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

Filing 54

MEMORANDUM OF LAW in Opposition re: #42 CROSS MOTION for Summary Judgment . Defendants' Memorandum of Law in Opposition to Plaintiffs' Cross-Motion for Summary Judgment and Reply Memorandum in Further Support of Defendants' Motion for Summary Judgment. Document filed by Daniel Scavino, Sean M Spicer, Donald J. Trump. (Baer, Michael)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK

KNIGHT FIRST AMENDMENT INSTITUTE
AT COLUMBIA UNIVERSITY, et al.,
Plaintiffs,
No. 17-cv-5205 (NRB)
v.
DONALD J. TRUMP, President of the United
States, et al.,
Defendants.

DEFENDANTS’ MEMORANDUM OF LAW IN OPPOSITION TO
PLAINTIFFS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND
REPLY MEMORANDUM IN FURTHER SUPPORT OF DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT

Table of Contents
INTRODUCTION .......................................................................................................................... 1
ARGUMENT .................................................................................................................................. 2
I.

This Court Lacks Jurisdiction To Grant The Extraordinary Relief Plaintiffs Seek. ............ 2
A.

Plaintiffs’ Alleged Injuries Are Not Redressable Because Injunctive Relief Against
The President Is Unavailable. .................................................................................... 2

B.

Plaintiffs Have Not Established Standing To Sue The President’s Aides. ................ 6

II. The President’s Decision to Block Users From His Personal Twitter Account Is Not
Subject To The First Amendment. ...................................................................................... 8
III. The Individual Plaintiffs Do Not Have A First Amendment Right To Interact With Or
“Follow” The @realDonaldTrump Account On Twitter. ................................................. 12
A.

The President May Choose Whether To Interact With The Individual Plaintiffs On
Twitter, And That Decision Is Not Subject To Forum Analysis. ............................ 13
i.

The President’s Decisions About Whom To Interact With Are Part And Parcel
Of His Speech And Not Restricted By The First Amendment. ...................... 13

ii.

The @realDonaldTrump Account Is A Channel For The President’s Speech,
Not A “Forum” For The Speech Of Private Parties. ....................................... 19

B.

The Government Has Not Denied The Individual Plaintiffs Access To Government
Information. ............................................................................................................. 23

C.

The Individual Plaintiffs Have No Free-Standing Right To Petition The
Government Through The President’s Personal Twitter Account. .......................... 24

CONCLUSION ............................................................................................................................. 25

i

Table of Authorities
Cases
Agency for Int’l Dev. v. All. for Open Soc’y Int’l,
133 S. Ct. 2321 (2013) .............................................................................................................. 23
Allen v. Wright,
468 U.S. 737 (1984) .................................................................................................................... 5
Ark. Educ. Television Comm’n v. Forbes,
523 U.S. 666 (1998) .................................................................................................................. 19
Baker v. Carr,
369 U.S. 186 (1962) .................................................................................................................... 3
Baumgartner v. United States,
322 U.S. 665 (1944) .................................................................................................................. 17
Borough of Duryea v. Guarnieri,
564 U.S. 379 (2011) .................................................................................................................. 25
Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n,
531 U.S. 288 (2001) .................................................................................................................... 9
Burns v. City of Utica,
590 F. App’x 44 (2d Cir. 2014) ................................................................................................ 10
Claudio v. Sawyer,
675 F. Supp. 2d 403 (S.D.N.Y. 2009)....................................................................................... 10
Clinton v. Jones,
520 U.S. 681 (1997) ............................................................................................................ 3, 4, 5
Colombo v. O’Connell,
310 F.3d 115 (2d Cir. 2002)...................................................................................................... 11
Committee to Establish the Gold Standard v. United States,
392 F. Supp. 504 (S.D.N.Y. 1975) ............................................................................................. 6
Cornelius v. NAACP Legal Def. & Educ. Fund, Inc.,
473 U.S. 788 (1985) ...................................................................................................... 14, 20, 21
DaimlerChrysler Corp. v. Cuno,
547 U.S. 332 (2006) .................................................................................................................... 7
Davison v. Loudoun Cty. Bd. of Supervisors,
No. 16-cv-932, 2017 WL 3158389 (E.D. Va. July 25, 2017) ............................................... 9, 21
ii

Delta Const. Co. v. EPA,
783 F.3d 1291 (D.C. Cir. 2015) .................................................................................................. 8
Doe v. Cuomo,
755 F.3d 105 (2d Cir. 2014)........................................................................................................ 8
Franklin v. Massachusetts,
505 U.S. 788 (1992) ........................................................................................................ 3, 4, 6, 7
FW/PBS, Inc. v. City of Dallas,
492 U.S. 215 (1990) .................................................................................................................... 2
Gaines v. Thompson,
74 U.S. (7 Wall.) 347 (1868) ...................................................................................................... 3
Halperin v. Kissinger,
606 F.2d 1192 (D.C. Cir. 1979) .................................................................................................. 4
Hein v. Freedom from Religion Found., Inc.,
551 U.S. 587 (2007) .................................................................................................................... 5
Hudgens v. NLRB,
424 U.S. 507 (1976) .................................................................................................................. 20
Jackson v. Metro. Edison Co.,
419 U.S. 345 (1974) .................................................................................................................... 9
Kern v. City of Rochester,
93 F.3d 38 (2d Cir. 1996).......................................................................................................... 11
L.A. Police Dep’t v. United Reporting Publ’g Corp.,
528 U.S. 32 (1999) .................................................................................................................... 23
Lujan v. Defs. of Wildlife,
504 U.S. 555 (1992) .................................................................................................................... 7
Mahon v. Ticor Title Ins. Co.,
683 F.3d 59 (2d Cir. 2012).......................................................................................................... 7
Make the Rd. by Walking, Inc. v. Turner,
378 F.3d 133 (2d Cir. 2004)...................................................................................................... 21
Marbury v. Madison,
5 U.S. (1 Cranch) 137 (1803)...................................................................................................... 2
Matal v. Tam,
137 S. Ct. 1744 (2017) .............................................................................................................. 23

iii

McDonald v. Smith,
472 U.S. 479 (1985) .................................................................................................................. 24
Minn. State Bd. for Cmty. Colleges v. Knight,
465 U.S. 271 (1984) ........................................................................................................... passim
Mississippi v. Johnson,
71 U.S. (4 Wall.) 475 (1867) .......................................................................................... 2, 3, 4, 5
Monitor Patriot Co. v. Roy,
401 U.S. 265 (1971) .................................................................................................................. 17
Monsky v. Moraghan,
127 F.3d 243 (2d Cir. 1997)...................................................................................................... 10
New York Times Co. v. Sullivan,
376 U.S. 254 (1964) ............................................................................................................ 16, 17
Newdow v. Bush,
391 F. Supp. 2d 95 (D.D.C. 2005) .......................................................................................... 6, 8
Newdow v. Roberts,
603 F.3d 1002 (D.C. Cir. 2010) .................................................................................................. 6
Nixon v. Fitzgerald,
457 U.S. 731 (1982) .................................................................................................................... 3
O’Bradovich v. Vill. of Tuckahoe,
325 F. Supp. 2d 413 (S.D.N.Y. 2004)....................................................................................... 11
Packingham v. North Carolina,
137 S. Ct. 1730 (2017) .................................................................................................. 16, 19, 24
People for the Ethical Treatment of Animals v. Gittens,
414 F.3d 23 (D.C. Cir. 2005) .................................................................................................... 15
Perry Educ. Ass’n v. Perry Local Educators’ Ass’n,
460 U.S. 37 (1983) .............................................................................................................. 14, 21
Pitchell v. Callan,
13 F.3d 545 (2d Cir. 1994).......................................................................................................... 9
Plaut v. Spendthrift Farm, Inc.,
514 U.S. 211 (1995) .................................................................................................................... 2
Rodriguez v. Winski,
973 F. Supp. 2d 411 (S.D.N.Y. 2013)....................................................................................... 14

