Knight First Amendment Institute at Columbia University et al v. Trump et al
LETTER RESPONSE to Motion addressed to Judge Naomi Reice Buchwald from Michael Baer dated 08/11/2017 re: #13 LETTER MOTION for Conference re: Motion for a Preliminary Injunction addressed to Judge Naomi Reice Buchwald from Jameel Jaffer dated 8/8/2017. . Document filed by Daniel Scavino, Sean M Spicer, Donald J. Trump. (Baer, Michael)
Case 1:17-cv-05205-NRB Document 21 Filed 08/11/17 Page 1 of 3
U.S. Department of Justice
Federal Programs Branch
20 Massachusetts Ave., NW
Washington, D.C. 20530
Michael H. Baer
Tel: (202) 305-8573
Fax: (202) 616-8460
August 11, 2017
Via ECF and by Fax
The Hon. Naomi Reice Buchwald
United States District Court
Southern District of New York
500 Pearl Street
New York, NY 10007
Knight First Amendment Institute at Columbia University, et al. v. Trump,
et al., No. 17-cv-5205 (NRB)
Dear Judge Buchwald:
Defendants in the above-captioned matter submit this letter in response to Plaintiffs’
August 8, 2017 request for a pre-motion conference, at which Plaintiffs would seek to file a motion
for preliminary injunction. See Letter Mot., ECF No. 13. Plaintiffs seek preliminary relief for the
unprecedented purpose of policing the manner in which President Donald J. Trump manages his
Twitter account, @realDonaldTrump. The Court should not permit Plaintiffs to seek, much less
obtain, such relief.1
First, Plaintiffs cannot demonstrate a substantial likelihood of success on the merits of their
First Amendment claim—the only claim at issue in this case. To obtain a preliminary injunction,
Plaintiffs must make the heightened showing of a “‘substantial’ likelihood of success on the
merits” because they “seek a preliminary injunction that [would] alter the status quo.” N.Y.
Progress & Prot. PAC v. Walsh, 733 F.3d 483, 486 (2d Cir. 2013) (citation omitted). Specifically,
they seek to change the fact that they are “blocked” from the @realDonaldTrump account for “the
pendency of this litigation.” Letter Mot. at 2-3; Compl. ¶ 46.
It would send the First Amendment deep into uncharted waters to hold that a president’s
choices about whom to follow, and whom to block, on Twitter—a privately run website that, as a
central feature of its social-media platform, enables all users to block particular individuals from
viewing posts—violate the Constitution. Extending the First Amendment’s reach in that fashion
would be particularly inappropriate in light of the Supreme Court’s reluctance to apply traditional
First Amendment restrictions, such as forum analysis, in inapposite contexts. See United States v.
Defendants take no position on the scheduling of a pre-motion conference.
Case 1:17-cv-05205-NRB Document 21 Filed 08/11/17 Page 2 of 3
Am. Library Ass’n, Inc., 539 U.S. 194, 205 (2003) (holding that First Amendment “forum analysis
and heightened judicial scrutiny” were “out of place” in assessing a library’s discretionary
decisions about internet content). And, more broadly, such a novel holding would cast doubt on
the ability of government officials to direct their communications to particular audiences.
Additionally, Plaintiffs are not likely to succeed on the merits because this Court does not
have jurisdiction to redress Plaintiffs’ alleged First Amendment injury. To do so would require an
injunction ordering the President to “unblock” particular individuals—relief that this Court cannot
award. As the Supreme Court acknowledged more than a century ago, courts lack jurisdiction “to
enjoin the President in the performance of his official duties.” Mississippi v. Johnson, 71 U.S. (4
Wall.) 475, 501 (1866). “The President’s immunity from such judicial relief is ‘a functionally
mandated incident of the President’s unique office, rooted in the constitutional tradition of the
separation of powers and supported by our history.’” Franklin v. Massachusetts, 505 U.S. 788,
827–28 (1992) (Scalia, J., concurring in part and concurring in the judgment) (quoting Nixon v.
