Knight First Amendment Institute at Columbia University et al v. Trump et al

Filing 43

MEMORANDUM OF LAW in Support re: #42 CROSS MOTION for Summary Judgment . Plaintiffs' Memorandum In Support of Cross-Motion for Summary Judgment and In Opposition to Defendants' Motion for Summary Judgment. Document filed by Rebecca Buckwalter, Philip Cohen, Holly Figueroa, Eugene Gu, Knight First Amendment Institute at Columbia University, Brandon Neely, Joseph Papp, Nicholas Pappas. (Jaffer, Jameel)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
KNIGHT FIRST AMENDMENT INSTITUTE
AT COLUMBIA UNIVERSITY; REBECCA
BUCKWALTER; PHILIP COHEN; HOLLY
FIGUEROA; EUGENE GU; BRANDON
NEELY; JOSEPH PAPP; and NICHOLAS
PAPPAS,
Plaintiffs,

No. 1:17-cv-5205
ORAL ARGUMENT REQUESTED

v.
DONALD J. TRUMP, President of the United
States; HOPE HICKS, White House Acting
Communications Director; SARAH
HUCKABEE SANDERS, White House Press
Secretary; and DANIEL SCAVINO, White
House Director of Social Media and Assistant
to the President,
Defendants.

PLAINTIFFS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND
OPPOSITION TO DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Jessica Ring Amunson (pro hac vice)
Tassity S. Johnson (pro hac vice)
Jenner & Block LLP
1099 New York Avenue, NW, Suite 900
Washington, DC 20001
[phone]
[e-mail]

Jameel Jaffer (JJ-4653)
Katherine Fallow (KF-2535)
Carrie DeCell (application for admission
forthcoming)
Alex Abdo (AA-0527)
Knight First Amendment Institute at Columbia
University
314 Low Library
535 West 116th Street
New York, NY 10027
[phone]
[e-mail]

TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii
INTRODUCTON.............................................................................................................................1
STATEMENT OF FACTS ..............................................................................................................4
A.

How Twitter works. .......................................................................................... 4

B.

The @realDonaldTrump Twitter account. ........................................................ 9

C.

Defendants’ blocking of the Individual Plaintiffs from the
@realDonaldTrump account. .......................................................................... 10

LEGAL STANDARD....................................................................................................................11
ARGUMENT .................................................................................................................................12
I.

Defendants’ blocking of the Individual Plaintiffs from @realDonaldTrump
violates the First Amendment. .....................................................................................12
A.

The @realDonaldTrump account is subject to the First Amendment. ........... 12

B.

Defendants are violating the First Amendment by excluding the
Individual Plaintiffs from a public forum based on viewpoint. ...................... 17
1.

The @realDonaldTrump account is a designated public forum. ........ 17

2.

Defendants’ blocking of the Individual Plaintiffs from
@realDonaldTrump is unconstitutional viewpoint
discrimination. .................................................................................... 22

C.

D.

II.

Defendants are violating the First Amendment by restricting the
Individual Plaintiffs’ access to generally available government
information based on their viewpoints. ........................................................... 23
Defendants’ blocking of the Individual Plaintiffs imposes an
unconstitutional restriction on their First Amendment right to petition
the government for redress of grievances. ...................................................... 25

The Court has jurisdiction to provide relief in this case. .............................................27
A.

The Court has jurisdiction to order equitable relief against the
President in this case. ...................................................................................... 27

B.

Plaintiffs have standing to obtain relief against other Defendants. ................ 32

CONCLUSION ..............................................................................................................................33
i

TABLE OF AUTHORITIES
Cases
Am. Broad. Cos. v. Cuomo, 570 F.2d 1080 (2d Cir. 1977)..................................................... 20, 24
Baumgartner v. United States, 322 U.S. 665 (1944) .................................................................... 21
Bd. of Cty. Comm’rs, Wabaunsee Cty., Kan. v. Umbehr, 518 U.S. 668 (1996) ........................... 27
Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853
(1982) ...................................................................................................................................... 22
BE & K Constr. Co. v. NRLB, 536 U.S. 516 (2002) ..................................................................... 26
Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379 (2011) .................................................. 25, 26
Boumediene v. Bush, 553 U.S. 723 (2008) ................................................................................... 28
Carter v. HealthPort Techs., LLC, 822 F.3d 47 (2d Cir. 2016).................................................... 33
Chevron Corp. v. Donziger, 833 F.3d 74 (2d Cir. 2016) .............................................................. 27
City of Madison Joint Sch. Dist. No. 8 v. Wis. Emp’t Relations Comm’n, 429 U.S.
167 (1976) ............................................................................................................................... 19
Clinton v. Jones, 520 U.S. 681 (1997) .................................................................................... 28, 30
Competitive Enter. Inst. v. Office of Sci. and Tech. Policy, 827 F.3d 145 (D.C.
Cir. 2016) ................................................................................................................................ 16
Cornelius v. NAACP Legal Defense and Educ. Fund, Inc., 473 U.S. 788 (1985) ............ 17, 18, 21
D’Alessandro v. City of N.Y., No. 17-594-cv, 2017 WL 4641256 (2d Cir. Oct. 17,
2017) ....................................................................................................................................... 33
Davison v. Loudoun Cty. Bd. of Supervisors, No. 1:16-cv-932, 2017 WL 3158389
(E.D. Va. July 25, 2017) .................................................................................................. passim
Denver Area Ed. Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727 (1996) ............................ 21
Doe 1 v. Trump, No. 17-1597, 2017 WL 4873042 (D.D.C. Oct. 30, 2017) ................................. 15
Elrod v. Burns, 427 U.S. 347 (1976) ............................................................................................ 27
Forrester v. White, 484 U.S. 219 (1988) ................................................................................ 28, 29
Franklin v. Massachusetts, 505 U.S. 788 (1992).............................................................. 30, 31, 32

ii

Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017), vacated and cert. granted sub
nom. Trump v. Int’l Refugee Assistance Project, No. 16-1436, 2017 WL
2722580 (U.S. June 26, 2017) .......................................................................................... 15, 31
Jones v. Heyman, 888 F.2d 1328 (11th Cir. 1989) ....................................................................... 19
Kentucky v. Graham, 473 U.S. 159 (1985) ................................................................................... 32
Kleindienst v. Mandel, 408 U.S. 753 (1972)................................................................................. 22
L.A. Police Dep’t v. United Reporting Publ’g Corp., 528 U.S. 32 (1999) ............................. 24, 25
Lamb’s Chapel v. Ctr. Moriches Union Free School Dist., 508 U.S. 384 (1993) ........................ 27
Make The Road by Walking, Inc. v. Turner, 378 F.3d 133 (2d Cir. 2004) ....................... 17, 19, 22
Matal v. Tam, 137 S. Ct. 1744 (2017) .............................................................................. 20, 23, 24
McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184 (2d Cir. 2007) ........................................... 11
McMeans v. Obama, No. 11-cv-891, 2011 WL 6046634 (D. Del. Dec. 1, 2011) ........................ 31
Mirabella v. Villard, 853 F.3d 641 (3d Cir. 2017) ................................................................. 26, 27
Mississippi v. Johnson, 71 U.S. 475 (1866).................................................................................. 30
Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971)......................................................................... 21
Monsky v. Moraghan, 127 F.3d 243 (2d Cir. 1997) ..................................................................... 16
Musso v. Hourigan, 836 F.2d 736 (2d Cir. 1988) ......................................................................... 19
N.Y. Times v. Sullivan, 376 U.S. 254 (1964) ................................................................................ 21
Newdow v. Bush, 355 F. Supp. 2d 265 (2005) .............................................................................. 31
Nicholas v. City of New York, No. 15-cv-9592, 2017 WL 766905 (S.D.N.Y. Feb.
27, 2017) ................................................................................................................................. 25
Nixon v. Fitzgerald, 457 U.S. 731 (1982) ..................................................................................... 28
Nixon v. Sirica, 487 F.2d 700 (D.C. Cir. 1973) ...................................................................... 29, 32
Packingham v. North Carolina, 137 S. Ct. 1730 (2017) .................................................... 3, 18, 26
Paulsen v. Cty. of Nassau, 925 F.2d 65 (2d Cir. 1991) ................................................................ 17
Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37 (1983) .............................. 17, 18