iv

Rosenberger v. Rector and Visitors of the University of Virginia,
515 U.S. 819 (1995) ............................................................................................................ 21, 22
Sample v. Bureau of Prisons,
466 F.3d 1086 (D.C. Cir. 2006) ................................................................................................ 24
Se. Promotions, Ltd. v. Conrad,
420 U.S. 546 (1975) .................................................................................................................. 16
Schlesinger v. Reservists Comm. to Stop the War,
418 U.S. 208 (1974) .................................................................................................................... 5
Smith v. Ark. State Highway Emp., Local 1315,
441 U.S. 463 (1979) .................................................................................................................. 15
Sorrell v. IMS Health Inc.,
564 U.S. 552 (2011) .................................................................................................................. 23
Spargo v. N.Y. State Comm’n on Judicial Conduct,
351 F.3d 65 (2d Cir. 2003)........................................................................................................ 25
Student Gov’t Ass’n v. Bd. of Trustees of Univ. of Mass.,
868 F.2d 473 (1st Cir. 1989) ..................................................................................................... 15
Sutliffe v. Epping Sch. Dist.,
584 F.3d 314 (1st Cir. 2009) ..................................................................................................... 22
Swan v. Clinton,
100 F.3d 973 (D.C. Cir. 1996) ................................................................................................ 6, 7
United States v. Am. Library Ass’n,
539 U.S. 194 (2003) ............................................................................................................ 14, 20
United States v. Burr,
25 F. Cas. 187 (C.C.D. Va. 1807) ............................................................................................... 4
United States v. Classic,
313 U.S. 299 (1941) ................................................................................................................ 8, 9
United States v. Nixon,
418 U.S. 693 (1974) .................................................................................................................... 4
Van Orden v. Perry,
545 U.S. 677 (2005) .................................................................................................................... 9
W. Farms Assocs. v. State Traffic Comm’n of State of Conn.,
951 F.2d 469 (2d Cir. 1991)...................................................................................................... 20

v

Walker v. Texas Div., Sons of Confederate Veterans, Inc.,
135 S. Ct. 2239 (2015) .................................................................................................. 13, 14, 20
West v. Atkins,
487 U.S. 42 (1988) .................................................................................................................. 8, 9
Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952) ................................................................................................................ 4, 7
Zherka v. DiFiore,
412 F. App’x 345 (2d Cir. 2011) .............................................................................................. 11
Statutes
42 U.S.C. § 1983 ............................................................................................................................. 9
Other Authorities
13A Wright & Miller, Federal Practice & Procedure § 3531.5 (3d ed.)..........................................7
Barack Obama, Twitter, https://twitter.com/barackobama............................................................11
Jessica Roy, On last day of work, Twitter employee deactivates President Trump’s account,
L.A. Times (Nov. 2, 2017), http://fw.to/ON9b3Ik.....................................................................22
President Obama, Twitter, https://twitter.com/potus44.................................................................11
Terms of Service, Twitter, https://twitter.com/en/tos....................................................................22
Twitter, “About replies and mentions,” https://support.twitter.com/articles/14023......................17
Twitter, “Blocking accounts on Twitter,” https://support.twitter.com/articles/117063...........14, 16
Twitter, “Getting started with Twitter,” https://support.twitter.com/articles/215585...................16
Twitter, “Muting Accounts on Twitter,” https://support.twitter.com/articles/20171399..............14
U.S. Const. amend I.......................................................................................................................24

vi

INTRODUCTION
Plaintiffs’ conception of the First Amendment’s reach is extraordinary, transforming it
from a bulwark against unlawful government regulation of speech into a tool for supervising the
President’s personal Twitter account—an account he created eight years before assuming office.
To make that result more palatable, Plaintiffs paint in broad strokes: they label every decision the
President makes about his account state action and recast every interaction (or potential
interaction) a public official has with a constituent as a “forum,” subjecting basic decisions about
whether to begin or end a conversation—on social media or otherwise—to judicial scrutiny.
This Court should reject Plaintiffs’ undifferentiated application of the First Amendment.
Plaintiffs do not challenge any official act or statement the President has made on his Twitter
account, but rather the President’s choice to use a standard Twitter feature that enables him to
customize his personal interaction with other users. That choice is not state action. Even if it
were, the President’s participation in Twitter’s privately controlled marketplace of ideas does not
create a public forum, and his decisions about whom to engage with on that platform do not directly
regulate the speech of other users. Instead, and as Plaintiffs concede, the President’s decision to
block other Twitter users prevents only their direct interaction with him, while leaving Plaintiffs
free to continue voicing their criticism and political views on the site.
The novelty of Plaintiffs’ alleged First Amendment injury mirrors the unprecedented nature
of the relief they seek to redress it. Plaintiffs cite no case in which a court has enjoined the
President’s discretionary exercise of executive power. Yet after treating the President’s actions at
issue here as precisely that, Plaintiffs ask this Court ask to take the extraordinary step of overseeing
the President’s daily operation of his personal Twitter account. The Court should, and in fact must,
decline this invitation.

1

ARGUMENT
I.

This Court Lacks Jurisdiction To Grant The Extraordinary Relief Plaintiffs Seek.
Plaintiffs fail to meet their summary-judgment burden to establish standing to bring their

claims.1 The evidence establishes neither that the Knight Institute has a cognizable injury,2 nor
that the Individual Plaintiffs’ alleged injuries are traceable to anyone other than the President. And
Plaintiffs’ citation to certain exceptional circumstances in which courts exercised jurisdiction over
lawsuits involving the President fails to establish the availability of such relief in this case.
A. Plaintiffs’ Alleged Injuries Are Not Redressable Because Injunctive Relief
Against The President Is Unavailable.
Even assuming the President’s choices about whom to interact with on Twitter constitute
state action (which, as discussed below, they do not), Plaintiffs have failed to demonstrate that the
relief they seek is available. In an effort to root their novel lawsuit in established precedent,
Plaintiffs attempt to reframe this case as presenting a question of the Court’s 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, 5 U.S. (1 Cranch) 137, 26 (1803)). But that axiomatic
statement presumes a justiciable case or controversy, and Plaintiffs have not established that one
of the elements of a justiciable case—redressability—is available.

For convenience, this memorandum uses the following abbreviations: Stipulation (“Stip.”), ECF No. 30-1; Mem. in
Supp. of Mot. for Summ. J. (“Defs.’ Br.”), ECF No. 35; Pls.’ Cross-Mot. for Summ. J. and Opp’n to Defs.’ Mot. for
Summ. J (“Pls.’ Br.”), ECF No. 43; Br. of Amici Curiae First Am. Legal Scholars in Supp. of Pls.’ Mot. for Summ. J.
(“FALS Br.”), ECF No. 47; Br. of Amicus Curiae Elec. Frontier Found. in Supp. of Pls.’ Mot. for Summ. J. (“EFF
Br.”), ECF No. 49; Br. for Fed. Courts Scholars as Amici Curiae Supporting Pls. (“Fed. Cts. Br.”), ECF No. 51.
1

In a footnote, Plaintiffs make a conclusory assertion of the Knight Institute’s standing, Pls.’ Br. 22 n.9, which rests
on a speculative chain of inferences. Defs.’ Br. 6. Plaintiffs note that one link in that chain—that a Knight Institute
staffer actually reads @realDonaldTrump comment threads—can be “inferred from the fact that the Knight Institute
follows @realDonaldTrump.” Pls.’ Br. 22 n.9 (citing Stip. ¶ 1). But standing must appear affirmatively in the record,
FW/PBS, Inc. v. City of Dallas, 492 U.S. 215, 231 (1990), and in any event, Plaintiffs offer no evidence of the other
necessary links in the chain of inferences. See also Defs.’ Br. 6 (Knight Institute’s injury is a generalized grievance).
2

