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

Filing 56

REPLY MEMORANDUM OF LAW in Support re: #42 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)

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 (NRB)
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’ REPLY MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’
CROSS-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
206 Kent Hall
1140 Amsterdam Avenue
[phone]
[e-mail]

TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii
INTRODUCTION ...........................................................................................................................1
ARGUMENT ...................................................................................................................................2
I.

Defendants’ blocking of the Individual Plaintiffs from the @realDonaldTrump
account violates the First Amendment. ..........................................................................2
A.

Defendants’ use of the @realDonaldTrump account is state action. ................ 2

B.

The @realDonaldTrump account is a designated public forum, and
Defendants’ viewpoint-based blocking of the Individual Plaintiffs
from that forum violates the First Amendment................................................. 4
1.

The @realDonaldTrump account is a designated public forum. .......... 4

2.

The @realDonaldTrump account is not government speech. ............... 5

3.

Defendants’ viewpoint-based blocking of the Individual
Plaintiffs from the @realDonaldTrump account
unconstitutionally excludes them from a designated public
forum. .................................................................................................... 6

C.

D.
II.

Defendants are violating the First Amendment by restricting the
Individual Plaintiffs’ access to generally available government
information based on their viewpoints. ............................................................. 7
Defendants’ viewpoint-based blocking violates the Individual
Plaintiffs’ right to petition................................................................................. 8

The Court can remedy Defendants’ ongoing violation of Plaintiffs’ First
Amendment rights..........................................................................................................9
A.

The Court has authority to grant relief against the President............................ 9

B.

The Court has authority to grant relief against the President’s aides. ............ 14

CONCLUSION ..............................................................................................................................15

i

TABLE OF AUTHORITIES
Cases
Am. Broad. Cos. v. Cuomo, 570 F.2d 1080 (2d Cir. 1977)............................................................. 4
Baker v. Carr, 369 U.S. 186 (1962).............................................................................................. 12
Bensayah v. Obama, 610 F.3d 718 (D.C. Cir. 2010) .................................................................... 10
Boumediene v. Bush, 553 U.S. 723 (2008) ................................................................................... 10
Boumediene v. Bush, 579 F. Supp. 2d 191 (D.D.C. 2008) ........................................................... 10
Cable News Network, Inc. v. Am. Broad. Cos., Inc., 518 F. Supp. 1238 (N.D. Ga.
1981) ....................................................................................................................................... 10
Clinton v. Jones, 520 U.S. 681 (1997) ...................................................................................... 9, 10
Clinton v. New York, 524 U.S. 417 (1998) ............................................................................. 10, 13
Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788 (1985) ................................... 4
Davison v. Loudoun Cty. Bd. of Supervisors, No. 1:16CV932, 2017 WL 3158389
(E.D. Va. July 25, 2017) ........................................................................................................... 4
Denver Area Educ. Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727 (1996) .......................... 4
Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83 (2d Cir.
2002) ......................................................................................................................................... 8
Franklin v. Massachusetts, 505 U.S. 788 (1992).................................................................... 12, 14
Freedom from Religion Found., Inc. v. Obama, 691 F. Supp. 2d 890 (W.D. Wis.
2010) ....................................................................................................................................... 10
Gaines v. Thompson, 74 U.S. (7 Wall.) 347 (1868)................................................................ 12, 13
Glass v. Coughlin, No. 91 Civ. 0193, 1991 WL 102619 (S.D.N.Y. May 29, 1991) .................... 14
Int’l Refugee Assistance Project v. Trump, 857 F.3d 554 (4th Cir.)............................................. 10
Johnson v. Perry, 859 F.3d 156 (2d Cir. 2017) .............................................................................. 4
Leathers v. Medlock, 499 U.S. 439 (1991) ..................................................................................... 8
Mackie v. Bush, 809 F. Supp. 144 (D.D.C. 1993) ........................................................................ 10
Make the Rd. by Walking, Inc. v. Turner, 378 F.3d 133 (2d Cir. 2004) ......................................... 6