iii

Pitchell v. Callan, 13 F.3d 545 (2d Cir. 1994) ............................................................................. 16
Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995)................................................................... 27
Pleasant Grove City, Utah v. Summum, 555 U.S. 460 (2009) ...................................................... 20
R.O. ex rel. Ochshorn v. Ithaca City Sch. Dist., 645 F.3d 533 (2d Cir. 2011) ............................. 19
Raines v. Byrd, 521 U.S. 811 (1997) ............................................................................................ 28
Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995) .................... 17, 18, 22, 23
Rossignol v. Voorhaar, 316 F.3d 516 (4th Cir. 2003) .................................................................. 17
S.F. Redevelopment Agency v. Nixon, 329 F. Supp. 672 (N.D. Cal. 1971) .................................. 30
Se. Promotions Ltd. v. Conrad, 420 U.S. 546 (1975) ................................................................... 20
Sorrell v. IMS Health Inc., 564 U.S. 552 (2011) .......................................................................... 24
Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) ............................................................................ 22
Sullivan v. Met. Trans. Auth. Police Dep’t, No. 13 Civ. 7677, 2017 WL 4326058
(S.D.N.Y. Sept. 13, 2017) ....................................................................................................... 12
Surita v. Hyde, 665 F.3d 860 (7th Cir. 2011) ............................................................................... 19
Suskin v. Nixon, 304 F. Supp. 71 (N.D. Ill. 1969) ........................................................................ 30
Swan v. Clinton, 100 F.3d 973 (D.C. Cir. 1996) .................................................................... 31, 32
U.S. Postal Serv. v. Hustler Magazine, Inc., 630 F. Supp. 867 (D.D.C. 1986) ............................ 26
United States v. Burr, 25 F. Cas. 187 (No. 14,694) (CC Va. 1807) ............................................. 29
United States v. Giordano, 442 F.3d 30 (2d Cir. 2006) ................................................................ 16
United States v. Nixon, 418 U.S. 683 (1974) ................................................................................ 29
Universal Church, Inc. v. Universal Life Church/ULC Monastery, No. 14 Civ.
5213, 2017 WL 3669625 (S.D.N.Y. Aug. 8, 2017) ................................................................ 11
Va. State Board of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S.
748 (1976) ............................................................................................................................... 22
White v. City of Norwalk, 900 F.2d 1421 (9th Cir. 1990) ............................................................. 19
Youngstown Sheet & Tube Co. v. Sawyer, 535 U.S. 579 (1952) ...................................... 29, 31, 32

iv

Other Authorities
Twitter, “About,” https://about.twitter.com/ ................................................................................. 18
Twitter, “Muting Accounts on Twitter,”
https://support.twitter.com/articles/20171399 .......................................................................... 9
Rules
Fed. R. Civ. P. 56 .......................................................................................................................... 11
Constitutional Provisions
U.S. Const. amdt. I ........................................................................................................................ 25

v

INTRODUCTON
The President’s Twitter account, @realDonaldTrump, has become an important source of
news and information about the government, and an important forum for speech by, to, and about
the President. The account is akin to a digital town hall, with the President speaking from the
podium at the front of the room and assembled citizens responding to him and engaging with one
another about the President’s statements. In an effort to suppress dissent, the President and his
aides are ejecting from this forum—“blocking”—the Individual Plaintiffs and other Twitter users
who have criticized the President or his policies.1 This practice is unconstitutional, and this
lawsuit seeks to end it.
Plaintiffs are entitled to summary judgment. There is no genuine issue of material fact.
To the contrary, the parties’ joint stipulation filed on September 28, 2017 includes the undisputed
facts necessary to establish the Court’s jurisdiction as well as the appropriateness of declaratory
and injunctive relief against President Trump and his aides.
The First Amendment applies here because Defendants use @realDonaldTrump for
official purposes. As the joint stipulation makes clear, White House staff members assist the
President in drafting and posting tweets to the account. The President and his aides use the
account to make official announcements, defend the President’s official decisions and actions,
report on the President’s meetings with foreign leaders, and promote the administration’s
positions on health care, immigration, foreign affairs, and other matters. The President’s aides
have stated that tweets from @realDonaldTrump are “official statements,” and they have cited
the tweets in response to official congressional inquiries. The tweets have been treated as official

1

In this brief, “Individual Plaintiffs” refers to the seven people in this lawsuit who were
blocked from @realDonaldTrump. “Plaintiffs” refers to all eight plaintiffs listed in the caption,
including the Knight First Amendment Institute at Columbia University (“Knight Institute”).
1

statements by national public officials, public agencies, world leaders, and federal courts. The
record thus establishes that Defendants use @realDonaldTrump as a “tool of governance.” See
Davison v. Loudoun Cty. Bd. of Supervisors, No. 1:16-cv-932, 2017 WL 3158389 (E.D. Va. July
25, 2017) (holding that county official used her Facebook page as a tool of governance and that
accordingly the account was subject to the First Amendment).
Defendants’ blocking of the Individual Plaintiffs from the @realDonaldTrump account
violates the First Amendment for several reasons.
First, the blocking violates the prohibition against viewpoint-based exclusion of speakers
from a designated public forum. The government creates a designated public forum when it
opens a space for speech by the public at large without restriction as to subject matter or speaker.
This is what Defendants have done here. The @realDonaldTrump account is a digital space in
which anyone with a Twitter account can respond to and debate the President’s statements
(“tweets”) in “comment threads” associated with those tweets. Given the nature of the forum,
Defendants’ concession that they have excluded the Individual Plaintiffs based on viewpoint
amounts to a concession that Defendants have violated the Individual Plaintiffs’ right to speak as
well as the Knight Institute’s right to hear.
Defendants’ argument that the @realDonaldTrump account is “government speech”
mistakes the part for the whole: While the President’s tweets are government speech, the
millions of comments on his tweets by ordinary citizens are not, and no one would mistake them
for it. Again, town halls and open city council meetings supply useful analogies. The mere fact
that a forum includes government speech does not convert it to something other than a public
forum.

2

Second, and independent of the public forum analysis, Defendants’ blocking of the
Individual Plaintiffs violates the First Amendment because it restricts their access to generally
available government information in retaliation for their criticism of the President. Through his
Twitter account, the President makes information about his presidency generally available to
anyone who follows him on Twitter. The First Amendment forecloses Defendants from
burdening the Individual Plaintiffs’ access to this otherwise generally available information
solely because the Individual Plaintiffs have criticized the President or his policies.
Third, and independent of the two claims described above, Defendants’ conduct violates
the Individual Plaintiffs’ First Amendment right to petition the government for redress of
grievances. The @realDonaldTrump account is, among other things, a channel through which
ordinary citizens can complain about government policy directly to the President and his closest
aides. See Packingham v. North Carolina, 137 S. Ct. 1730, 1735 (2017) (noting importance of
social media platforms, and Twitter in particular, as channels through which citizens exercise
rights protected by Petition Clause). Plaintiffs do not contend that Defendants are required to
make this channel available to the public at large, but having done so, Defendants cannot close it
to the Individual Plaintiffs solely because they have criticized the President or his policies.
Defendants’ contention that the Court lacks power to remedy the unconstitutional
conduct complained of here is meritless. The President is not above the law, and the notion that
the separation of powers requires this Court to turn a blind eye to the President’s violations of
First Amendment rights turns the separation of powers on its head. Moreover, even if there were
merit to Defendants’ argument that the Court cannot enjoin the President—and there is not—the
Court would still have the authority to grant declaratory relief against the President as well as
injunctive and declaratory relief against the President’s aides. Those aides include Dan Scavino,

3

White House Social Media Director and Assistant to the President, who by Defendants’
admission is actively involved in administering the @realDonaldTrump account and has the
access necessary to unblock the Individual Plaintiffs.
Plaintiffs respectfully request that the Court deny Defendants’ motion and enter summary
judgment in Plaintiffs’ favor.
STATEMENT OF FACTS
A.

How Twitter works.