2

The Supreme Court spoke clearly in Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1867),
when it explained that courts have “no jurisdiction of a bill to enjoin the President in the
performance of his official duties,” id. at 501, and that “general principles . . . forbid judicial
interference with the exercise of Executive discretion,” id. at 499. Five Justices of the Supreme
Court revisited and agreed on this point in Franklin v. Massachusetts, 505 U.S. 788 (1992), without
any dissent on the issue. Id. at 802-03 (plurality); id. at 826 (Scalia, J., concurring); see also id. at
807-23 (Stevens, J., concurring). These cases counsel that the constitutional separation of powers
precludes this Court from assuming control over the President’s discretionary official conduct in
the form of an equitable injunction.
Plaintiffs argue that the government misreads the Court’s statements of separation-ofpowers principles, see Pls.’ Br. 30; see also Fed. Cts. Br. 3-8, but regardless of the factual context
in which Mississippi arose or the precedential effect of Franklin, these principles have been
restated and relied on for more than a century. See, e.g., Clinton v. Jones, 520 U.S. 681, 719 (1997)
(Breyer, J., concurring) (discussing Justice Scalia’s concurrence in Franklin without
disagreement); Nixon v. Fitzgerald, 457 U.S. 731, 753 n.34 (1982) (citing Mississippi, 71 U.S. at
501 for the proposition that courts “have recognized the President’s constitutional responsibilities
and status as factors counseling judicial deference and restraint”); Baker v. Carr, 369 U.S. 186,
225 n.52 (1962) (describing the holding of Mississippi); Gaines v. Thompson, 74 U.S. (7 Wall.)
347 (1868) (same); see also Defs.’ Br. 9.
Plaintiffs make no argument that the President’s decision to block users is anything other
than a discretionary exercise of his executive powers. Cf. Pls.’ Br. 31 (stating that the challenged
actions are “untethered from any constitutional or statutory duty”). They do not suggest, for
example, that the President has a ministerial obligation to unblock users on Twitter. See Franklin,

3

505 U.S. at 802 (plurality) (noting that Mississippi left open “the question whether the President
might be subject to a judicial injunction requiring the performance of a purely ‘ministerial’ duty’”
(quoting Mississippi, 71 U.S. at 498-99)). And Plaintiffs do not cite any case where a court has
done what Plaintiffs ask this Court to do: exercise equitable authority to exert direct control over
the President’s day-to-day, discretionary conduct as the head of the Executive Branch. Indeed, the
Supreme Court has described such relief as “without a precedent,” Mississippi, 71 U.S. at 500, in
an “apparently unbroken historical tradition,” Franklin, 505 U.S. at 827 (Scalia, J., concurring).
Instead, Plaintiffs rely on two lines of inapposite cases. First, Plaintiffs observe that official
presidential conduct may be subject to judicial review in appropriate cases through actions directed
at the President’s subordinates. E.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 58788 (1952). That unremarkable statement is entirely consistent with—and in fact supports—the
notion that injunctive relief directed at the President himself is precluded. Second, Plaintiffs cite
to cases where courts have held that the President is amenable to judicial process in certain limited
circumstances. Pls.’ Br. 29; see also Fed. Cts. Br. 12-13. But these cases addressed either damages
actions for unofficial conduct, Jones, 520 U.S. at 692-95, or a subpoena duces tecum issued in a
criminal proceeding, United States v. Nixon, 418 U.S. 693, 714-16 (1974); United States v. Burr,
25 F. Cas. 187, 191, 196 (C.C.D. Va. 1807) (No. 14,694). Neither line of cases addresses an
equitable grant of injunctive relief directed at the President’s executive discretion. Indeed, the
Court in both Mississippi and Franklin expressly distinguished the subpoena line of cases upon
which Plaintiffs so heavily rely. See, e.g., Franklin, 505 U.S. at 802-03 (plurality); Mississippi,
71 U.S. at 479 (describing plaintiff’s reliance on Burr).3

3

Amici Federal Courts Scholars argue that Youngstown and similar cases support the exercise of jurisdiction to impose
equitable restraints on the President’s personal exercise of the executive power. Fed. Cts. Br. 8-11. Amici root this
argument in the contention that the Supreme Court has created an irrational “legal fiction.” Id. at 9 (describing the

4

In contrast to this inapposite legal authority, the injunction that Plaintiffs seek here is of a
very different kind. Plaintiffs request that the Court supervise the President’s personal operation
of his social media account, including his selection of individuals to interact with on that account,
in the absence of any ministerial obligation imposed by law. The Court authorized judicial process
directed at the President in Jones, Nixon, and Burr only in narrow and unusual circumstances
unrelated to the President’s exercise of executive discretion. Nowhere in any of these cases did
the Court contemplate an Article III judge assuming the power to instruct the Chief Executive on
how to perform his official duties on a day-to-day basis—an issue at the core of the Mississippi
line of cases. See, e.g., Jones, 520 U.S. at 701 (“Whatever the outcome of this case, there is no
possibility that the decision will curtail the scope of the official powers of the Executive Branch.”).
In effect, Plaintiffs seek to “deputize federal courts as ‘virtually continuing monitors of the wisdom
and soundness of Executive action’” by wielding injunctions to police the President’s personal
decisions, which, “most emphatically, ‘is not the role of the judiciary.’” Hein v. Freedom from
Religion Found., Inc., 551 U.S. 587, 612 (2007) (quoting Allen v. Wright, 468 U.S. 737, 760
(1984)); see also Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 222 (1974)
(counseling that “distort[ing] the role of the Judiciary in its relationship to the Executive . . . [could]
open the Judiciary to an arguable charge of providing ‘government by injunction’”).
That outcome, as the Mississippi line of cases has recognized, is not countenanced by the
separation of powers. See 71 U.S. at 500; see also Defs.’ Br. 9. Plaintiffs suggest that this line of

reasoning of Mississippi as “unpersuasive”); id. at 10 (suggesting “there is no ‘rational basis’” for treating subordinates
differently (quoting Halperin v. Kissinger, 606 F.2d 1192, 1211-12 (D.C. Cir. 1979))). But amici’s academic
disagreement with the reasoning or import of precedent is no basis for this Court to depart from it. Remarkably, amici
go so far as to suggest that there is nothing left to Mississippi after Nixon. Id. at 12-13 (“Since Nixon, lower courts
have considered suits seeking equitable relief against Presidents on the merits, rather than dismissing them on the
‘general principle’ that the President cannot be enjoined[.]”). But that extreme reading of Nixon cannot be reconciled
with a careful consideration of the Court’s decision, the Franklin plurality’s distinguishing of the subpoena cases, or
the practice of federal courts since Nixon was decided in 1974. See Defs.’ Br. 9 (citing cases).

5

precedent should be given little weight because in each instance the court could have enjoined a
subordinate official or ruled against plaintiffs on another ground. Pls.’ Br. 31 n.13. Not so. For
example, in this Court’s decision in Committee to Establish the Gold Standard v. United States,
392 F. Supp. 504 (S.D.N.Y. 1975), the Court dismissed the President as a defendant solely on the
basis of Mississippi. Id. at 506 (“The President of the United States is not amenable to suit in his
official capacity where an injunction is sought that would affect the performance of the nonministerial duties of his office.”). And in any event, the availability of an alternative basis for
decision does little to diminish the persuasive force of these courts’ reasoning. See, e.g., Newdow
v. Bush, 391 F. Supp. 2d 95, 106 (D.D.C. 2005) (determining that there was no “viable alternative
to enjoining the President” because “only an injunction or declaratory judgment against the
President [could] redress plaintiff’s injury,” and holding that the court was “without the authority
to grant such relief,” despite also concluding that the case was moot). This Court should not depart
from the weight of authority to enjoin the President’s discretionary executive conduct. 4
B. Plaintiffs Have Not Established Standing To Sue The President’s Aides.
Plaintiffs acknowledge that the President, not his aides, blocked the Individual Plaintiffs,
Pls.’ Br. 11 (describing “the President’s blocking”); Stip. ¶¶ 46-52, but contend that presidential
aides nonetheless “may be ordered to redress injuries caused by the President’s actions, regardless

4

Plaintiffs offer no explanation why declaratory relief is different than injunctive relief in this regard, Pls.’ Br. 31
n.14, and it is not. Courts have treated declaratory relief substantially the same when considering these questions.
Swan v. Clinton, 100 F.3d 973, 977 (D.C. Cir. 1996) (“[S]imilar considerations regarding a court’s power to issue
relief against the President himself apply to [a plaintiff’s] request for a declaratory judgment”); Newdow, 391 F. Supp.
2d at 105 (“[T]he reasoning is equally applicable to declaratory judgments.”). As Justice Scalia wrote in Franklin,
the issuance of a “declaratory judgment against the President” is “incompatible with his constitutional position.” 505
U.S. at 827 (Scalia, J., concurring). “Many of the reasons” that the Supreme Court acknowledged in recognizing
absolute immunity from damages liability “apply with equal, if not greater, force to requests for declaratory or
injunctive relief in official-capacity suits that challenge the President’s performance of executive functions.” Id.
Declaratory relief would prove equally distracting and “produce needless head-on confrontations between district
judges and the Chief Executive.” Id. at 827-28. Just as Plaintiffs lack authority or precedent for the injunctive relief
they seek, courts “have never submitted the President to declaratory relief” in the manner that Plaintiffs request.
Newdow v. Roberts, 603 F.3d 1002, 1013 (D.C. Cir. 2010).