ii

Marbury v. Madison, 5 U.S. 137 (1803) ....................................................................................... 14
Matal v. Tam, 137 S. Ct. 1744 (2017) ............................................................................................ 6
McKinnon v. Patterson, 568 F.2d 930 (2d Cir. 1977) .................................................................. 14
Mirabella v. Villard, 853 F.3d 641 (3d Cir. 2017) ......................................................................... 8
Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1866) ............................................................ 12, 13
Monsky v. Moraghan, 127 F.3d 243 (2d Cir. 1997) ....................................................................... 3
Nat’l Treasury Emps. Union v. Nixon, 492 F.2d 587 (D.C. Cir. 1974) .................................. 11, 13
Nixon v. Sirica, 487 F.2d 700 (D.C. Cir. 1973) ............................................................................ 10
Packingham v. North Carolina, 137 S. Ct. 1730 (2017) ................................................................ 8
Pitchell v. Callan, 13 F.3d 545 (2d Cir. 1994) ............................................................................... 3
Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995) ........................................ 6
Se. Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975) .................................................................... 4
Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105
(1991) ........................................................................................................................................ 7
Sneaker Circus v. Carter, 457 F. Supp. 771 (E.D.N.Y. 1978) ..................................................... 10
Swan v. Clinton, 100 F.3d 973 (D.C. Cir. 1996) .................................................................... 13, 14
U.S. Postal Serv. v. Hustler Magazine, Inc., 630 F. Supp. 867 (D.D.C. 1986) .............................. 8
United States v. Burr, 25 F. Cas. 187 (C.C.D. Va. 1807) (No. 14,694) ................................... 9, 11
United States v. Giordano, 442 F.3d 30 (2d Cir. 2006) .................................................................. 3
United States v. Lee, 106 U.S. 196 (1882) ...................................................................................... 9
United States v. Nixon, 418 U.S. 683 (1974) ...................................................................... 9, 11, 12
United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803 (2000) .................................................. 7
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) ........................................ 9, 11, 14
Other Authorities
Laura Krugman Ray, From Prerogative to Accountability: The Amenability of the
President to Suit, 80 Ky. L.J. 739 (1992) ......................................................................... 10, 11

iii

INTRODUCTION
The President and his aides use the President’s Twitter account, @realDonaldTrump, as a
digital town hall, with the President speaking from a virtual podium and citizens responding to
him and engaging with one another through the account’s comment threads. The account is a
designated public forum, and accordingly Defendants’ viewpoint-based blocking of the
Individual Plaintiffs from it is unconstitutional. Defendants’ ongoing conduct also violates the
Individual Plaintiffs’ right to access generally available government information, as well as their
right to petition the government for redress of grievances.
Defendants’ opposition brief consists almost entirely of arguments that Plaintiffs
addressed in their opening brief. Defendants continue to assert that their use of the
@realDonaldTrump account is not state action because the account was created by the President
before he took office. But, as Plaintiffs have already explained, the appropriate analysis is
functional rather than formalistic, and the crucial question is how the account is used. Here,
Defendants’ own admissions establish that Defendants use the @realDonaldTrump account as an
instrument of governance. Consequently, Defendants’ operation of the @realDonaldTrump
account is state action.
Defendants also reiterate their argument that the President’s “decisions about whom to
engage with” on Twitter are nothing more than government speech, Gov’t Opp’n Br. 1,1 and that
accordingly the public forum doctrine does not apply here. Like Defendants’ state action

1

Plaintiffs use the following abbreviations in this memorandum: Joint Stipulation (“Stip.”),
ECF No. 30-1; 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 Amend. Legal Scholars (“First Amend. Br.”), ECF
No. 47; Br. of Amicus Curiae Elec. Frontier Found. (“EFF Br.”), ECF No. 49; Br. of Fed. Courts
Scholars as Amici Curiae (“Fed. Cts. Br.”), ECF No. 51; and Defs.’ Mem. in Opp’n to Pls.’
Cross-Mot. for Summ. J. and Reply Mem. in Supp. of Defs.’ Mot. for Summ. J. (“Gov’t Opp’n
Br.”), ECF No. 54.
1

argument, this contention ignores how the @realDonaldTrump account is actually used. The
record shows that Defendants use the account not only to publish important information about
the presidency, but also to invite speech by ordinary citizens about the President and his
administration’s policies. Indeed, interactivity is one of Twitter’s defining features. That the
@realDonaldTrump account includes the President’s own speech does not make it something
other than a public forum. Town halls and school board meetings—quintessential designated
public forums—also include government speech.
Defendants’ argument that the Court lacks authority to remedy Plaintiffs’ injuries is
meritless, too. The courts have the authority to review the legality of the President’s official
actions and to grant relief when he acts unlawfully—indeed, this authority is fundamental to a
society governed by the rule of law. Here, the Court can also provide relief by enjoining the
President’s aides, including Defendant Daniel Scavino, who has the “access necessary to block
and unblock individuals from the @realDonaldTrump account.” Stip. ¶ 12.
ARGUMENT
I.