Twitter is a social media platform with more than 300 million active users worldwide,
including some 70 million in the United States. Joint Stipulation (“Stip.”) ¶ 13, ECF No. 30-1.
The platform’s defining feature is interactivity, which it fosters by allowing users to post short
messages and to repost or respond to others’ messages. Id.
Users. A Twitter “user” is an individual who has created an account on the platform. A
user can post “tweets,” generally up to 140 characters in length, to a webpage on Twitter that is
attached to the user’s account. Tweets can include photographs, videos, and links. Id. ¶ 14.
A Twitter user must have an account name, or “handle,” which is an @ symbol followed
by a unique identifier (e.g., @realDonaldTrump), and a descriptive name (e.g., Donald J.
Trump). Alongside the handle, a user’s webpage will display the date the user joined Twitter and
a button that invites others to “Tweet to” the user. (This button is visible only to other Twitter
users.) A user’s Twitter webpage may also include a short biographical description; a profile
picture, such as a headshot; a “header” image, which appears as a banner at the top of the
webpage; the user’s location; and other information. Id. ¶ 16. Thus, part of the webpage for
@realDonaldTrump recently looked like this (annotated in red):

4

Timelines. A Twitter user’s webpage displays all tweets generated by the user, with the
most recent tweets appearing at the top of the page. This display is known as a user’s “timeline.”
When a user posts a tweet, the timeline updates immediately to include that tweet. Anyone who
can view a user’s Twitter webpage can see the user’s timeline. Id. ¶ 15.
Twitter webpages and their associated timelines are visible to everyone with internet
access, including those who are not Twitter users. Although non-users can view users’ Twitter
webpages, however, they cannot interact with users on the Twitter platform. Id. ¶ 18.
Tweets. An individual “tweet” comprises the tweeted content (i.e., the message, including
any embedded photograph, video, or link), the user’s account name (with a link to the user’s
Twitter webpage), the user’s profile picture, the date and time the tweet was generated, and the

5

number of times the tweet has been replied to (

), retweeted by ( ), or liked by (

) other

users. Id. ¶ 17.
Following. Twitter users can subscribe to other users’ messages by “following” those
users’ accounts. Users see all tweets posted or retweeted by accounts they are following. This
display is labeled “Home” on Twitter’s site, but it is often referred to as a user’s “feed.” Id. ¶ 19.
Verification. Twitter permits users to establish accounts under their real names or
pseudonyms. Users who want to establish that they are who they claim to be can ask Twitter to
“verify” their accounts. When an account is verified, a blue badge with a checkmark appears
next to the user’s name on his or her Twitter page and on each tweet the user posts. Id. ¶ 20.
Retweeting. In addition to posting tweets to their followers, Twitter users can
“retweet”—i.e., repost—the tweets of other users, by posting them directly to their own
followers or by “quoting” them in their own tweets. When a user retweets a tweet, it appears on
the user’s timeline in the same form as on the original user’s timeline, but with a notation
indicating that the post was retweeted. Id. ¶ 21.
Replies and comment threads. A Twitter user can also reply to other users’ tweets.
Generally, a reply can be up to 140 characters in length and can include photographs, videos, and
links. A reply appears on the user’s timeline under a tab labeled “Tweets & replies.” The reply
may also be viewed from the original user’s feed by clicking on the tweet that prompted the
reply—the reply will appear below the original tweet, along with other replies to the same tweet.
Id. ¶ 22. A Twitter user can also reply to other replies. A user whose tweet generates replies will
see the replies below his or her original tweet, with any replies-to-replies nested below the
replies to which they respond. Twitter is called a “social” media platform in large part because of
these comment threads, which reflect multiple overlapping conversations among and across

6

groups of users. Id. ¶ 23. Below is a recent @realDonaldTrump tweet that prompted tens of
thousands of comments, including the four shown below (annotated in red):

7

Blocking. Users may choose to exclude other users from viewing and responding to their
tweets by using Twitter’s “blocking” function. When logged into his or her account, a blocked
user cannot see or reply to the blocking user’s tweets, view the blocking user’s list of followers
or followed accounts, or use the Twitter platform to search for the blocking user’s tweets. The
blocking user will not be notified if the blocked user mentions her; nor will the blocking user see
any tweets posted by the blocked user. Id. ¶ 28.
If the blocked user attempts to follow the blocking user, or to access the Twitter webpage
from which the user is blocked, the user will see a message indicating that the other user has
blocked her from following the account and viewing the tweets associated with the account. Id. ¶
29. This is an example of a notification from Twitter that a user has been blocked:

8

Muting. An alternative to blocking a user is to “mute” him or her. Twitter, “Muting
Accounts on Twitter,” https://support.twitter.com/articles/20171399.2 A user who mutes a
follower does not see the tweets or replies of the muted account, but the follower is still able to
view and reply to the muting user’s tweets. Id. The reply tweets of the muted person will appear
in comment threads and be visible to other followers, but they will not be visible to the account
holder. Id.
B.

The @realDonaldTrump Twitter account.

With the assistance of his White House staff, President Trump operates and oversees a
verified Twitter account with the handle @realDonaldTrump. Id. ¶¶ 9, 12, 39. Defendant Dan
Scavino, the White House Social Media Director and Assistant to the President, id. ¶ 12, “assists
President Trump in operating the @realDonaldTrump account, including by drafting and posting
tweets to the account.” Id. ¶ 39. Other White House aides “also suggest content for
@realDonaldTrump tweets.” Id. Mr. Scavino “has access to the @realDonaldTrump account,
including the access necessary to block and unblock individuals from the @realDonaldTrump
account.” Id. ¶ 12.
Since President Trump’s inauguration in January 2017, the President and his aides have
used the @realDonaldTrump account as a channel for communicating with the public about his
presidency. Id. ¶ 32.3 The account is used by the President and his aides to make formal
announcements, defend the President’s official actions, report on meetings with foreign leaders,
and promote the administration’s positions on health care, immigration, foreign affairs, and other
2

See Stip. at 3 n.2 (“The parties agree that the Court may take judicial notice of the
information published in the ‘Using Twitter’ and ‘Policies and reporting’ guides available on
Twitter’s ‘Twitter Support’ webpage, https://support.twitter.com/.”).
3

The President and his aides tweeted from the @realDonaldTrump account 1,556 times
between Inauguration Day and September 25, 2017. All of the tweets are reproduced in an
exhibit to the parties’ joint stipulation. Id. Ex. A.
9

matters. Id. ¶ 38. The President has described his use of Twitter as “MODERN DAY
PRESIDENTIAL,” his aides have stated that tweets from @realDonaldTrump should be
understood as “official statements by the President of the United States,” id. ¶ 37, and the tweets
have been treated as such by the National Archive and Records Administration and federal
courts. Id. ¶ 40.
As of the date of the joint stipulation, @realDonaldTrump had 35 million followers, id. ¶
36, a number which continues to grow. See https://twitter.com/realDonaldTrump?ref_src=
twsrc%5Egoogle%7Ctwcamp%5Eserp%7Ctwgr%5Eauthor (reflecting over 41 million followers
as of November 3, 2017). Each of the President’s tweets generates thousands of replies—some of
which generate hundreds or thousands of replies in turn. Stip. ¶¶ 41–42.
C.

Defendants’ blocking of
@realDonaldTrump account.

the

Individual

Plaintiffs

from

the

Plaintiffs include seven individuals who have been blocked from the @realDonaldTrump
account because of opinions they expressed in replies to the President’s tweets about official
government matters. For example, Rebecca Buckwalter, a writer and political consultant, was
blocked by the President on June 6, 2017. That morning, the President tweeted, “Sorry folks, but
if I would have relied on the Fake News of CNN, NBC, ABC, CBS washpost or nytimes, I
would have had ZERO chance of winning WH.” Ms. Buckwalter was blocked after she tweeted
in reply, “To be fair you didn’t win the WH: Russia won it for you.” Id. ¶ 46. Eugene Gu, a
surgical resident at Vanderbilt University Medical Center, was blocked by the President on June
18, 2017, after Dr. Gu responded to a tweet by President Trump discussing his approval rating by
tweeting, “Covfefe: The same guy who doesn’t proofread his Twitter handles the nuclear
button.” Id. ¶ 49. Police officer Brandon Neely was blocked by the President on June 12, 2017,
after he responded to a tweet by President Trump relating to the opening of a new coal mine by

10

tweeting, “Congrats and now black lung won’t be covered under #TrumpCare.” Id. ¶ 50. And
Joseph Papp, an anti-doping advocate and author, was blocked by the President on June 3, 2017,
after he replied to the President’s tweet of his weekly presidential address with a pair of linked
tweets stating, “Greetings from Pittsburgh, Sir,” and “Why didn’t you attend your
#PittsburghNotParis rally in DC, Sir? #fakeleader.” Id. ¶ 51.
As a result of the President’s blocking, Individual Plaintiffs cannot view the President’s
tweets, reply directly to those tweets, or view the comment threads associated with those tweets
while they are logged into their Twitter accounts. Id. ¶ 54. They can access the President’s tweets
only by logging out of their accounts and using a search engine to view the @realDonaldTrump
timeline, by using a private browsing window (such as an “incognito” browsing window), or by
logging into an account that has not been blocked. Id. ¶¶ 55, 56. All of these “workarounds”
require the Individual Plaintiffs to expend additional time and effort in order to read and respond
to the President’s tweets—that is, to expend time and effort that they would not have to expend if
they had not criticized the President or his policies. Id. ¶¶ 56, 58–60.
LEGAL STANDARD
Summary judgment is appropriate when the moving party “shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). “A fact is ‘material’ when it might affect the outcome of the suit under governing
law,” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007) (internal quotation
marks and citation omitted), and “[a] genuine dispute exists if a reasonable factfinder could
decide in the nonmoving party’s favor,” Universal Church, Inc. v. Universal Life Church/ULC
Monastery, No. 14 Civ. 5213, 2017 WL 3669625, at *4 (S.D.N.Y. Aug. 8, 2017). “When crossmotions for summary judgment are made the standard is the same; each motion must be

11

considered independently of the other and, when evaluating each, the court must consider the
facts in the light most favorable to the non-moving party.” Sullivan v. Met. Trans. Auth. Police
Dep’t, No. 13 Civ. 7677, 2017 WL 4326058, at *5 (S.D.N.Y. Sept. 13, 2017).
ARGUMENT
I.