6

whether those aides were personally responsible for those injuries.” Pls.’ Br. 32. Plaintiffs’
“proposed interpretation of Article III—that it permits suits against non-injurious defendants as
long as one of the defendants in the suit injured the plaintiff—is unprecedented.” Mahon v. Ticor
Title Ins. Co., 683 F.3d 59, 62-63 (2d Cir. 2012). Subordinates may be ordered to provide redress
in certain suits challenging presidential action, e.g., Youngstown, 343 U.S. at 587-88, but Plaintiffs
still must establish standing to sue each subordinate. DaimlerChrysler Corp. v. Cuno, 547 U.S.
332, 352 (2006) (“[O]ur standing cases confirm that a plaintiff must demonstrate standing for each
claim he seeks to press.”). Whether a subordinate is carrying out a presidential directive, e.g.,
Swan v. Clinton, 100 F.3d 973, 979 (D.C. Cir. 1996), or separately injures the plaintiffs, e.g.,
Franklin, 505 U.S. at 803 (plurality), a proper subordinate defendant must be part of the action
that caused the injury providing the jurisdictional basis for a lawsuit.
Plaintiffs would have this Court ignore fundamental principles and simply assume
standing: if Mr. Scavino could provide relief, they argue, he should be ordered to do so.5 Tellingly,
Plaintiffs cite no authority for this proposition. Cf. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560
(1992) (describing the “irreducible constitutional minimum” of standing). The Court must
exercise jurisdiction to order relief, and standing is necessary to the Court’s jurisdiction. Plaintiffs’
suggestion that Mr. Scavino “is contributing to their ongoing injuries” by “failing to unblock
them,” Pls.’ Br. 33, is simply a repackaging of the argument that traceability is not required. To
the extent Plaintiffs contend that Mr. Scavino was “obliged to prevent an injury,” that argument
“is as good as the duty to prevent the harm” and “irrelevant” where there is no such duty. 13A
Wright & Miller, Federal Practice & Procedure § 3531.5 (3d ed.). Mr. Scavino has no affirmative
“duty to unblock” imposed by law.

5

Ms. Hicks and Ms. Sanders do not have access to the account, Stip. ¶¶ 10-11, and Plaintiffs make no argument that
they could provide relief. Summary judgment should be granted to these defendants on that basis alone.

7

In any event, an order of relief directed at Mr. Scavino alone would not provide redress
because an ongoing injury is not redressable where there is an independent cause. See, e.g., Delta
Const. Co. v. EPA, 783 F.3d 1291, 1295-97 (D.C. Cir. 2015) (holding that plaintiffs lacked
standing to challenge an EPA rule absent challenge to a coordinated and identical NHTSA rule);
Doe v. Cuomo, 755 F.3d 105, 114 & n.5 (2d Cir. 2014) (finding no standing to challenge statute
where conduct was proscribed by unchallenged laws). Any order effecting redress ultimately must
include the President, who blocked the Individual Plaintiffs and will retain the authority to block
users from the @realDonaldTrump account. See, e.g., Newdow, 391 F. Supp. at 106 (concluding
that only the President could provide relief). And as discussed above, the relief Plaintiffs seek
from the President is not available.
II.

The President’s Decision to Block Users From His Personal Twitter Account Is
Not Subject To The First Amendment.
Plaintiffs cannot establish that the President’s decisions about whom to interact with on

Twitter are subject to the First Amendment. To bring their claim, Plaintiffs must establish that the
President “exercised power ‘possessed by virtue of [federal] law and made possible only because
[he was] clothed with the authority of [federal] law.” West v. Atkins, 487 U.S. 42, 49 (1988)
(quoting United States v. Classic, 313 U.S. 299, 326 (1941)). But Plaintiffs offer no explanation
why or how federal law could be considered the source of the President’s authority to block users
from his personal Twitter account. Indeed, Plaintiffs argue that the President’s actions are
“untethered from any constitutional or statutory duty,” such that “[e]njoining the President . . .
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.” Pls.’ Br. 29, 31.
Nonetheless, Plaintiffs ask the Court to consider the President’s personal Twitter account
a “tool of governance” and treat any use of the account as state action. Pls.’ Br. 12-15. Plaintiffs
8

derive this proposed test from a recent case addressing a municipal official’s Facebook page.
Davison v. Loudoun Cty. Bd. of Supervisors, No. 16-cv-932, 2017 WL 3158389 (E.D. Va. July 25,
2017), appeal docketed sub nom. Davison v. Randall (4th Cir. Aug. 29, 2017) (No. 17-2002).
Plaintiffs’ reliance on that case, which is both distinguishable on its facts and of limited
instructional value here,6 conflicts with Plaintiffs’ own exhortation that the Court should “look to
the nature of the officer’s act.” Pls.’ Br. 16 (quoting Pitchell v. Callan, 13 F.3d 545, 548 (2d Cir.
1994)) (emphasis added). Rather than addressing the specific act at issue, Plaintiffs focus on the
medium used as part of that act—a view that “mistakes the part for the whole.” Pls.’ Br. 2.
It cannot be the case that any personal medium of communication created or maintained
by public officials in their personal capacity is subject to an all-or-nothing state action analysis
when that person later becomes an officer of the state. There can be no dispute that the President
established the @realDonaldTrump account as a private citizen and continues to use the account
for personal and political uses, distinct from any governmental acts that Plaintiffs ascribe to it.
Pls.’ Br. 12-13 n.4; Defs.’ Br 13 n.7; Stip. Ex. A, ECF 30-1. A person may engage in private
actions in an official setting and use the “tools of governance” for private purposes. Cf. Van Orden
v. Perry, 545 U.S. 677, 723 (2005) (Stevens, J., dissenting) (“[W]hen public officials deliver public

6

Davison did not deal with a longstanding personal account retained after an official assumes office but rather an
account established with the purpose of governance in mind. 2017 WL 3158389 at *7 (“The impetus for Defendant’s
creation of the ‘Chair Phyllis J. Randall’ Facebook page was, self-evidently, Defendant’s election to public office.”).
And in any event, Davison grounds its analysis in a line of state-action cases addressing whether a private actor is
sufficiently imbued with state power such that its conduct may be considered state action. See, e.g., Brentwood Acad.
v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295-96 (2001) (assessing whether a private interscholastic
athletic association engaged in state action). These cases ask whether “there is such a ‘close nexus between the State
and the challenged action’ that the seemingly private behavior ‘may be fairly treated as that of the State itself.’” Id.
(quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974)). This inquiry is a poor fit for cases where courts
must assess whether a public official acted in a private capacity; a public official’s conduct seemingly would always
have a nexus with the state based on the simple fact that the defendant is an officer of the state. The more appropriate
question is whether the official “exercised power ‘possessed by virtue of [federal] law’” when engaging in the
challenged conduct, as this test—typically applied in analogous 42 U.S.C. § 1983 cases to determine whether an
official has acted under color of law or in his personal capacity—focuses on the question whether the official uses
state power conferred on him by his position. West, 487 U.S. at 49 (quoting Classic, 313 U.S. at 326)).