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

Defendants’ use of the @realDonaldTrump account is state action.

Defendants operate the @realDonaldTrump account as an extension of the White House
and a tool of governance. Pls.’ Br. 12–17. As Defendants have conceded, the
@realDonaldTrump home page indicates that the account belongs to the President, and it shows
images of him performing official duties. The vast majority of the tweets from the account
concern official decisions and policies, and the White House regularly uses the account to
announce major policy decisions. It is undisputed that Defendant Scavino and other White House
staff participate in the account’s management, including by drafting and posting tweets. The

2

President and his aides frequently refer to the account as a source of official statements of the
President, and federal courts and agencies have treated @realDonaldTrump tweets accordingly.
Two weeks ago, the Department of Justice filed a brief acknowledging that “[t]he government is
treating” certain tweets from @realDonaldTrump “as official statements of the President of the
United States.” Defs.’ Suppl. Submission 2, James Madison Project v. Dep’t of Justice, No.
1:17-cv-00144 (D.D.C. filed Nov. 13, 2017), ECF No. 29.
This Court should reject Defendants’ argument that the @realDonaldTrump account is
not subject to the First Amendment because it was established as a “personal” account before the
President took office. The Second Circuit has made clear that the state action analysis should be
a functional one that looks to the nature of the act being performed, not simply to whether the
officer is on or off duty or using private or government property. See Monsky v. Moraghan, 127
F.3d 243, 246 (2d Cir. 1997); Pitchell v. Callan, 13 F.3d 545, 548 (2d Cir. 1994); see also United
States v. Giordano, 442 F.3d 30, 43 (2d Cir. 2006) (Sotomayor, J.). Thus, the fact that the
account was created before President Trump’s inauguration is not determinative. See Giordano,
442 F.3d at 43 (rejecting defendant’s argument that “he cannot have acted under color of law
because his actions, although they took place during his mayoralty, ‘were clearly a part of and
derived from [a] personal relationship’ . . . that was unrelated to and predated his mayoralty”).
The Court should also reject Defendants’ invitation to consider the act of blocking in
isolation—and as a manifestation of personal pique rather than an exercise of state power. Gov’t
Opp’n Br. 10–11. Defendants’ ongoing blocking of the Individual Plaintiffs from the
@realDonaldTrump account is “an exercise of the executive power,” Gov’t Opp’n Br. 1, because
it has the effect of excluding the Individual Plaintiffs from a public forum. In precisely the same
way, an official presiding over a town hall would be exercising state action if she descended

3

from the dais to personally eject a critic from the hall. In any event, even if Defendants were
justified in focusing solely on the act of blocking, and in ignoring the nature of the forum, the
record makes clear that the Individual Plaintiffs were blocked after they expressed critical
opinions in response to the President’s tweets about official matters. The blocking therefore
constitutes state action even under Defendants’ theory.2
B.

The @realDonaldTrump account is a designated public forum, and
Defendants’ viewpoint-based blocking of the Individual Plaintiffs from that
forum violates the First Amendment.
1.

The @realDonaldTrump account is a designated public forum.

Defendants created a designated public forum for speech by choosing to use an inherently
interactive platform to communicate with the public without restricting who may enter the
conversation or what topics they may discuss. Pls.’ Br. 17–19. Defendants’ argument that a
public forum can never be created using private facilities (like a Twitter account) is wrong as a
matter of law. See, e.g., Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 555 (1975); Am. Broad.
Cos. v. Cuomo, 570 F.2d 1080, 1083 (2d Cir. 1977); Davison v. Loudoun Cty. Bd. of Supervisors,
No. 1:16CV932, 2017 WL 3158389, at *10 (E.D. Va. July 25, 2017); see also Denver Area
Educ. 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 v.
NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 801 (1985) (noting that public forum
analysis applies to “public property or to private property dedicated to public use”); cf. Johnson
v. Perry, 859 F.3d 156, 177 (2d Cir. 2017) (rejecting high school principal’s defense that the
2