Defendants’ blocking of the Individual Plaintiffs from @realDonaldTrump violates
the First Amendment.
A.

The @realDonaldTrump account is subject to the First Amendment.

The undisputed facts establish that Defendants use the @realDonaldTrump account as an
instrument of governance. The account is accordingly subject to the First Amendment.
To begin, the main webpage of @realDonaldTrump bears all the indicia of an official
account. The page is registered to Donald J. Trump, “45th President of the United States of
America, Washington, D.C.” Stip. ¶ 35. Since inauguration, the account’s header photographs
have been images associated with the President’s official duties. They have shown the President
signing an executive order in the Oval Office, delivering official remarks at the White House and
other locations, and meeting with the Pope, heads of state, and other foreign dignitaries. Id. ¶ 35
& Ex. B. The President and his aides treat the @realDonaldTrump account as interchangeable
with the other official White House Twitter accounts. For example, the @WhiteHouse account
directs Twitter users to “Follow for the latest from @POTUS @realDonaldTrump and his
Administration,” and tweets from @realDonaldTrump are frequently retweeted by @POTUS
and @WhiteHouse (and vice versa). Id. ¶ 37.
Tweets from @realDonaldTrump since the President’s inauguration overwhelmingly
concern his official duties and decisions.4 Defendants routinely use the account to announce

4

Defendants cite a handful of instances in which the President used the @realDonaldTrump
account to post more personal information, Gov’t Br. at 13 n.7, but even a cursory review of
12

official decisions, offer official comment on news developments, describe the administration’s
foreign policy decisions, and promote the administration’s policies. Id. ¶ 38. For example:
•

On June 7, 2017, the White House5 used the account to announce for the first
time that the President would nominate Christopher Wray for the position of
FBI Director. Id.

•

On June 22, 2017, the White House used the account to declare that the
President did not possess tapes of conversations with former FBI Director
James Comey. Id.

•

On July 26, 2017, the White House used the account to announce that the
President would ban transgender individuals from serving in the military. Id.
¶ 41.

•

On July 28, 2017, the White House used the account to inform the public that
the President had fired his first chief of staff, Reince Priebus, and replaced
him with then–Secretary of Homeland Security General John F. Kelly. Id.
Ex. A at 22.

•

On August 7, 2017, the White House used the account to inform the public
about the President’s discussions with the South Korean president concerning
North Korea’s nuclear program. Id. Ex. A at 19.

•

On September 5, 2017, the White House used the account to announce the
President’s decision to “allow[] Japan & South Korea to buy a substantially
increased amount of highly sophisticated military equipment from the United
States.” Id. Ex. A at 9.

•

On September 21, 2017, the White House used the account to announce a new
executive order aimed at denuclearization of North Korea. Id. Ex. A at 2.

The President and his aides have described the account as an official one. For example,
on July 2, 2017, the President tweeted, “My use of social media is not Presidential – it’s
MODERN DAY PRESIDENTIAL.” Id. ¶ 37. On June 6, 2017, then–White House Press

Exhibit A to the joint stipulation shows that the President has used the account for such purposes
only very rarely.
5

Defendants concede that Mr. Scavino and other unnamed White House aides assist in
drafting tweets and administering the @realDonaldTrump account. Stip. ¶¶ 12, 39. Plaintiffs
attribute tweets from @realDonaldTrump to the “White House” because it is not clear which
specific individuals were involved in drafting or posting any particular tweet.
13

Secretary Sean Spicer stated at a press conference that President Trump’s tweets should be
considered “official statements by the President of the United States.” Id. Defendant Scavino has
promoted @realDonaldTrump, @POTUS, and @WhiteHouse equally as channels through which
“President Donald J. Trump . . . [c]ommunicat[es] directly with you, the American people!” Id.
The White House also responded to a request for official White House records from the House
Permanent Select Committee on Intelligence by referring the Committee to the President’s
“statement” made on Twitter on June 22, 2017. Id.
The participation of White House staff in the day-to-day operation of the
@realDonaldTrump account is further evidence that the account is being used for official
purposes. Defendant Scavino “assists President Trump in operating the @realDonaldTrump
account, including by drafting and posting tweets to the account.” Id. ¶ 39; see also id. ¶ 12
(“Mr. Scavino posts messages on behalf of President Trump to @realDonaldTrump and other
social media accounts, including @POTUS and @WhiteHouse.”). “President Trump also
sometimes dictates tweets to Mr. Scavino, who then posts them on Twitter,” and “President
Trump and/or Mr. Scavino sometimes retweet the tweets of those who participate in comment
threads associated with the @realDonaldTrump account.” Id. ¶ 39. Official staff involvement is
not limited to Mr. Scavino, as “[o]ther White House aides besides Mr. Scavino will, in certain
instances, also suggest content for @realDonaldTrump tweets.” Id. And Mr. Scavino “has access
to the @realDonaldTrump account, including the access necessary to block and unblock
individuals from the @realDonaldTrump account.” Id. ¶ 12.
Federal agencies and federal courts have treated the @realDonaldTrump account as a
source of official government statements. The National Archives and Records Administration
has advised the White House that the President’s tweets must be preserved as official records

14

under the Presidential Records Act. Id. ¶ 40. The Ninth Circuit cited one of the President’s
tweets in striking down an executive order restricting immigration. Hawaii v. Trump, 859 F.3d
741, 773 n.14 (9th Cir. 2017), vacated and cert. granted sub nom. Trump v. Int’l Refugee
Assistance Project, No. 16-1436, 2017 WL 2722580 (U.S. June 26, 2017) (noting the White
House Press Secretary had indicated that the President’s tweets should be treated as official
statements); Stip. ¶ 40. A district court recently relied on the White House’s tweets in striking
down the President’s proposed ban on transgender individuals from military service. Doe 1 v.
Trump, No. 17-1597, 2017 WL 4873042, at *7 (D.D.C. Oct. 30, 2017) (describing tweets from
@realDonaldTrump as the President’s “statement[s] via Twitter”).
Against this background, it is plain that the @realDonaldTrump account is being used as
an instrument of governance, and accordingly that it is subject to the First Amendment. Davison
v. Loudoun County Board of Supervisors, 2017 WL 3158389, is instructive. That case presented
the question whether the First Amendment applied to a county official’s Facebook page. The
court considered whether the Facebook page “possessed the ‘requisite nexus’ with [her] ‘public
office’ to be fairly attributable to the government.” Id. at *6 (quoting Rossignol v. Voorhaar, 316
F.3d 516, 523 (4th Cir. 2003)). The official argued that her Facebook page was personal, not
official, because she had created it before assuming office and occasionally posted personal
content. The court disagreed, finding that the official used the Facebook page “as a tool of
governance.” Id. at *7. The court noted that the official had used government resources
(including her staff) to administer the page; that she had used the page “to keep her constituents
abreast of her activities as Chair and of important events in local government”; that county
newsletters directed constituents to the page; and that the official had made efforts to “swathe the
. . . page in the trappings of her office.” Id.