9

speeches, we recognize that their words are not exclusively a transmission from the government
because those oratories have embedded within them the inherently personal views of the
speaker[.]”); Burns v. City of Utica, 590 F. App’x 44, 50 (2d Cir. 2014) (concluding that on-duty
firefighter acted in private capacity); Claudio v. Sawyer, 675 F. Supp. 2d 403, 409-10 (S.D.N.Y.
2009), aff’d, 409 F. App’x 464 (2d Cir. 2011) (concluding that police officer’s use of service
weapon is not sufficient to establish state action). To conclude otherwise would place form over
function, rendering any action conducted with a tool used for both personal and public uses—for
example, the President’s phone—the action of the state.
The challenged action at issue here is the President’s decision to block users from his
personal Twitter account. But Plaintiffs’ state-action analysis addresses blocking only in passing,
Pls.’ Br. 16, offering no explanation why the decision to block a Twitter user from a personal
account is an exercise of the executive power that the President possesses by virtue of federal law.
As Defendants have explained, Defs.’ Br. 13, the President availed himself of one of several tools
that Twitter provides to allow users to structure their own interactions on the platform, and did so
on the same terms as any other user. That the Press Secretary stated that the President’s tweets
may be considered “official statements” or that the National Archives and Records Administration
has advised the White House to preserve the President’s tweets says nothing about the President’s
entirely separate decision to block users. See Pls.’ Br. 13-14 (citing, e.g., Stip. ¶¶ 37, 40).
Because “ordinary citizens” may (and do) take the same action on the same platform as the
President—blocking users on their personal Twitter accounts—this is not a case where an official
“was enabled to take the alleged actions only because of his [official] status.” Monsky v.
Moraghan, 127 F.3d 243, 246 (2d Cir. 1997). The President could take the same act before taking
office and after leaving office—assuming Twitter retains this feature in the same format, a decision

10

entirely beyond his control. And the record does not support the conclusion that the President’s
decision was made for any reason other than the President’s own personal desire not to interact
with the Plaintiffs’ accounts. Cf. Kern v. City of Rochester, 93 F.3d 38, 43 (2d Cir. 1996) (finding
no state action where city official acted “solely for the benefit of [his] union, not for the benefit of
the City”). In fact, one of the principal factors on which Plaintiffs rely in support of their state
action argument—the role that a handful of aides play in drafting tweets or suggesting content,
Pls.’ Br. 14—indisputably does not apply to the President’s decision to block users from his
personal account, including the Individual Plaintiffs. Stip. ¶¶ 36, 46-52.
Plaintiffs suggest that this decision could be viewed as state action because it was “based
on the Individual Plaintiffs’ response to the President’s tweets about official matters.” Pls.’ Br.
16. But the Second Circuit has made clear that such facts are not dispositive. In Colombo v.
O’Connell, 310 F.3d 115, 118 (2d Cir. 2002) (per curiam), for example, the plaintiff filed a petition
to recall a school official, alleging unlawful conduct, and the official hired a private lawyer to write
a letter threatening a libel suit in response. Id. at 116-18. The Second Circuit concluded that this
private response to criticism of official conduct was not state action because the official’s power
to threaten suit was not possessed by virtue of state law. Id. at 118; see also, e.g., Zherka v.
DiFiore, 412 F. App’x 345 (2d Cir. 2011) (per curiam); O’Bradovich v. Vill. of Tuckahoe, 325 F.
Supp. 2d 413 (S.D.N.Y. 2004).
Public officials, including this President and his predecessor, can be associated with both
official and personal Twitter accounts, which may convey similar or altogether different
information. Compare Barack Obama, Twitter, https://twitter.com/barackobama (last visited Nov.
17, 2017), with President Obama, Twitter, https://twitter.com/potus44 (last visited Nov. 17, 2017).
But Plaintiffs would have this Court conflate those accounts, no matter the context for their

11

creation or the facts surrounding their use, by adopting a sweeping rule that brings private conduct
within the scope of state action. The Court should reject this approach and hold that the President’s
decision to block users from his personal account is not an exercise of state power.
III.

The Individual Plaintiffs Do Not Have A First Amendment Right To Interact With
Or “Follow” The @realDonaldTrump Account On Twitter.
Plaintiffs’ sweeping First Amendment arguments are rooted in high-level propositions

about social media, rather than the specific factual context this case presents. Anyone with an
internet connection, including the Individual Plaintiffs, can view the @realDonaldTrump account,
read the tweets the President posts, and review what other Twitter users have to say in
response. Stip. ¶¶ 18, 36, 55. When an individual takes the additional step of signing up for a
Twitter account, he gains the ability to “interact with users” on the Twitter platform and participate
in the overlapping conversations the platform facilitates. Id. ¶¶ 18, 22-23. Of course, in the “real”
(non-digital) world, a conversation requires two willing participants. And everyone—even public
officials—sometimes decides to tune out, walk away from, or even refuse to begin conversations
with other individuals for any host of reasons. Perhaps in recognition of this fact, Twitter has
created the “block” feature to allow users to bow out of unwelcome conversations. Stip. ¶ 28. In
other words, when the blocked user is logged into the blocked Twitter account, he cannot message,
reply to, or visit the page of the blocking user. Id. But when he is logged out, the blocked user is
on the same footing as any other member of the general public. See id. ¶¶ 28, 54-55.
Plaintiffs’ position is that whenever the President uses the “block” feature, he violates the
First Amendment if he happens to disagree with the views of someone he decides not to engage
with—in other words, that the Constitution requires him or any other public official to continue
that interaction as an unwilling listener. That absolutist view of the First Amendment is not the
law.
12

A. The President May Choose Whether To Interact With The Individual
Plaintiffs On Twitter, And That Decision Is Not Subject To Forum Analysis.
The @realDonaldTrump account is a channel through which the President expresses his
views on a range of subjects and makes expressive choices about the information he consumes and
the individuals with whom he interacts. The account itself accordingly is not a “public forum” for
the speech of private individuals and is not subject to the restrictions that accompany such a
designation. Plaintiffs’ arguments to the contrary misapprehend the relevant First Amendment
principles and the manner in which those principles apply to the interactions that Twitter facilitates.
i. The President’s Decisions About Whom To Interact With Are Part And
Parcel Of His Speech And Not Restricted By The First Amendment.
Plaintiffs do not contest that the vast majority of the actions the President takes through his
Twitter account are his speech—that when he publishes a tweet, retweets the contents of another
account, or selects an image for his Twitter page, those actions are not restricted by the First
Amendment. See Defs.’ Br. 15. Plaintiffs agree that if those choices are considered actions of the
state, they are at most government speech. Id. at 14-15; see also Walker v. Texas Div., Sons of
Confederate Veterans, Inc., 135 S. Ct. 2239, 2250 (2015) (“First Amendment strictures that attend
the various types of government-established forums do not apply” to government speech.). The
only question, then, is whether the President’s choices about whom to interact with on Twitter are
subject to a different, more searching form of First Amendment scrutiny. In the non-digital world,
that question has an easy answer: No.
When an elected official is out in public, he is free to choose with whom he does, and does
not, speak. He can talk politics with a supporter in a park, and he can discuss policy with a critic
on a public street. But he can also do none of the above—he can decide not to take photos with
supporters, and therefore wave away anyone who expresses agreement with his views, and he can
refrain from engaging with constituents that he knows to be unpleasant critics, reasoning that there
13

are better uses of his time. Moreover, the official can repeat the same choices over time—he can
choose to always steer clear of an overly enthusiastic supporter, and he can make a practice of
ignoring an especially unpleasant critic that he knows he will never persuade.7
If someone ignored by a public official under these kinds of circumstances tried to bring a
lawsuit, he would lose. Even if a court were to conclude that the daily choices an elected official
makes about whom to interact with are state action, the First Amendment would not constrain
those choices. The Supreme Court has long held that “[a] person’s right to speak is not infringed
when government simply ignores that person while listening to others.” Minn. State Bd. for Cmty.
Colls. v. Knight, 465 U.S. 271, 288 (1984). Accordingly, these associational decisions “that take
the form of speech” would be subject to, at most, the rules for government speech, which do not
require viewpoint neutrality. Walker, 135 S. Ct. at 2245-46; United States v. Am. Library Ass’n,
539 U.S. 194, 205 (2003) (plurality opinion).
The setting in which a public official makes these kinds of associational decisions does not
alter the analysis. An official can wave off a trade association representative at a reception on
private property (which is not a First Amendment “forum,” see Rodriguez v. Winski, 973 F. Supp.
2d 411, 420 (S.D.N.Y. 2013)); he can decline to chat with an environmental advocate that he
encounters in a government building (a “nonpublic forum,” see Cornelius v. NAACP Legal Def. &
Educ. Fund, Inc., 473 U.S. 788, 805 (1985)); and he can ignore a protestor’s invitation to strike up
a conversation in a public park (a “traditional” public forum, see Perry Educ. Ass’n v. Perry Local
Educators’ Ass’n, 460 U.S. 37, 45 (1983)). The analysis does not differ across these settings

7

The manner in which a public official chooses not to engage with a constituent does not alter this analysis. An
official can tune out an unpleasant conversation, walk away in the middle of it, or avoid a conversation before it has
been begun.
The same is true on Twitter.
Compare Twitter, “Muting Accounts on Twitter,”
https://support.twitter.com/articles/20171399 (last visited Nov. 17, 2017), with Twitter, “Blocking accounts on
Twitter,” https://support.twitter.com/articles/117063 (last visited Nov. 17, 2017).