Defendants’ argument that a finding of state action in these circumstances will impose a
“sweeping rule that brings private conduct within the scope of state action,” Gov’t Opp’n Br. 12,
is baseless. Plaintiffs do not dispute the proposition that public officials may use office phones
for personal purposes, or that public officials may maintain personal Twitter accounts. But
where, as here, the official uses a nominally personal Twitter account overwhelmingly for
official purposes, that general use—and the blocking in particular—constitutes state action.
4

First Amendment did not apply to his viewpoint-based expulsion of parent from basketball game
held at private sports arena). Defendants have not even engaged this substantial body of
precedent.
2.

The @realDonaldTrump account is not government speech.

Defendants devote much of their brief to arguing that the @realDonaldTrump account is
solely government speech and thus not subject to public forum analysis, Gov’t Opp’n Br. 13–23,
but that argument, too, is baseless. It misses the crucial fact that interactivity is a defining feature
of the Twitter platform and that the comment threads in which individuals respond to the
President and to one another are integral to the @realDonaldTrump account. No one would
mistake the statements in the comment threads for government speech, and the fact that a forum
includes government speech does not mean that it is something other than a public forum. Pls.’
Br. 20. Defendants point out that they did not design the Twitter platform, but this is irrelevant.
The important point is that they chose to use an interactive platform that invites speech by the
public at large, and in so doing they purposefully opened a forum to speech by the public.
(Notably, Defendants also make frequent use of Twitter’s interactive features by replying to and
retweeting the tweets of the President’s supporters. E.g., Stip. Ex. A. at 3–4, 9, 13, 20.)
For related reasons, Defendants are also wrong to analogize their conduct here to a public
official declining to engage with a critic in a public park or on the street. Gov’t Opp’n Br. 13–14.
The President’s blocking of the Individual Plaintiffs is not akin to the President turning away
from critics during a stroll in a park. Rather, it is akin to the President ejecting dissenting
speakers from a park in which he is conducting an official meeting that he has opened up to the

5

public at large.3 Plainly, the First Amendment does not prohibit the President or other public
officials from arranging private meetings with people whose views they favor, and from
excluding those whose views they disfavor. But, for reasons the Supreme Court and Second
Circuit have described repeatedly, the First Amendment imposes constraints on government
actors’ authority to exclude individuals from public forums.
3.

Defendants’ viewpoint-based blocking of the Individual Plaintiffs
from the @realDonaldTrump account unconstitutionally excludes
them from a designated public forum.

Defendants’ blocking of the Individual Plaintiffs from the @realDonaldTrump account
because of their expressed views on the President’s policies is the most egregious form of First
Amendment speech violation—one that is impermissible in any type of forum. See, e.g., Matal v.
Tam, 137 S. Ct. 1744, 1765 (2017); Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S.
819, 829 (1995); Make the Rd. by Walking, Inc. v. Turner, 378 F.3d 133, 143 (2d Cir. 2004).
Having no basis to argue that Defendants are justified in blocking individual citizens
from a public forum based on their political views, Defendants argue instead that Plaintiffs have
not suffered real harm. But Defendants have conceded that the blocking impedes the Individual
Plaintiffs from accessing and responding to tweets from @realDonaldTrump, and from
participating fully in the associated comment threads, without the use of burdensome and timeconsuming workarounds. Stip. ¶¶ 56, 58–60; see also First Amend. Br. 15–16 (detailing four
“particularly acute” harms to Individual Plaintiffs’ speech rights in the context of the interactive
and “real-time” nature of speech on Twitter). Defendants’ ongoing conduct thus burdens the
3

Defendants’ analogy might be more apt if Defendants had “muted” the Individual Plaintiffs
rather
than
blocked
them.
See
Muting
Accounts
on
Twitter,
Twitter,
https://support.twitter.com/articles/20171399. If Defendants had muted the Individual Plaintiffs,
they would have spared the President from having to encounter the Individual Plaintiffs’
responses and criticisms, but they would not have impeded the Individual Plaintiffs from
accessing the President’s tweets or engaging with others in the associated comment threads.
6

