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

Filing 44

LETTER addressed to Judge Naomi Reice Buchwald from Jameel Jaffer dated November 3, 2017 re: Cross-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)

November 3, 2017
Via ECF and Fax
Honorable Naomi Reice Buchwald
United States District Court for the
Southern District of New York
500 Pearl Street, Room 2270
New York, NY 10007-1312
Re:

Knight First Amendment Institute, et al. v. Trump,
et al., Case No. 17-CV-5205 (NRB)

Dear Judge Buchwald,
We represent Plaintiffs Knight First Amendment Institute at
Columbia University (“Knight Institute”), Rebecca Buckwalter, Philip
Cohen, Holly Figueroa, Eugene Gu, Brandon Neely, Joseph Papp, and
Nicholas Pappas (“Individual Plaintiffs”) in the above-referenced matter.
In accordance with Section 2.E of the Court’s Individual Practices,
Plaintiffs respectfully submit this letter outlining the substantive
arguments in their cross-motion for summary judgment and opposition to
Defendants’ motion for summary judgment, as set forth in the
memorandum of law filed today.
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. This practice is
unconstitutional.
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

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

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 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.
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

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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, 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.
For these reasons, Plaintiffs respectfully request that the Court
enter judgment in favor of Plaintiffs and order appropriate relief. Plaintiffs
request oral argument on the parties’ cross-motions for summary
judgment.

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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
314 Low Library
535 West 116th Street
New York, NY 10027
[phone]
[e-mail]
Counsel for Plaintiffs

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