14

because in each the official is serving as a participant in, not a regulator of, the marketplace of
ideas.8 See Student Gov’t Ass’n v. Bd. of Trustees of Univ. of Mass., 868 F.2d 473, 477 (1st Cir.
1989) (distinguishing between “the government in its role as a regulator in the marketplace of
ideas” and the government’s role “as a player in the marketplace of ideas” (emphasis added)); see
also People for the Ethical Treatment of Animals v. Gittens, 414 F.3d 23, 28-31 (D.C. Cir. 2005).
Put differently, because the official is not actually denying anyone the chance to speak—
the protestor, for instance can continue protesting after the official has walked by—the First
Amendment does not impose viewpoint-based restrictions on the public official’s conduct. Instead
of curtailing speech, the public official who avoids a protester is simply declining to have that
speech directed at him, a decision that can itself be the subject of speech and criticism. See Knight,
465 U.S. at 300 (Stevens, J., dissenting) (“It is inherent in the republican form of government that
high officials may choose—in their own wisdom and at their own peril—to listen to some of their
constituents and not to others.”). To be sure, the decision not to engage with a particular individual
will disappoint whomever the public official chooses to ignore. Engaging directly with a public
official in a setting where others can witness the interaction is an opportunity to garner attention
and amplify one’s message. But the risk of losing out on that “[a]mplification . . . is inherent in
[the] government’s freedom to choose” with whom to speak. Id. at 288 (majority opinion).
Accordingly, whatever “impairment” results from these decisions “is not one the Constitution
prohibits.” Smith v. Ark. State Highway Emp., Local 1315, 441 U.S. 463, 466 (1979) (per curiam).
The First Amendment does not impose additional requirements on a public official’s
associational decisions when the official participates in a digital “space” controlled by a private

Plaintiffs’ conception of the relevant First Amendment principles likewise appears not to vary across settings, but
with the absurd result that even at private events (like conferences or fundraisers), a public official would not be free
to choose with whom he speaks. See Defs.’ Br. 20.
8

15

company, instead of a more familiar physical space like a park. That is particularly true in the
context of Twitter, which stands out among social media sites for mirroring the kinds of back-andforth conversations that take place in the non-digital world.9 As Plaintiffs concede, “the defining
feature of Twitter is its facilitation of real-time interaction.” Pls.’ Br. 18. Twitter’s website
highlights the fact that the platform makes such interactions possible on an unprecedented scale,
noting that users can “[j]oin or start any conversation in the world with a simple Tweet.” Twitter,
“Getting started with Twitter,” https://support.twitter.com/articles/215585 (last visited Nov. 17,
2017). And Twitter describes “blocking” as “a feature that helps you control how you interact
with other accounts on Twitter.”

Twitter, “Blocking accounts on Twitter,” https://support.

twitter.com/articles/117063 (last visited Nov. 17, 2017) (emphasis added); see also Stip. ¶ 28.
These characteristics reinforce that the Court should treat a public official’s decision not to interact
with someone on Twitter the same as it would treat that choice in a non-digital setting.
Accordingly, the President’s choices not to interact with the Individual Plaintiffs on Twitter should
be considered, at most, government speech.
Plaintiffs would regulate these choices through a rule of astounding reach: a blanket First
Amendment prohibition on public officials choosing to ignore (“not to hear from”) certain critics.
See Pls.’ Br. 21. That position is untenable. As an initial matter, the only authorities Plaintiffs cite
for this position are entirely unrelated to the issue of whether a government official must permit
everyone that wants to engage with him in a public setting to do so. See id. All three of the cited
cases instead involve a government attempt to use the law to effectively prohibit critical or disloyal
speech and punish the offender. See New York Times Co. v. Sullivan, 376 U.S. 254, 256 (1964)

9

The distinction between various social media platforms reinforces the value of looking closely at Twitter and the
@realDonaldTrump account specifically, rather than lumping together all forms of social media (or the internet writ
large). Compare Packingham v. North Carolina, 137 S. Ct. 1730, 1744 (2017) (Alito, J., concurring in the
judgment), with FALS Br. at 6-7; see also Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 557 (1975).

16

(Alabama city commissioner had been awarded $500,000 in suit claiming that an ad about backlash
to the civil rights movement was libelous); Monitor Patriot Co. v. Roy, 401 U.S. 265, 266–67
(1971) (candidate had won $20,000 in libel action against a newspaper that published a column
critical of him); Baumgartner v. United States, 322 U.S. 665, 665-69 (1944) (government had
revoked the citizenship of a German-born man for statements supportive of Hitler and the Nazis).
But in Sullivan, Roy, and Baumgartner, the Court had to resolve the foundational issue of
whether the targeted speech was lawful, not whether a public official had to listen to it.10 Here,
although the Individual Plaintiffs have been blocked from engaging with a particular Twitter
account, they remain fully able to engage in “vehement, caustic, and sometimes unpleasantly sharp
attacks on [the] government,” Sullivan, 376 U.S. at 270, as a cursory look at their Twitter accounts
confirms. Since they were blocked, the Individual Plaintiffs have continued to engage in extensive
criticism of the President, on a platform accessible to the general public, and in a manner that
directly links the President’s Twitter account to their comments.11 Thus, the blocking does not
prevent Plaintiffs’ speech; it simply alters their relationship with the President himself by
eliminating direct interaction. See Knight, 465 U.S. at 288 (“A person’s right to speak is not
infringed when government simply ignores that person while listening to others.”).

10

Further underscoring why this case is different is the hyperbolic suggestion from the First Amendment Scholars that
blocking the Individual Plaintiffs is analogous to an authoritarian regime’s efforts to “quash[] democratic impulses.”
FALS Br. 19. The robust and unimpeded criticism of the President (along with countless other public officials) that
takes place on Twitter confirms that any such comparison is fanciful.
See, e.g., Stip. Ex. C at 4 (“Anyone who stands behind Trump at this point tacitly endorses racism at a minimum.”),
ECF No. 33-3; id. Ex. D at 13 (“President Snowflake must be protected from ugly pictures”), ECF No. 33-4; id. Ex.
E at 8 (“I call him ‘Nostradumbass’”), ECF No. 33-5; id. Ex. F at 1 (“Trump is so quick to condemn anyone who is
either a woman or a person of color. It’s a misogynist, racist Pavlovian response.”), ECF No. 33-6; id. Ex. G at 4 (“I
want to go back to the days when the celebrity I hated most was The Kardashians and @realDonaldTrump was just
some pervy old guy.”), ECF No. 33-7; id. Ex. H at 5 (“Trumpcare: $800,000,000,000 taken from poor to give to
rich. @realDonaldTrump now starts to kill Americans for money . . .”), ECF No. 33-8; see also Twitter, “About
replies and mentions,” https://support.twitter.com/articles/14023 (last visited Nov. 17, 2017) (explaining that when a
Twitter user inserts another person’s username (like @realDonaldTrump) into the body of a tweet, other users
searching for that username can see the tweets that “mention” the username).
11

17

According to Plaintiffs, the President has no ability to ignore someone who wishes to speak
to him directly. Adopting that position would place courts in the untenable role of policing basic
decisions that public officials make, in both digital and “real world” settings, about whether to
engage with a member of the public. For example, if a congressman walks away from an advocacy
group’s lawyer at a public reception, can the lawyer ask a court to determine his motivation for
leaving? If a mayor turns away from a protestor at a public event, can a court force him to return
until the protestor is finished? In neither situation is the individual prohibited from speaking after
the official leaves; courts therefore should have no role in structuring those routine interactions.
Finally, Plaintiffs resist characterizing the President’s decision to block certain users from
the @realDonaldTrump account as government speech because the replies to the President’s
tweets, and the replies to those replies (i.e., the “comment threads”) are not also government
speech. Pls.’ Br. 20. But Defendants have not suggested that they were. Instead, and as explained
in Defendants’ opening brief, responses to the President’s tweets, and replies to those responses,
are the speech of the users who post them. And as Plaintiffs concede, although Twitter has made
choices about how to display that information, those choices do not actually prevent the Individual
Plaintiffs from replying to any user other than @realDonaldTrump. See Pls.’ Br. 21 n.8. In fact,
several of the Individual Plaintiffs continue to participate extensively in comment threads.12
To be sure, it appears that many of the Individual Plaintiffs would prefer to engage directly
with the President on Twitter, and have modified their behavior accordingly. See Pls.’ Br. 21-22