Individual Plaintiffs’ free speech rights on the basis of viewpoint, in violation of the First
Amendment.
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 also imposes an unconstitutional
viewpoint-based burden on the Individual Plaintiffs’ ability to access generally available
government information. Although Defendants are not required to make the @realDonaldTrump
account accessible to the public at large, having done so, Defendants cannot constitutionally
restrict the Individual Plaintiffs from accessing those statements simply because the President
disagrees with their views.
Defendants argue that there is no First Amendment violation here because the Individual
Plaintiffs, despite having been blocked from the @realDonaldTrump account, can still access the
President’s tweets. Defendants are correct that the Individual Plaintiffs have not been precluded
altogether from accessing the President’s tweets. They can access the tweets by logging out of
Twitter and visiting the President’s public Twitter page. Many of the President’s tweets are also
published in the newspapers. But Plaintiffs’ complaint is not that the Individual Plaintiffs have
been denied access altogether, but that Defendants have burdened their access to the President’s
tweets simply because they criticized the President or his views. The Supreme Court has
emphasized that laws burdening speech based on content or viewpoint are as suspect as laws
banning speech outright on these grounds, because both types of government action create the
danger that the government is impermissibly favoring certain ideas in the realm of public
discourse. See, e.g., United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 812 (2000); Simon
& Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 116 (1991); Leathers

7

v. Medlock, 499 U.S. 439, 448 (1991). No conceivable legitimate government interest could
justify burdening the Individual Plaintiffs’ ability to read tweets from the @realDonaldTrump
account—a crucial source of information about the presidency, by Defendants’ own account—
simply because the President is unhappy with their criticism of him.
D.

Defendants’ viewpoint-based blocking violates the Individual Plaintiffs’ right
to petition.

The Petition Clause guarantees individuals’ right to speak to the President through
available communication channels. See Mirabella v. Villard, 853 F.3d 641 (3d Cir. 2017); U.S.
Postal Serv. v. Hustler Magazine, Inc., 630 F. Supp. 867, 874 (D.D.C. 1986). As the Supreme
Court observed last Term, a public official’s Twitter account serves as a particularly effective
channel for petition activity. Packingham v. North Carolina, 137 S. Ct. 1730, 1735 (2017)
(“[O]n Twitter, users can petition their elected representatives and otherwise engage with them in
a direct manner.”). Defendants’ principle response to this argument is to insist that that the
Individual Plaintiffs can still speak about the President in channels not directed to his attention.
Defendants also argue that the President is not required to read or respond to every constituent
communication no matter what form it takes. Gov’t Opp’n Br. 25. Neither of these arguments is
persuasive. Plainly, the ability to speak to the President and the ability to speak about the
President are very different things, and the second is not a substitute for the first. And while
Defendants are obviously correct that the President is not required to listen carefully to every
constituent, let alone respond to every constituent, the First Amendment precludes the President
from opening a channel for petitions and then closing it only to those whose views he dislikes.
Mirabella, 853 F.3d at 649–50; Hustler, 630 F. Supp. at 871 (“[E]lected representatives of the
people . . . cannot simply shield themselves from undesirable mail in the same manner as an
ordinary addressee.”); cf. Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d

8

83, 91–92 (2d Cir. 2002) (holding plaintiff had adequately pleaded unconstitutional retaliation
for petition activity).
II.

The Court can remedy Defendants’ ongoing violation of Plaintiffs’ First
Amendment rights.
The Court has the authority to remedy the injuries Plaintiffs have complained of here. See

United States v. Lee, 106 U.S. 196, 220 (1882) (“All the officers of the government, from the
highest to the lowest, are creatures of the law and are bound to obey it.”). Defendants argue that
their conduct is beyond the reach of the Court even if that conduct is unconstitutional, but the
cases they rely on do not support this dangerous proposition. To the contrary, the courts have
issued equitable relief against the President himself in many different contexts involving
executive interests far weightier than those at issue here. The Court also has the authority to
enjoin the President’s aides, including Defendant Scavino, who has the acknowledged ability to
block and unblock individuals from the @realDonaldTrump account.
A.

The Court has authority to grant relief against the President.