15

All of the indicia of state action that the court identified in Davison are present here. As
in Davison, the @realDonaldTrump account is properly understood as an official account subject
to the First Amendment.
Defendants’ arguments to the contrary are unpersuasive. Defendants emphasize that the
President established the @realDonaldTrump account before he became President, Gov’t Br. at
12, but that is not dispositive. The appropriate inquiry is functional rather than formalistic. Thus,
the Second Circuit has made clear that “there is no bright line test for distinguishing ‘personal
pursuits’ from activities taken under color of law.” Instead, “courts look to the nature of the
officer’s act,” not simply to whether the officer is on or off duty or using private or government
property. Pitchell v. Callan, 13 F.3d 545, 548 (2d Cir. 1994); see Monsky v. Moraghan, 127 F.3d
243, 246 (2d Cir. 1997) (judge acted under color of law by bringing his dog to the clerk’s office,
where it “aggressively nuzzled” under women’s skirts); see also United States v. Giordano, 442
F.3d 30, 43 (2d Cir. 2006) (Sotomayor, J.).6
The crucial fact here is that, since the President’s inauguration, the President and his staff
have used the @realDonaldTrump account almost exclusively for official purposes. Contrary to
Defendants’ suggestion, this is not a situation where the President has made an isolated official
statement in an otherwise personal or private setting. Gov’t Br. at 13. Instead, the President and
his aides operate the @realDonaldTrump account as a complement to (or substitute for) other
official communications channels, including the White House’s other Twitter accounts,
@POTUS and @WhiteHouse. Moreover, Defendants’ decision to block the Individual Plaintiffs
was based on the Individual Plaintiffs’ responses to the President’s tweets about official matters.
6

In analogous circumstances, the D.C. Circuit has held that an agency official may not avoid
the requirements of the Freedom of Information Act by using a private email system for official
communications. Competitive Enter. Inst. v. Office of Sci. and Tech. Policy, 827 F.3d 145, 149
(D.C. Cir. 2016).
16

In this context, Defendants cannot avoid the constraints of the First Amendment. Cf. Rossignol v.
Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (off-duty police officers acted under color of law
when they seized all copies of local newspaper in retaliation for previous criticism of their fitness
for office); see also Davison, 2017 WL 3158389, at *8 (holding that, even “assuming the specific
act of banning Plaintiff from the ‘Chair Phyllis J. Randall’ Facebook Page can be analyzed
separately, this likewise ‘arose out of public, not personal, circumstances’” (quoting Rossignol,
316 F.3d at 524)).
B.

Defendants are violating the First Amendment by excluding the Individual
Plaintiffs from a public forum based on viewpoint.
1.

The @realDonaldTrump account is a designated public forum.

“[A] public forum may be created by government designation of a place or channel of
communication for use by the public at large for assembly and speech.” Cornelius v. NAACP
Legal Defense and Educ. Fund, Inc., 473 U.S. 788, 802 (1985); see also Perry Educ. Ass’n v.
Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983); Make The Road by Walking, Inc. v.
Turner, 378 F.3d 133, 142–43 (2d Cir. 2004). In determining whether government officials have
created a designated public forum, courts consider the forum’s compatibility with expressive
activity and whether the government’s overall “policy and past practice” shows that the forum is
intended to be used for speech by the public. See Paulsen v. Cty. of Nassau, 925 F.2d 65, 69 (2d
Cir. 1991); see also Cornelius, 473 U.S. at 802.
The @realDonaldTrump account is a designated public forum. There is no question that
the forum at issue here is compatible with expressive activity—the entire purpose of a Twitter
account is to facilitate speech. The account is a “metaphysical space,” in the language of the
Supreme Court, Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 830 (1995), in
which the President speaks and members of the public respond to, and engage with one another

17

about, those statements. See id. (applying public forum analysis to student newspaper funding);
see Perry Educ. Ass’n, 460 U.S. at 46–47 (school mail system); Cornelius, 473 U.S. at 801
(charitable contribution program). The forum thus includes speech by the President as well as
speech by ordinary citizens—in the same way that a town hall meeting ordinarily encompasses
speech by government officials as well as speech by the assembled public.
That the White House purposefully opened this forum to speech by the general public is
evidenced by the conduct and statements of the President and his aides, and by their decision to
use Twitter, an inherently interactive platform. The President and his aides regularly retweet the
tweets of supporters who have replied to @realDonaldTrump, evidence that they are attentive to
the reply tweets in the comment threads. E.g., Stip. Ex. A. at 3–4, 9, 13, 20. (That Defendants
have blocked the Individual Plaintiffs for their replies to the President’s tweets is further
evidence that Defendants are attentive to the comment threads.) Defendants elected to use an
interactive platform, and they make extensive use of the platform’s interactive features. It bears
emphasis that the defining feature of Twitter is its facilitation of real-time interaction. See
Twitter, “About,” https://about.twitter.com/. As the Supreme Court emphasized in Packingham,
social media platforms like Twitter offer “perhaps the most powerful mechanisms available to a
private citizen to make his or her voice heard,” in part because these platforms permit citizens to
“engage with [their elected representatives] in a direct manner.” Packingham, 137 S. Ct. at 1737.
The decision of the President and his aides to use Twitter, specifically, to communicate with the
public is powerful evidence of an intent to create a forum open to speech by the public at large.
The White House’s overall policy and practice relating to the @realDonaldTrump
account likewise evidences such an intent. The account is accessible to anyone with a Twitter
account without regard to political affiliation or any other limiting criteria. Stip. ¶ 36. Defendants

18

have not published any rule or policy purporting to restrict, by form or subject matter, the speech
of those who participate in the forum. Id. Nor have they sought to limit the forum to specific
classes of speakers based on their status—e.g., to the President’s family, friends, or business
colleagues. They have permitted anyone who wants to follow the account to do so. Over forty
million Twitter users now follow it. The only users who cannot participate in the forum are those
whom the President and his aides have selectively blocked.7
Again, the @realDonaldTrump account functions like a digital town hall meeting—one
in which the President stands at the front of the room and assembled citizens respond to his
statements and engage with each other about those statements. The courts have long recognized
that these types of meetings constitute designated public forums. See, e.g., Surita v. Hyde, 665
F.3d 860, 869 (7th Cir. 2011) (expressing “no doubt” that “audience time during . . . city council
meetings constituted a designated public forum); White v. City of Norwalk, 900 F.2d 1421, 1425
(9th Cir. 1990) (“City Council meetings . . . where the public is afforded the opportunity to
address the Council[] are the focus of highly important individual and governmental interests
. . . . [S]uch meetings, once opened, have been regarded as public forums, albeit limited ones.”);
Jones v. Heyman, 888 F.2d 1328, 1331 (11th Cir. 1989) (“[T]he city commission designated
their meeting a public forum when the commission intentionally opened it to the public and
permitted public discourse on agenda items.”); see also Musso v. Hourigan, 836 F.2d 736, 742
(2d Cir. 1988) (noting that public speech is usually allowed at an open school board meeting); cf.
City of Madison Joint Sch. Dist. No. 8 v. Wis. Emp’t Relations Comm’n, 429 U.S. 167, 175
7

Because Defendants have opened the @realDonaldTrump account to the general public
without any limiting criteria, the account is properly characterized as a designated public forum
rather than a limited public forum. See R.O. ex rel. Ochshorn v. Ithaca City Sch. Dist., 645 F.3d
533, 539 (2d Cir. 2011). The type of forum is not dispositive in this case, however, because
viewpoint discrimination is impermissible even in limited and nonpublic forums. See Make the
Road by Walking, 378 F.3d at 143.
19

(1976) (holding that government could not exclude people from open school board meetings
based on viewpoint).
Defendants’ argument that the @realDonaldTrump account is government speech, Gov’t
Br. at 14–17, is misguided. The government speech doctrine holds that government officials need
not maintain viewpoint neutrality when they articulate the government’s policies. See, e.g.,
Matal v. Tam, 137 S. Ct. 1744, 1757 (2017). That principle plainly applies to the President’s
tweets. It does not, however, apply to the comment threads, in which thousands of ordinary
citizens respond to the President and engage with one another. The comment threads are not
government speech, and no one would mistake them for it. Cf. Pleasant Grove City, Utah v.
Summum, 555 U.S. 460, 472 (2009) (privately donated monuments displayed by city “are meant
to convey and have the effect of conveying a government message, and they thus constitute
government speech”). The mere fact that @realDonaldTrump’s tweets constitute government
speech does not mean that the comment threads associated with his tweets are something other
than a public forum. Indeed, every city council and town hall meeting includes government
speech.
In addition, Defendants miss the point when they suggest that the @realDonaldTrump
account is not a public forum because the President and his aides have opted to use a privately
run platform. See Gov’t Br. at 20. The public forum doctrine is not inapplicable simply because
the government uses private rather than public property to establish a space for expression. See,
e.g., Se. Promotions Ltd. v. Conrad, 420 U.S. 546, 555 (1975) (holding that a privately owned
theater leased by a city was a public forum); Am. Broad. Cos. v. Cuomo, 570 F.2d 1080, 1083
(2d Cir. 1977) (applying public forum doctrine to private campaign headquarters); Davison, 2017
WL 3158389, at *10 (applying public forum analysis to county official’s Facebook page); see