12

For example, Plaintiff Eugene Gu posted a series of six tweets in the comment threads responding to an August 17,
2017 tweet from the @realDonaldTrump account, and Plaintiff Rebecca Buckwalter posted her own reply to one of
Dr. Gu’s responses. Stip. Ex. C at 2 (“Just going to leave this here . . .”), ECF No. 33-3, available at
https://twitter.com/rpbp/status/898177038774927361; see also, e.g., id. Ex. D at 7-8 (Plaintiff Phillip Cohen posting
three tweets—a photo with the hyperlink https://t.co/J28JojHrhf, “i am not fake. here is the original,” and “Wait, slow
down”—in an @realDonaldTrump comment thread), ECF No. 33-4. Indeed, to take just one day as an example, Mr.
Gu posted tweets mentioning the @realDonaldTrump handle 31 times on September 24, 2017, the vast majority of
which appear in comment threads responding to @realDonaldTrump tweets. See id. Ex. F at 1-2, ECF No. 33-6.

18

n.8. But that is true of most anyone who unsuccessfully seeks out a conversation with a public
official in the hopes of amplifying their message. See Knight, 465 U.S. at 288. The fact that the
Individual Plaintiffs were unsuccessful in their efforts to engage directly with the President, yet
remain free to share their criticisms of the President on Twitter, is an indication that the
marketplace of ideas is functioning as it should: individuals are free to speak, and public officials
are free to choose whether to engage with them. See id.
ii. The @realDonaldTrump Account Is A Channel For The President’s
Speech, Not A “Forum” For The Speech Of Private Parties.
Plaintiffs’ analysis of the @realDonaldTrump account leaps immediately to the conclusion
that it is a designated public forum. Pls.’ Br. 17. But that logical leap ignores whether forum
analysis is even appropriate in the first place. See Defs.’ Br. 19. That fundamental question should
not be so readily set aside in light of the Supreme Court’s reluctance to extend forum analysis to
“very different context[s].” Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 673 (1998);
see also Packingham v. North Carolina, 137 S. Ct. 1730, 1744 (2017) (Alito, J., concurring in the
judgment) (emphasizing that courts “should be cautious in applying our free speech precedents to
the internet” and “should proceed circumspectly, taking one step at a time”).13 No court has ever
extended the public forum doctrine to cover the President’s personal Twitter account. And here,
the record and relevant authorities confirm that this Court should not be the first.

Plaintiffs and amici rely on the Court’s opinion in Packingham, which emphasizes in dicta the importance of the
internet to free speech. See, e.g., Pls.’ Br. 18; FALS Br. 2; see also Packingham, 137 S. Ct. at 1735, 1737. But the
nature of the First Amendment injury at issue in that case reinforces why there is not one here. In Packingham, the
Court struck down a North Carolina law that completely barred registered sex offenders from even accessing
“commonplace social media websites like Facebook, LinkedIn, and Twitter.” 137 S. Ct. at 1732; see also id. at 1737
(“North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current
events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring
the vast realms of human thought and knowledge.”). Here, in contrast, the Individual Plaintiffs are free to express
their views to the world through their Twitter accounts and able to consume information from across the Twitter
platform, including from the President’s @realDonaldTrump account, see Stip. ¶ 55.
13

19

To qualify as a “forum,” the space in question must meet two requirements: it must be
government-owned (or government-controlled), and the government must have opened up the
space for private parties to “communicate ideas to others.” W. Farms Assocs. v. State Traffic
Comm’n of State of Conn., 951 F.2d 469, 473 (2d Cir. 1991); see also Walker, 135 S. Ct. at 2250
(“[The] government ‘does not create a public forum by inaction or by permitting limited discourse,
but only by intentionally opening a nontraditional forum for public discourse.’” (quoting
Cornelius, 473 U.S. at 802)). If either of these attributes is lacking, forum analysis does not apply.
See Hudgens v. NLRB, 424 U.S. 507, 520–21 (1976) (holding that picketers did not have a First
Amendment right to speech at a shopping center because it was not public property); Am. Library
Ass’n, 539 U.S. at 206 (declining to apply forum analysis to the installation of internet filtering
software at public libraries because “a public library does not acquire Internet terminals in order
to create a public forum for Web publishers to express themselves”).
By labeling the @realDonaldTrump account a “forum,” Plaintiffs elide the distinction
between Twitter as an overall platform—which is unquestionably a place where private parties
communicate, but is not public property—and the @realDonaldTrump account specifically—
which, even if it is considered government-controlled property, is not a place where private parties
communicate. Put differently, if the government controlled all of Twitter, that presumably would
constitute a public forum. But the President controls only his account, and while he speaks through
that account, private parties do not. His account accordingly is not a “forum.”
The fact that comment threads about the President’s tweets are viewable from the
@realDonaldTrump page (in addition to the pages of those who reply to the President’s tweets)
does not change the fact that the account itself is not a “forum.” Drawing a parallel to the nondigital world reinforces this conclusion. If two individuals have a conversation in a public park,

20

no one would label the person who started the conversation a “forum”; the space in which the
conversation takes place—i.e., the park—would clearly be the relevant forum. Similarly, if two
Twitter users engage in a “conversation,” see supra at 15-16, it makes no sense to call one of the
two Twitter accounts the relevant “forum,” given that the “space” in which the conversation takes
place is the Twitter platform. To be sure, the pages of each participant in a Twitter conversation
contain a record of the conversation, but neither page is itself the “forum.”
The President’s inability to control the comment threads that his tweets provoke further
illustrates why it makes little sense to label his account a “forum.” Plaintiffs do not dispute that
the President cannot alter any of the content that is posted in response to his tweets, and he cannot
prevent a blocked user from participating in the comment threads. Defs.’ Br. 16 & n.8; cf. Davison,
2017 WL 3158389, at *5 (finding a First Amendment violation where a public official deleted a
critical comment by removing the original Facebook post to which the comment responded and
prevented the plaintiff from participating in comments on the official’s Facebook page). That
contrasts sharply with the control exercised in the public forum cases that Plaintiffs cite. See Pls.’
Br. 17-18. In Cornelius, for example, the government had excluded legal defense and political
advocacy organizations from participating in a federal charity drive. 473 U.S. at 790. In Perry, a
school district had cut off access to the interschool mail system and to teacher mailboxes for all
but one teachers’ union. 460 U.S. at 38-39. And in Rosenberger v. Rector and Visitors of the
University of Virginia, a university had completely withheld payments from a student activities
fund—the relevant forum in that case—from a student paper. 515 U.S. 819, 822-23, 827 (1995);
see also Make the Rd. by Walking, Inc. v. Turner, 378 F.3d 133, 137 (2d Cir. 2004) (applying
forum analysis to the exclusion of an advocacy organization from welfare office waiting rooms).
Plaintiffs do not identify any case where the government has as little control over a “forum” as the

21

President has over the conversations that take place in response to his tweets. The fact that the
President does not have the control necessary to exclude users altogether from the comment
threads reaffirms that his account is not a “forum”—even in a “metaphysical” sense, Rosenberger,
515 U.S. at 830—that the government has established for private speech.14
Plaintiffs’ effort to recast the President’s Twitter account as analogous to “a digital town
hall” suffers from the same shortcoming. Pls.’ Br. 1; see also Sutliffe v. Epping Sch. Dist., 584
F.3d 314, 334 (1st Cir. 2009) (cautioning against “highly strained” public forum analogies). Both
the setting and the nature of the interactions at issue distinguish this case from instances where
courts have reached the uncontroversial conclusion that, when a government body carves out time
on public property for citizens to voice their views about matters of public policy, the government
cannot silence the citizens with whom it disagrees. See Pls.’ Br. 19 (citing cases). In this case,
there is no public property on which citizens have been invited to speak. Supra at 19-22. And
again, no one has been silenced, as anyone blocked by the President can still participate in the
supposed “town hall” by participating in the comment threads. Supra at 18-19.15
More broadly, Plaintiffs’ characterization of the President’s Twitter account as akin to a
town hall again conflates the regulation of a forum, which might take place when the government
hosts citizens for a town hall, with the President’s role as a speaker in Twitter’s marketplace of