“The Court has the authority to determine whether [the President] has acted within the
law.” Clinton v. Jones, 520 U.S. 681, 703 (1997); Pls.’ Br. 27–31. Courts have exercised this
authority—including by issuing equitable relief against the President—in a wide variety of
contexts, many of which implicated much more significant executive interests than any
Defendants can plausibly assert in this one. The Supreme Court enjoined President Truman’s
seizure of the nation’s steel mills despite his conclusion that the seizure was necessary to avert a
national emergency. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). It affirmed a
subpoena for confidential White House records in the President’s personal possession for use as
evidence in a criminal prosecution implicating the President himself. United States v. Nixon, 418
U.S. 683 (1974); see also United States v. Burr, 25 F. Cas. 187 (C.C.D. Va. 1807) (No. 14,694).

9

It affirmed the power of the courts to order the President to release prisoners held as enemy
combatants. Boumediene v. Bush, 553 U.S. 723, 771 (2008).4 And it affirmed a declaration
invalidating the President’s exercise of the line item veto. Clinton v. New York, 524 U.S. 417,
425 n.9, 449 (1998). Following the Supreme Court’s lead, lower courts routinely conclude that
they have the authority to issue injunctive and declaratory relief against the President for his
official acts.5
Defendants attempt to distinguish Youngstown on the ground that it involved injunctive
relief “directed at the President’s subordinates” and not against the President himself, Gov’t
Opp’n Br. 4, but courts have rejected this reading. See, e.g., Jones, 520 U.S. at 703; Nixon v.
Sirica, 487 F.2d 700, 709 (D.C. Cir. 1973); Sneaker Circus v. Carter, 457 F. Supp. 771, 782
(E.D.N.Y. 1978); see also Fed. Cts. Br. 8–9. Indeed, each of the seven opinions in Youngstown
4

On remand, the district court denied a motion to dismiss the President as an “improper
respondent” pursuant to the same authorities Defendants cite in the instant case, see Gov’t Mot.
to Dismiss Improper Resp’ts, Boumediene v. Bush, 04-cv-01166 (D.D.C. Aug. 12, 2008), 2008
WL 5262160; Minute Order, Boumediene v. Bush, 04-cv-01166 (D.D.C. Nov. 10, 2008)
(denying motion), and proceeded to grant habeas relief for five petitioners against respondents,
including the President, Boumediene v. Bush, 579 F. Supp. 2d 191 (D.D.C. 2008); see Bensayah
v. Obama, 610 F.3d 718 (D.C. Cir. 2010) (reversing denial of remaining petition on appeal).
5

See, e.g., Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 587 (4th Cir.) (enjoining
enforcement of President’s executive order and observing that “the Supreme Court . . . has not
countenanced judicial abdication, especially where constitutional rights, values, and principles
are at stake”), cert. granted, 137 S. Ct. 2080 (2017), and vacated and remanded on other
grounds, No. 16-1436, 2017 WL 4518553 (U.S. Oct. 10, 2017); Freedom from Religion Found.,
Inc. v. Obama, 691 F. Supp. 2d 890, 908 (W.D. Wis. 2010) (“Defendants are . . . wrong to
suggest that the President is immune from injunctive or declaratory relief.”), vacated on other
grounds, 641 F.3d 803 (7th Cir. 2011); Mackie v. Bush, 809 F. Supp. 144, 146 (D.D.C. 1993)
(preliminarily enjoining President from removing plaintiffs from government office), vacated on
mootness grounds sub nom. Mackie v. Clinton, 10 F.3d 13 (D.C. Cir. 1993); Cable News
Network, Inc. v. Am. Broad. Cos., Inc., 518 F. Supp. 1238, 1245 (N.D. Ga. 1981) (preliminarily
enjoining President “from totally excluding television news representatives from participating in
pool coverage of Presidential activities and White House events”); Sneaker Circus v. Carter, 457
F. Supp. 771, 782 (E.D.N.Y. 1978) (concluding that “doctrine of executive immunity” did not
bar suit for declaratory and injunctive relief against the President); see generally Fed. Cts. Br.
12–13; Laura Krugman Ray, From Prerogative to Accountability: The Amenability of the
President to Suit, 80 Ky. L.J. 739, 786–809 (1992) (surveying cases).
10

