if we believed that absent class certification the judgment itself would have the effect of rendering unlawful the blocking of some class of non-parties, one would still have to ask who that class was; universalists, if we might call them that, don't claim that every judgment runs to the entire world, of course, just the people who share the same rights as the plaintiffs. At the least, one can make sense of this story while completely rejecting your view of adjudication (which I share), though I grant you that the de-blocking of the similarly situated non-parties can be understood as a mere "recognition of what would happen if he did not de-block."

Posted by: Asher Steinberg | Aug 4, 2020 12:07:15 AM

If the President believes there is a serious issue, then I think he is within his legal power (politics aside) to advance his best litigation position. This case is easier than the typical departmentalism situation--the court said X, President still believes Y, and President continue to act on that just because he believes it is right--which I argument the President can do as a matter of his power and oath. Here, there is at least a facially arguable distinction for the President to rely on.

I think the distinction with the pre-presidential blockees is close. The act of blocking was not constitutionally invalid at the time he did it. For this group to win, they have to shift the focus from blocking them ab initio to keeping them blocked. Or we have to reconceptualize blocking as some sort of ongoing activity. Either way, it would require a rule that someone must undo lawful pre-office conduct when they assume office. Maybe that is right. But I am trying to think of a comparable situation.

Posted by: Howard Wasserman | Aug 2, 2020 10:09:53 AM

Howard: Is it your view that there's a serious question whether the still-blocked individuals are differently situated from the plaintiffs in the first case in a way that might actually warrant a different result? If so, fine. But if not, then why is it "appropriate" that this is the way it works? Wouldn't the appropriate thing for the President of the United States to do be to apply the court's ruling across-the-board (putting aside a possible test case if he wants to take it up to the Supreme Court)?

Posted by: Martin Lederman | Aug 2, 2020 8:51:51 AM

Well Wasserman, you have written about, similarly or not, situated litigants. Situated where? If we don't know where, they are situated maybe somewhere else.

And now, it seems, that they are all situated at the same place. Because, beyond the legality and constitutionality of the action of Trump ( and then, situated is much less relevant sometimes in such cases) the issue, is, or would be:

Why to block them at first place? Now when he is the president. And in fact, both categories shall maybe be unified to the same one, or one.

That is beyond the mere issue, that the probability or predictability of success on merits, would define the chances for granting the injunctive relief sought here. And then, the issue per se, is discussed in " one touch" in the preliminary discussion.

Posted by: El roam | Aug 2, 2020 7:41:28 AM

This post was about why the second lawsuit needed to be filed at all, as opposed to being resolved by the first judgment. This post was not about the merits of the second lawsuit. However important they may be, they were not what this post was about.

Posted by: Howard Wasserman | Aug 2, 2020 7:11:13 AM

Nothing to do with the post? You have missed what at first place, should be on merits discussed in the future ( of that process). So, your post, in on certain case, and you don't realize, what is at stake, what is on merits here.

So, process according to you, on what ? It didn't cross your mind?

Posted by: El roam | Aug 2, 2020 5:13:09 AM

That's because the "core" of the post was about the process rather than the substantive merits of the the new lawsuit. But thank you for taking time out of your busy day to tell us about something that had nothing to do with the post.

Posted by: Howard Wasserman | Aug 1, 2020 11:35:33 PM

Important issue. But the post doesn't explain the core of it. I quote from the lawsuit:

" Defendants refused, stating that " Donald Trump does not intend to unblock persons who were blocked prior to his inauguration or who cannot identify a tweet that preceded and allegedly precipitated the blocking"

End of quotation:

That is to say, that blocking yet persists these days. Now when he is the president, he can't persist with it. He should reopen it for them. Maybe he has the right, not to show comments posted prior to his inauguration, but why keeping on blocking them now?

To the lawsuit:



Posted by: El roam | Aug 1, 2020 8:40:18 PM

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