20

also Denver Area Ed. Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727, 792 (1996) (Kennedy,
J., concurring in part) (public fora are not “limited to property owned by the
government”); Cornelius, 473 U.S. at 801 (noting that public forum analysis applies to “public
property or private property dedicated to public use”).
Defendants’ last line of defense to the public forum claim—that the President has a
“right” not to hear from critics, Gov’t Br. at 17—is exactly backwards. The courts have
repeatedly recognized our “profound national commitment to the principle that debate on public
issues should be uninhibited, robust, and wide-open,” and they have repeatedly observed that this
debate “may well include vehement, caustic, and sometimes unpleasantly sharp attacks on
government and public officials.” N.Y. Times v. Sullivan, 376 U.S. 254, 270 (1964); see also
Monitor Patriot Co. v. Roy, 401 U.S. 265, 274 (1971); Baumgartner v. United States, 322 U.S.
665, 673–74 (1944). The suggestion that public officials enjoy a right to insulate themselves
from criticism of their actions and policies is incorrect. Moreover, Defendants’ argument that by
blocking the Individual Plaintiffs and other critics the President is merely “select[ing] the
information he consumes and the users with whom he wants to interact,” Gov’t Br. at 17,
mischaracterizes the implications of Defendants’ conduct. By blocking the Individual Plaintiffs,
the President and his aides do not merely insulate the President from viewpoints to which he
would prefer not to be exposed. They also prevent the Individual Plaintiffs from viewing the
President’s tweets, replying directly to those tweets, or viewing the comment threads associated
with those tweets while they are logged into their Twitter accounts. Stip. ¶ 54.8 Blocking also

8

Defendants argue that there is no injury because “[a] blocked user can still post in the
@realDonaldTrump comment threads.” Gov’t Br. at 6. However, this argument overlooks that a
blocked user cannot reply to @realDonaldTrump—only to those who reply to him. Stip. ¶¶ 55–
56. The difference is significant. Id. ¶ 56 (“[S]ome of the Plaintiffs have stopped replying to
21

interferes with the ability of Plaintiff Knight Institute and the public to read the Individual
Plaintiffs’ critical replies in the context of the public discourse taking place in those comment
threads.9
2.

Defendants’ blocking of the Individual Plaintiffs from
@realDonaldTrump is unconstitutional viewpoint discrimination.

The First Amendment forecloses the government from excluding individuals from a
designated public forum based on viewpoint. See, e.g., Rosenberger, 515 U.S. at 828, 829–30
(“It is axiomatic that the government may not regulate speech based on its substantive content or
the message it conveys,” and the government is forbidden from engaging in viewpoint
discrimination “even when the . . . public forum is one of its own creation”); Make The Road by
Walking, 378 F.3d at 143 (explaining that viewpoint discrimination is prohibited by the First
Amendment even in limited and non-public forums); Davison, 2017 WL 3158389, at *10 (same).
Here, there is no dispute that Defendants blocked the Individual Plaintiffs because of
their viewpoints. Moreover, the record makes clear that the injury to Plaintiffs’ speech rights is
tangible and real. As a result of the blocking, the Individual Plaintiffs cannot read or respond to
replies to @realDonaldTrump tweets altogether, while others reply less frequently than if they
had not been blocked.”).
9

Defendants’ actions also violate the First Amendment rights of the Knight Institute to
receive the dissenting speech blocked by Defendants. See, e.g., Bd. of Educ., Island Trees Union
Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 867 (1982) (plurality opinion); Kleindienst v.
Mandel, 408 U.S. 753, 762–63 (1972). Contrary to Defendants’ argument, Gov’t Br. at 5–7, the
Knight Institute has standing to assert a First Amendment claim because it has suffered a
particularized injury—injury to its right to receive information. See Va. State Board of Pharmacy
v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 756–57 (1976) (holding that prescription
drug consumers had standing to challenge state restriction on drug advertising as violating their
right to receive information). “The fact that an injury may be suffered by a large number of
people does not of itself make that injury a nonjusticiable generalized grievance.” Spokeo, Inc. v.
Robins, 136 S. Ct. 1540, 1548 n.7 (2016). Nor is there any merit to Defendants’ suggestion that
the Knight Institute has not adequately alleged that it reads the comment threads on
@realDonaldTrump. That fact can be inferred from the fact that the Knight Institute follows
@realDonaldTrump. Stip. ¶ 1.
22

tweets from @realDonaldTrump while they are signed into their accounts. Stip. ¶ 28. All of the
purported “workarounds” are burdensome and time-consuming. And the Individual Plaintiffs’
speech is burdened in this way only because they made statements criticizing the President. No
conceivable government interest could justify the imposition of this burden on Plaintiffs’ core
political speech. See, e.g., Tam, 137 S. Ct. at 1765 (“[I]t is a fundamental principle of the First
Amendment that the government may not punish or suppress speech based on disapproval of the
ideas or perspectives the speech conveys.”); Rosenberger, 515 U.S. at 829 (observing that
viewpoint discrimination is “blatant,” “egregious,” and presumptively unconstitutional).
C.

Defendants are violating the First Amendment by restricting the Individual
Plaintiffs’ access to generally available government information based on
their viewpoints.

Defendants’ blocking of the Individual Plaintiffs from the @realDonaldTrump account
violates the First Amendment for the independent reason that it imposes a viewpoint-based
burden on the Individual Plaintiffs’ access to government information that Defendants otherwise
make generally available to the public. Plaintiffs do not contend that the First Amendment
requires Defendants to make the @realDonaldTrump account accessible to the public at large.
Having decided to make the President’s statements generally available, however, Defendants
cannot constitutionally restrict the Individual Plaintiffs from accessing those statements simply
because the President disagrees with their views.
As the Supreme Court observed last term, “[t]he Government ‘may not deny a benefit to
a person on a basis that infringes [the First Amendment] even if he has no entitlement to that
benefit.’” Tam, 137 S. Ct. at 1760–61 (quoting Agency for Int’l Dev. v. Alliance for Open Society
Int’l, Inc., 133 S. Ct. 2321, 2328 (2013)). Applying this principle in Tam, the Supreme Court
invalidated a statutory ban on the registration of “disparag[ing]” trademarks on the ground that

23

the restriction discriminated based on viewpoint. The Court invalidated the ban even though
trademark holders do not have a freestanding right to the benefits of trademark registration. Id. at
1675, 1752–53.
The principle that the Court applied in Tam was endorsed by eight Justices of the
Supreme Court fourteen years earlier, in Los Angeles Police Department v. United Reporting
Publishing Corporation, 528 U.S. 32, 43 (1999). United Reporting involved a challenge to the
LAPD’s withholding of information concerning arrestees. The Court held that the plaintiffs
lacked standing, but eight Justices made clear that the First Amendment foreclosed the
government from using viewpoint as a criterion for withholding from some individuals
information otherwise made accessible to all. United Reporting, 528 U.S. at 43 (Ginsburg, J.,
concurring) (“[O]nce a [government entity] decides to make such a benefit available to the
public,” it may not exclude potential recipients of that information on the basis of “an
illegitimate criterion such as viewpoint.”); id. at 42 (Scalia, J., concurring) (suggesting that an asapplied First Amendment challenge to “a restriction upon access that allows access to the
press . . . but at the same time denies access to persons who wish to use the information for
certain speech purposes” would be cognizable); id. at 45–46 (Stevens, J., dissenting) (opining
that the First Amendment is violated “when the State makes information generally available, but
denies access to a small disfavored class” based on viewpoint or political affiliation); see also
Sorrell v. IMS Health Inc., 564 U.S. 552, 569 (2011) (invalidating law that imposed content- and
speaker-based restrictions on access to pharmacy prescription information and observing that
“restrictions on the disclosure of government-held information can facilitate or burden the
expression of potential recipients and so transgress the First Amendment”); Am. Broad. Cos.,
570 F.2d at 1083 (“We think that once there is a public function, public comment, and

24

participation by some of the media, the First Amendment requires equal access to all of the
media or the rights of the First Amendment would no longer be tenable.”); Nicholas v. City of
New York, No. 15-cv-9592, 2017 WL 766905, at *5 (S.D.N.Y. Feb. 27, 2017) (holding that
plaintiff stated “First Amendment claim based on the arbitrary or else viewpoint-based exclusion
of some photographers” from accident scene).
The principle that the Supreme Court articulated in United Reporting, Sorrell, and Tam
applies here. Defendants acknowledge that the @realDonaldTrump account includes government
information. Stip. ¶¶ 32, 38; see generally Stip. Ex. A. They acknowledge that they have made
the information available, without restriction, to the general public. Stip. ¶ 36. And they
acknowledge that the Individual Plaintiffs have been burdened in accessing that information
simply because the President disagrees with their political views. Stip. at 1. Collectively, these
acknowledgements establish that Defendants are violating the First Amendment.
D.