framed the case as one testing the constitutionality of an order issued by the President. 343 U.S.
at 582 (reviewing the “President’s order . . . direct[ing] that a presidential policy be executed in a
manner prescribed by the President”).6 While the Court ultimately directed its injunction to the
Secretary of Commerce, the notion that the Youngstown injunction did not equally constrain the
President “exalt[s] form over substance.” Nat’l Treasury Emps. Union v. Nixon, 492 F.2d 587,
613 (D.C. Cir. 1974) (“[I]t would be exalting form over substance if the President’s acts were
held to be beyond the reach of judicial scrutiny when he himself is the defendant, but held within
judicial control when he and/or the Congress has delegated the performance of duties to federal
officials subordinate to the President and one or more of them can be named as a defendant.”).
Defendants attempt to distinguish the Supreme Court’s decisions in United States v.
Nixon, 418 U.S. 683, and United States v. Burr, 25 F. Cas. 187, on the ground that those cases
involved subpoenas. Gov’t Opp’n Br. 4. Defendants fail to explain, however, why subpoenas
compelling the President to produce records should be considered less offensive to executive
prerogatives than an injunction compelling the President to unblock individuals from his Twitter
account. In United States v. Nixon, the Supreme Court affirmed a subpoena requiring President
Nixon to turn over tapes capturing confidential conversations between the President and his aides

6

See Youngstown, 343 U.S. at 638 (Jackson, J., concurring) (characterizing order as a
“Presidential claim to power at once so conclusive and preclusive” that it “must be scrutinized
with caution, for what is at stake is the equilibrium established by our constitutional system”); id.
at 655 (Burton, J., concurring) (reviewing the “validity of the President’s order of seizure”); id.
at 661–62 (Clark, J., concurring) (invalidating the President’s seizure order as beyond “the limits
of presidential power”); id. at 632 (Douglas, J., concurring) (refusing to “sanction[] the present
exercise of power by the President”); id. at 614 (Frankfurter, J., concurring) (exercising his
“judicial duty to find that the President ha[d] exceeded his powers”); id. at 709 (Vinson, J.,
dissenting) (insisting that “[a] sturdy judiciary . . . must independently determine for itself
whether the President was acting . . . as required by the Constitution”); see also Ray, From
Prerogative to Accountability, 80 Ky. L.J. at 762 (“The language of all the opinions makes clear
that the Justices viewed the case as one of presidential rather than delegated authority; Charles
Sawyer, the named defendant, was very much the forgotten man.”).
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at the White House. 418 U.S. at 686. It did so in the context of a criminal case in which the
President himself was named as an unindicted co-conspirator. Id. at 687. The notion that the
judiciary has authority to order the President to disclose his confidential White House
conversations but not to order him to unblock individuals from his public Twitter account is
nonsensical.
Defendants rely, finally, on Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1866), but this
case does not stand for the proposition that the President is beyond the reach of the Court, as they
seem to suggest. Gov’t Opp’n Br. 3. Mississippi is best understood as “an early application of the
political question doctrine,” which prohibits judicial resolution of issues committed exclusively
to the political branches. Fed. Cts. Br. 4; Mississippi, 71 U.S. at 498–99 (considering “single
point” of whether the Court could enjoin the President from enforcing acts of Congress and
concluding that duty to execute the laws was “purely executive and political” and therefore not
subject to “judicial interference”). This is how the Supreme Court itself understood the case in
Gaines v. Thompson, 74 U.S. (7 Wall.) 347, 353 (1868) (invoking Mississippi under “general
doctrine” that courts may not interfere in any public officer’s exercise of “public duties . . .
confided” to him “by law”); see Fed. Cts. Br. 5, and in Baker v. Carr, 369 U.S. 186, 224–26 &
n.52 (1962) (reviewing Mississippi among “precedents as to what constitutes a nonjusticiable
‘political question’”).7