Twitter, in contrast, has actual control over the speech of Twitter users. Twitter’s terms of service provide that it
may “suspend or terminate” an account, or “cease providing [an account] with all or part of the [platform’s] Services,”
for “no reason” or for actions that violate Twitter’s rules. Terms of Service, Twitter, https://twitter.com/en/tos (last
visited Nov. 17, 2017). And as recent events illustrate, one Twitter employee can exercise far more control over
another user’s Twitter account than the President can. See Jessica Roy, On last day of work, Twitter employee
deactivates President Trump’s account, L.A. Times (Nov. 2, 2017), http://fw.to/ON9b3Ik (reporting that a Twitter
employee temporarily deactivated the @realDonaldTrump account).
14

15

Additionally, neither Plaintiffs nor amicus the Electronic Frontier Foundation provide evidence that the President
has sought to recreate a “town hall” discussion on Twitter. See EFF Br. 18-19 (citing examples from other officials).

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ideas. And although the First Amendment may constrain the former, it does not prevent the
President from declining to engage with the Individual Plaintiffs on Twitter.
B. The Government Has Not Denied The Individual Plaintiffs Access To
Government Information.
Similarly, the Individual Plaintiffs have no First Amendment right to follow the
@realDonaldTrump account as a means of accessing official information. Plaintiffs contend that
blocking is a “burden on the Individual Plaintiffs’ access to government information that
Defendants otherwise make generally available to the public,” Pls.’ Br. 23, but they rest this
access-to-information claim primarily on cases involving total restrictions on information. Sorrell
v. IMS Health Inc., 564 U.S. 552 (2011); L.A. Police Dep’t v. United Reporting Publ’g Corp., 528
U.S. 32 (1999). In United Reporting, a California statute provided for the release of certain arrestee
information only to selected types of records requesters. 528 U.S. at 35. In Sorrell, a Vermont
statute prohibited the sale or disclosure of pharmaceutical records with certain exceptions. 564
U.S. at 557. Neither case supports the proposition that the Individual Plaintiffs have a right to
interact with the President on social media, and Plaintiffs’ reliance on these cases is misplaced.16
Even accepting the unproven premise that there is a constitutional right to the information
on the @realDonaldTrump account, the President’s decision to block the Individual Plaintiffs is
not a denial of access. The information on the account is offered to the public at large on the
President’s personal Twitter page: www.twitter.com/realDonaldTrump. Stip. ¶¶ 36, 55. Unlike
in United Reporting, any member of the public can access the information, and unlike in Sorrell,
there is no legal sanction for using that information to engage in speech. The Individual Plaintiffs

Plaintiffs also direct the Court to Matal v. Tam, 137 S. Ct. 1744 (2017), for the general proposition that “the
Government ‘may not deny a benefit to a person on a basis that infringes his constitutionally protected . . . freedom of
speech even if he has no entitlement to that benefit.’” Id. at 1760-61 (quoting Agency for Int’l Dev. v. All. for Open
Soc’y Int’l, 133 S. Ct. 2321, 2328 (2013)). Plaintiffs have not identified the denial of a public benefit akin to the
trademark at issue in Tam, nor have they identified a resulting limitation on the Individual Plaintiffs’ speech.
16

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are free to access the information and speak about it. But Plaintiffs assert that Twitter users have
a constitutional right to engage with the President on social media on their own terms—that is, to
have the most convenient possible access to information. There is no First Amendment right to
have public information delivered according to a plaintiff’s preferences. See, e.g., Sample v.
Bureau of Prisons, 466 F.3d 1086, 1087-88 (D.C. Cir. 2006) (federal agencies required to respond
to Freedom of Information Act requests only in “readily reproducible” formats).
At bottom, Plaintiffs seek to enforce new First Amendment rules for public officials on
social media by requiring officials to engage with all users that so desire. And many of the
decisions about who is even in that pool of users in the first instance—who may create an account,
who is banned by Twitter as a consequence of a violation of a term of service—are beyond the
reach of public officials. The First Amendment does not, and cannot, guarantee undifferentiated
engagement with officials’ personal social media accounts.
C. The Individual Plaintiffs Have No Free-Standing Right To Petition The
Government Through The President’s Personal Twitter Account.
Lastly, Plaintiffs cannot establish that the President’s decision to block their accounts
violates the right “to petition the Government for a redress of grievances.” U.S. Const. amend I.
Generally, there “is no sound basis for granting greater constitutional protection to statements
made in a petition to the President than other First Amendment expressions,” McDonald v. Smith,
472 U.S. 479, 485 (1985), but the Individual Plaintiffs argue that their tweets enjoy petition rights
greater than speech rights because the President’s Twitter account is “a channel through which
ordinary citizens can petition the President directly.” Pls.’ Br. 26.17 This conclusory assertion—

Plaintiffs cite dicta from Packingham, where the Court observed that “on Twitter, users can petition their elected
representatives and otherwise engage with them in a direct manner.” 137 S. Ct. at 1735; see also id. at 1738 (Alito,
J., concurring). This passage does not suggest any basis for a distinct First Amendment analysis here.
17

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which would apply to any remotely plausible petition claim—identifies no “special concerns of
the Petition Clause [that] would provide a sound basis for a distinct analysis.” Borough of Duryea
v. Guarnieri, 564 U.S. 379, 389 (2011). And Plaintiffs offer no distinct analysis to apply.
Even if the Court were to consider a free-standing petition claim, Plaintiffs cannot establish
a violation of any cognizable petition rights. The Individual Plaintiffs are free to tweet about the
President on their Twitter accounts and express their grievances at length—as they continue to do.
Stip. Exs. C-I, ECF 33-3 to 33-9. They can directly reply to the @POTUS and @WhiteHouse
accounts maintained by the President and the White House. Stip. ¶ 45. And they can both
“mention” the @realDonaldTrump account and tweet in its comment threads. Stip. ¶ 30. Blocking
is simply the embodiment of the President’s affirmative decision not to read those tweets or engage
with the users who post them. Id. ¶ 28. And the Petition Clause does not “require government
policymakers to listen or respond to individuals’ communications on public issues.” Knight, 465
U.S. at 285. The President could just as easily decide not to read unofficial mail or not to interact
with participants at a public event, and no one could seriously argue that his decision would
implicate the Petition Clause. Thus, the Individual Plaintiffs cannot establish a violation of their
petition rights.18
CONCLUSION
For these reasons, Defendants respectfully request that the Court grant their motion, deny
Plaintiffs’ cross-motion, and enter judgment for Defendants on all claims.

18

In a footnote, Plaintiffs offer a conclusory defense of their claim that the Knight Institute has been denied a First
Amendment “right to receive” the Individual Plaintiffs’ direct replies to the @realDonaldTrump account. Pls.’ Br. 22
n.9. However, Plaintiffs do not refute Defendants’ argument that any putative “right to receive” speech under the First
Amendment can be no greater than a speaker’s First Amendment right to speak. Defs.’ Br. 25 (citing, inter alia,
Spargo v. N.Y. State Comm’n on Judicial Conduct, 351 F.3d 65, 83 (2d Cir. 2003)). The Knight Institute accordingly
has no basis for relief independent of the Individual Plaintiffs’ claims.

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Dated: November 17, 2017

Respectfully submitted,
CHAD A. READLER
Principal Deputy Assistant Attorney General
BRETT A. SHUMATE
Deputy Assistant Attorney General
ERIC R. WOMACK
Assistant Branch Director
/s/ Michael H. Baer
MICHAEL H. BAER
DANIEL HALAINEN
Trial Attorneys
U.S. Department of Justice,
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, NW
Washington, DC 20530
Telephone:
[phone]
Facsimile:
[phone]
E-mail: [e-mail]
Counsel for Defendants

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