Defendants’ blocking of the Individual Plaintiffs imposes an unconstitutional
restriction on their First Amendment right to petition the government for
redress of grievances.

Defendants’ blocking of the Individual plaintiffs also violates the First Amendment
because it imposes a viewpoint-based burden on their right “to petition the Government for a
redress of grievances.” U.S. Const. amdt. I. Though the right to speak and the right to petition are
related, they are not duplicative: “The right to petition allows citizens to express their ideas,
hopes, and concerns to their government and their elected representatives, whereas the right to
speak fosters the public exchange of ideas that is integral to deliberative democracy as well as to
the whole realm of ideas and human affairs.” Borough of Duryea, Pa. v. Guarnieri, 564 U.S.
379, 388 (2011). Accordingly, the Supreme Court has counseled courts not to “presume . . . that
Speech Clause precedents necessarily and in every case resolve Petition Clause claims.” Id.; see,

25

e.g., BE & K Constr. Co. v. NRLB, 536 U.S. 516, 536–37 (2002) (interpreting labor law to avoid
infringement of right to petition as Noerr-Pennington doctrine did in antitrust law).
Defendants’ blocking of the Individual Plaintiffs would violate the Petition Clause even if
the @realDonaldTrump account were not a public forum, see Part I.B.1, supra, and even if
Defendants’ blocking of the Individual Plaintiffs were not an unconstitutional restriction of an
access right otherwise extended to all, see Part I.C, supra. This is because the
@realDonaldTrump account is, among other things, a channel through which ordinary citizens
can petition the President directly about his administration’s practices and policies. Indeed, the
Supreme Court observed just last Term that Twitter’s interactive features make the platform
especially suited to this purpose. Packingham, 137 S. Ct. at 1735 (“[O]n Twitter, users can
petition their elected representatives and otherwise engage with them in a direct manner.”); cf.
Mirabella v. Villard, 853 F.3d 641, 647 (3d Cir. 2017) (addressing petition via email). Moreover,
the Individual Plaintiffs were blocked after they used the channel for the purpose of petitioning
the President about his administration’s policies. See Stip. ¶¶ 46–52; see Guarnieri, 564 U.S. at
394–95 (noting that petitions “assume an added dimension when they seek to advance political,
social, or other ideas of interest to the community as a whole”).10
Plaintiffs do not contend that Defendants are required to make the @realDonaldTrump
account available as a channel through which members of the public may exercise their Petition
Clause rights. Nor do Plaintiffs contend that the First Amendment requires Defendants to
10

The First Amendment protects the right to petition even when the right is exercised in a
manner that officials deem to be offensive. See, e.g., U.S. Postal Serv. v. Hustler Magazine, Inc.,
630 F. Supp. 867, 871 (D.D.C. 1986) (“As elected representatives of the people,” members of
Congress “cannot simply shield themselves from undesirable mail in the same manner as an
ordinary addressee.”) Thus, Defendants are wrong to propose that the President has a right to
shield himself from constituent viewpoints he finds undesirable. Cf. Gov’t Br. at 14, 17–18
(asserting the President’s right “to choose the information he consumes and the individuals with
whom he interacts . . . even when those choices are made on the basis of viewpoint”).
26

respond to the public’s petitions, or even to read them. Having made the channel available,
however, Defendants cannot constitutionally close the channel solely to those who disagree with
the President or his policies. See Bd. of Cty. Comm’rs, Wabaunsee Cty., Kan. v. Umbehr, 518
U.S. 668, 680 (1996) (noting that “the government has no legitimate interest in repressing”
“ordinary citizens[’] . . . viewpoints on matters of public concern”); see Lamb’s Chapel v. Ctr.
Moriches Union Free School Dist., 508 U.S. 384, 394 (1993) (“[T]he First Amendment forbids
the government to regulate speech in ways that favor some viewpoints or ideas at the expense of
others.”); Mirabella, 853 F.3d at 649–50 (holding retaliation for petition activity
unconstitutional).
II.

The Court has jurisdiction to provide relief in this case.
Contrary to Defendants’ argument, the Court has jurisdiction to order the declaratory and

injunctive relief necessary to remedy the First Amendment violations described above. The
injuries that Plaintiffs have suffered here are quintessentially cognizable injuries in fact. See
Elrod v. Burns, 427 U.S. 347, 373 (1976). They are traceable to Defendants’ actions. Stip. ¶¶ 12,
46–54. And the relief sought—injunctive and declaratory relief against the President and his
aides—would provide redress. Chevron Corp. v. Donziger, 833 F.3d 74, 120–21 (2d Cir. 2016).
Citing the principle of separation of powers, Defendants contend that the President’s
unconstitutional conduct is beyond the reach of the Court. None of the precedents they cite
supports this contention, and indeed to adopt it would turn the separation of powers on its head.
A.

The Court has jurisdiction to order equitable relief against the President in
this case.

Defendants argue that the President is above the law. He is not. It is the courts’
constitutional duty “‘to say what the law is’ in particular cases and controversies,” Plaut v.
Spendthrift Farm, Inc., 514 U.S. 211, 218 (1995) (quoting Marbury v. Madison, 1 Cranch 137,

27

177 (1803)), and this obligation is, if anything, especially crucial when the lawfulness of the
President’s conduct is at issue. Boumediene v. Bush, 553 U.S. 723, 765 (2008) (“To hold that the
political branches have the power to switch the Constitution on or off at will . . . would permit a
striking anomaly in our tripartite system of government, leading to a regime in which Congress
and the President, not this Court, say ‘what the law is.’” (citation omitted)). In this case,
Plaintiffs contend that the President and his aides have violated rights protected by the First
Amendment, causing them concrete injury. Resolving disputes like this one is what the courts are
for. Raines v. Byrd, 521 U.S. 811, 829 (1997) (the “irreplaceable value” of the core judicial
power “lies in the protection it has afforded the constitutional rights and liberties of individual
citizens and minority groups against oppressive or discriminatory government action.” (citation
omitted)).
Defendants’ contention that the Court lacks authority to issue injunctive relief against the
President is belied by Supreme Court precedent. “[I]t is settled law that the separation-of-powers
doctrine does not bar every exercise of jurisdiction over the President of the United States.”
Clinton v. Jones, 520 U.S. 681, 705 (1997) (quoting Nixon v. Fitzgerald, 457 U.S. 731, 753–54
(1982)). The Supreme Court has observed that “the Judiciary may severely burden the Executive
Branch by reviewing the legality of the President’s official conduct, and . . . it may direct
appropriate process to the President himself” in appropriate cases. Jones, 520 U.S. at 705.
Immunity is available only if the government justifies it in a particular context. Forrester v.
White, 484 U.S. 219, 224 (1988). The courts recognize presidential immunity only where “the
dangers of intrusion on the authority and functions of the Executive Branch” outweigh “the
constitutional weight of the interest to be served” by the court’s exercise of jurisdiction. ; United

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States v. Nixon, 418 U.S. 683, 711–13 (1974)Nixon v. Fitzgerald, 457 U.S. 731, 754 (1982); cf.
Forrester, 484 U.S. at 224.
Here, the injury to Plaintiffs’ constitutional rights is clear, and the weight of the
“constitutional . . . interest to be served” by the Court’s exercise of jurisdiction is substantial, but
Defendants have failed to identify any specific “authority or function[] of the Executive Branch”
that could be compromised by the entry of injunctive relief. Nor could they. Enjoining the
President from excluding critics from his Twitter account would not interfere in any way with
the President’s exercise of the powers that the Constitution vests in him, or with the discharge of
duties that the Constitution assigns to him. Cf. United States v. Nixon, 418 U.S. at 711–13
(weighing vindication of Fifth and Sixth Amendment rights against President Nixon’s
“generalized interest in confidentiality” as it “relates to the effective discharge of a President’s
powers”). The courts have enjoined past presidents in contexts involving far weightier executive
interests than those at issue here. See, e.g., id. at 706 (affirming subpoena requiring President
Nixon to turn over tapes of his conversations with White House aides); Youngstown Sheet &
Tube Co. v. Sawyer, 535 U.S. 579, 582, 584, 587–88 (1952) (enjoining President Truman’s order
directing the seizure of privately owned steel mills); United States v. Burr, 25 F. Cas. 187, 191,
196 (No. 14,694) (CC Va. 1807) (affirming issuance of subpoena requiring President Jefferson to
turn over confidential correspondence); see also Nixon v. Sirica, 487 F.2d 700, 709 (D.C. Cir.
1973) (discussing presidential immunity implications of Youngstown decision). Notwithstanding
Defendants’ suggestion to the contrary, the Court’s jurisdiction is not extinguished by the mere
invocation of presidential power. United States v. Nixon, 418 U.S. at 706 (“[N]either the doctrine
of separation of powers, nor the need for confidentiality of high-level communications, without