7

Defendants claim to find support for their sweeping reading of Mississippi in Justice
O’Connor’s plurality opinion in Franklin v. Massachusetts, 505 U.S. 788 (1992). But Justice
O’Connor’s language was dicta, and in any event her analysis turned ultimately on
considerations of judicial prudence, not judicial power. Id. at 803 (plurality) (concluding that the
Court “need not decide whether injunctive relief against the President was appropriate”).
Moreover, four Justices who did not join Justice O’Connor’s plurality opinion did not question
plaintiff’s standing to seek relief against the President. See id. at 807–23 (Stevens, J.,
concurring).
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Even if Defendants were correct that Mississippi must be understood to mean that the
courts cannot enjoin the President except as to “ministerial” duties, the duty at issue here—
unblocking individuals from a social media account—is ministerial in the relevant sense of the
word, and a far cry from the “purely executive and political” duties to enforce the Reconstruction
Acts as President and Commander-in-Chief at issue in Mississippi. 71 U.S. at 499 (considering
President’s duty to ensure that acts were “faithfully executed” by assigning generals to command
in the South, affording them adequate military resources, and supervising them “as commanderin-chief”); cf. Gaines, 74 U.S. at 353 (contrasting ministerial duties with questions “requir[ing]
the careful consideration and construction of more than one act of Congress”). Defendants
suggest that Plaintiffs are asking the Court to “instruct” the President “on how to perform his
official duties on a day-to-day basis,” Gov’t Opp’n Br. 5, but this is inaccurate. Plaintiffs ask the
Court to order the President to take a single action—unblock the Individual Plaintiffs—
consistent with “a simple, definite duty” not to censor his constituents on the basis of their
viewpoints, a duty that “aris[es] under conditions admitted or proved to exist, and imposed by
law.” Mississippi, 71 U.S. at 498; cf. Swan v. Clinton, 100 F.3d 973, 977 (D.C. Cir. 1996)
(holding that President’s duty to comply with statutory removal restrictions was “ministerial . . .,
for the President is bound to abide by the requirements of duly enacted and otherwise
constitutional statutes”).8

8

The Court can issue declaratory relief against the President even if it declines, as a
prudential matter, to issue injunctive relief. Nat’l Treasury Emps. Union, 492 F.2d at 616
(concluding that court had jurisdiction to issue writ of mandamus against the President but
“opt[ing] instead” to issue declaration); see Clinton, 524 U.S. 417 (declaring President’s line
item veto unconstitutional).
13

B.

The Court has authority to grant relief against the President’s aides.

In any event, the Court could remedy Plaintiffs’ injuries here by issuing equitable relief
against the President’s aides. See Pls.’ Br. 32–33; see, e.g., Franklin v. Massachusetts, 505 U.S.
788, 803 (1992) (plurality); Youngstown, 343 U.S. at 582, 589. Notably, in Swan v. Clinton, the
court granted injunctive relief against subordinate executive officials even though they bore no
responsibility for Swan’s injury; some of them were not named in the complaint; the relief they
could provide was partial; and the President still “ha[d] the power, if he so chose, to undercut
this relief.” 100 F.3d at 979–80. As in Franklin, Youngstown, and Swan, the Court is entitled to
presume, in the absence of a clear statement to the contrary, that the President would respect a
judicial order relating to the constitutionality of his actions even if the order were formally
directed to his aides. Cf. Marbury v. Madison, 5 U.S. 137, 171 (1803) (remarking that it is “never
presumed” that the President will act unlawfully).
Defendants are likewise wrong to contend that the Court cannot enjoin White House
officials who did not personally block the Individual Plaintiffs. Gov’t Opp’n Br. 7. Plaintiffs
have sued Defendants in their official capacities, and accordingly Plaintiffs’ entitlement to relief
against them does not turn on their personal complicity in the unconstitutional conduct. Glass v.
Coughlin, No. 91 Civ. 0193, 1991 WL 102619, at *2 (S.D.N.Y. May 29, 1991) (“[P]ersonal
involvement of an official sued in his official capacity is not necessary where the plaintiff is
seeking only injunctive or declaratory relief,” as opposed to damages, for constitutional
violations); McKinnon v. Patterson, 568 F.2d 930, 934 & n.4 (2d Cir. 1977). Defendant Scavino,
at least, is involved in administering, maintaining, and using the @realDonaldTrump account,
and is therefore involved in the ongoing blocking of the Individual Plaintiffs. He has the access
and ability necessary to block and unblock users from it. Stip. ¶¶ 12, 39; see Pls.’ Br. 33.

14

Consequently, he has the ability to remedy Plaintiffs’ injuries, and the Court has the authority to
order him to do so.
CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that the Court grant them
summary judgment on all of their claims.
December 1, 2017
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

Respectfully submitted,
/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
206 Kent Hall
1140 Amsterdam Avenue
New York, NY 10027
[phone]
[e-mail]
Counsel for Plaintiffs

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