Fitzgerald, 457 U.S. 731, 749 (1982)).
Injunctive relief is particularly inappropriate here because it would involve compelling the
President to take an otherwise discretionary action. See Mississippi, 71 U.S. (4 Wall.) at 499-501
(contrasting “a mere ministerial duty, . . . which might be judicially enforced,” with a discretionary
or “purely executive and political” duty, which a court lacks jurisdiction to enforce). To the extent
that the President’s management of his Twitter account constitutes state action, it is unquestionably
action that lies within his discretion as Chief Executive; it is therefore outside the scope of judicial
enforcement. Without relief that would redress their alleged injury, Plaintiffs cannot succeed on
Second, Plaintiffs will not suffer irreparable harm if the Court allows this litigation to
unfold in the normal course. As a threshold matter, there can be no irreparable harm if there is no
First Amendment injury. Hsu v. Roslyn Union Free Sch. Dist. No. 3, 85 F.3d 839, 853 (2d Cir.
1996); see also McNeilly v. Land, 684 F.3d 611, 621 (6th Cir. 2012) (“Because McNeilly does not
have a likelihood of success on the merits . . . his argument that he is irreparably harmed by the
deprivation of his First Amendment rights also fails.”). Additionally, Plaintiffs can continue to
read all of the tweets from the @realDonaldTrump account—in real time—while this litigation
pends. The @realDonaldTrump account is public, and it is therefore viewable by anyone who is
not logged in to Twitter. See Blocking accounts on Twitter, Twitter, https://support.twitter.com/
articles/117063# (last visited Aug. 11, 2017) (noting that if a blocked user “isn’t logged in [to
Twitter] or is accessing Twitter content via a third party, they may be able to see your public
Tweets”). Finally, at least two plaintiffs still have the ability respond to the Presidents tweets, see
Compl. ¶¶ 59, 67 (explaining that these plaintiffs use a third-party application to view and respond
to the tweets), and the remaining plaintiffs remain free to use Twitter (or any other social media
platform) to criticize the President. Accordingly, although “[t]he loss of First Amendment
freedoms” generally “constitutes irreparable injury,” this case is a far cry from Elrod v. Burns,
where individuals faced discharge or threats of discharge “solely for the reason that they were not
affiliated with or sponsored by the Democratic Party.” 427 U.S. 347, 350, 373 (1976). No
comparable injury is at issue here.
Case 1:17-cv-05205-NRB Document 21 Filed 08/11/17 Page 3 of 3
Third, the balance of the equities and the public interest tip decidedly against Plaintiffs. As
noted above, any impairment of Plaintiffs’ speech during this litigation is minimal. The fact that
Plaintiffs have waited nearly a month since filing their complaint to request a preliminary
injunction reinforces that conclusion. Compare Letter Mot. at 1 (dated Aug. 8, 2017), with Compl.
at 25 (dated July 11, 2017). By contrast, imposing a preliminary injunction would raise profound
separation-of-powers concerns by intruding directly into the President’s chosen means of
communicating to millions of Americans. See Swan v. Clinton, 100 F.3d 973, 978 (D.C. Cir. 1996)
(“[F]or the President to ‘be ordered to perform particular executive . . . acts at the behest of the
Judiciary’ at best creates an unseemly appearance of constitutional tension and at worst risks a
violation of the constitutional separation of powers.” (citation omitted) (quoting Franklin, 505 U.S.
at 827 (Scalia, J., concurring in part and concurring in the judgment)). Even if this Court ultimately
were to entertain the possibility of such relief, it should not do so in the expedited posture of a
motion for preliminary injunction.
For the foregoing reasons, Defendants respectfully submit that the Court should not permit
Plaintiffs to seek a preliminary injunction.
CHAD A. READLER
Acting Assistant Attorney General
ERIC R. WOMACK
Assistant Branch Director
/s/ Michael H. Baer
MICHAEL H. BAER
U.S. Department of Justice,
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, NW
Washington, DC 20530
Counsel for Defendants
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