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more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial
process under all circumstances.”).
Defendants’ reliance on Mississippi v. Johnson, 71 U.S. 475 (1866), is misplaced. In
Mississippi, “[t]he single point” under the Court’s consideration was whether “the President
[could] be restrained by injunction from carrying into effect an act of Congress alleged to be
unconstitutional.” Id. at 498. The Court recognized that such an injunction would intrude not
only upon the President’s Article II duty to “see that the laws are faithfully executed,” id. at 499,
but also on Congress’s Article I prerogative to pass legislation. The injunction Mississippi
sought—in the immediate aftermath of the Civil War—thus threatened a fundamental
constitutional conflict: if the President complied with the order, he risked impeachment for
failure to execute the laws; if he did not comply, he risked imprisonment for contempt of court.
Id. at 500–01.11 The Court invoked the separation of powers to avoid this conflict, but in doing
so, it expressly reaffirmed the judicial duty to decide cases and controversies—including those
stemming from executive acts: “The Congress is the legislative department of the government;
the President is the executive department. Neither can be restrained in its actions by the judicial
department; though the acts of both, when performed, are, in proper cases, subject to its
cognizance.” Id. at 500 (emphasis added); accord Jones, 520 U.S. at 703 (noting that the Court
has “long held that when the President takes official action, [it] has the authority to determine
whether he has acted within the law”).12

11

Two of the cases Defendants cite in support of immunity, Gov’t Br. at 9, addressed similar
requests for a court order directing or restraining the President’s execution of laws passed by
Congress. See S.F. Redevelopment Agency v. Nixon, 329 F. Supp. 672, 672 (N.D. Cal. 1971);
Suskin v. Nixon, 304 F. Supp. 71, 72–73 (N.D. Ill. 1969).
12

Defendants mischaracterize Franklin v. Massachusetts, 505 U.S. 788 (1992), as having
“reaffirmed” the immunity principle from Mississippi. Gov’t Br. at 8. Justice O’Connor’s
comment in Franklin that “injunctive relief against the President . . . should have raised judicial
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This case does not present the kind of structural conflict that were presented in
Mississippi; to the contrary, it presents exactly the kind of question that the Mississippi Court
made clear the courts should resolve. Plaintiffs’ claims here implicate neither Congress’s
authority to enact legislation nor the President’s duty to implement it. Rather, Plaintiffs challenge
specific acts, untethered from any constitutional or statutory duty, through which the President
and his aides have denied and continue to deny the Plaintiffs’ First Amendment rights to speak
and petition on matters of public concern. Neither the Supreme Court nor the Second Circuit has
ever held that the President enjoys blanket immunity from injunctive relief to remedy such
ongoing constitutional violations.13 The Court has the authority to enjoin the President here, and
Plaintiffs respectfully request that the Court exercise that authority here. Cf. Youngstown, 343
U.S. at 655 (“With all its defects, delays and inconveniences,” citizens “have discovered no
technique for long preserving free government except that the Executive be under the law.”)
(Jackson, J., concurring).14

eyebrows” was dicta in the non-controlling, plurality part of the opinion addressing standing.
Justice O’Connor ultimately concluded that the Court “need not decide whether injunctive relief
against the President was appropriate” because the injury alleged could “be redressed by
declaratory relief against the Secretary [of Commerce] alone.” Id. at 803 (plurality opinion).
13

The remaining cases Defendants cite in support of immunity, Gov’t Br. at 9, fall into one of
two categories: either the court ordered equitable relief against the President’s subordinates in
lieu of the President, see, e.g., Hawaii, 859 F.3d at 788; Swan v. Clinton, 100 F.3d 973, 979–81
(D.C. Cir. 1996); or the court ruled against the plaintiffs on numerous other grounds, such that
any conclusions regarding presidential immunity were unnecessary to the resolution of the case,
see, e.g., McMeans v. Obama, No. 11-cv-891, 2011 WL 6046634, at *3 (D. Del. Dec. 1, 2011);
Newdow v. Bush, 355 F. Supp. 2d 265, 276–77 (2005).
14

In a footnote, Defendants argue that the Court lacks authority to grant declaratory relief
against the President, but the only authority they cite for this remarkable proposition is a
concurrence from Justice Scalia. Gov’t Br. at 10 n.4. Neither the Supreme Court nor the Second
Circuit has ever held that the President is immune from declaratory relief.
31

B.

Plaintiffs have standing to obtain relief against other Defendants.

The Court also has jurisdiction to provide injunctive and declaratory relief against the
President’s aides. Defendants do not argue that the President’s aides are entitled to immunity
here. They argue, instead, that the Court cannot issue equitable relief against these defendants
because Plaintiffs’ injuries are not traceable to their acts. Gov’t Br. at 7. This argument fails as a
matter of both fact and law.
The Supreme Court and lower courts have recognized that executive aides and other
subordinates may be ordered to redress injuries caused by the President’s actions, regardless of
whether those aides were personally responsible for those injuries. Even where the challenged
action was within the President’s sole discretion—or “where the President personally denoted an
Executive action or omission as his own”—the courts have directed injunctive relief toward
lower executive officials as a “matter of comity,” “even though the effect of the process is to
restrain or compel the President.” Nixon v. Sirica, 487 F.2d at 709; see Franklin v.
Massachusetts, 505 U.S. 788, 803 (1992) (plurality opinion) (concluding that declaratory relief
against the Secretary of Commerce would likely redress the apportionment injury caused by an
action within the President’s sole responsibility); Youngstown, 343 U.S. at 582, 589 (affirming
injunction against Secretary of Commerce from carrying out executive order); Swan v. Clinton,
100 F.3d 973, 979 (D.C. Cir. 1996) (concluding that “injunctive relief against [subordinate]
officials alone could provide Swan with an adequate remedy, despite the fact that only the
President has the power to officially. . . reinstate Swan”). Accordingly, the Court has jurisdiction
to issue injunctive relief against President Trump’s aides whether or not they personally blocked
the Individual Plaintiffs from the @realDonaldTrump account. Cf. Kentucky v. Graham, 473
U.S. 159, 165–66 (1985) (“Official-capacity suits . . . ‘generally represent only another way of

32

pleading an action against an entity of which an officer is an agent’” and therefore are, “in all
respects other than name, to be treated as a suit against the entity.” (citation omitted));
D’Alessandro v. City of New York, No. 17-594-cv, 2017 WL 4641256, at *5 (2d Cir. Oct. 17,
2017) (same).
In any event, Defendant Scavino, at least, is personally involved in the conduct that
results in Plaintiffs’ continuing injuries. He “assists President Trump in operating the
@realDonaldTrump account, including by drafting and posting tweets to the account.” Stip. ¶ 39;
see also id. ¶ 12. He has the access and ability to block and unblock users from the account. Id.
¶ 12. Whatever role Mr. Scavino played in the initial blocking of the Individual Plaintiffs, the
joint stipulation makes clear that he has the power to unblock them, and that by failing to
unblock them he is contributing to their ongoing injuries. The joint stipulation makes clear, in
other words, that Plaintiffs’ injuries are fairly traceable to Mr. Scavino’s actions. See Carter v.
HealthPort Techs., LLC, 822 F.3d 47, 55 (2d Cir. 2016) (the requirement that Plaintiffs’ injuries
be “fairly traceable” to the challenged actions of Defendants “does not create an onerous
standard”).
CONCLUSION
For the foregoing reasons, Plaintiffs are entitled to summary judgment on all of their
claims.
November 3, 2017

Respectfully submitted,

Jessica Ring Amunson (pro hac vice)
Tassity S. Johnson (pro hac vice)
Jenner & Block LLP
1099 New York Avenue, NW,
Suite 900
Washington, DC 20001

/s/ Jameel Jaffer
Jameel Jaffer (JJ-4653)
Katherine Fallow (KF-2535)
Carrie DeCell (application for admission
forthcoming)
Alex Abdo (AA-0527)
Knight First Amendment Institute at Columbia
University

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314 Low Library
535 West 116th Street
New York, NY 10027
[phone]
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