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

Filing 61

LETTER addressed to Judge Naomi Reice Buchwald from Daniel Halainen dated January 26, 2018 re: Plaintiffs' January 23, 2018 Letter. Document filed by Daniel Scavino, Sean M Spicer, Donald J. Trump.(Halainen, Daniel)

U.S. Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW
Washington, DC 20530

January 26, 2018
Via ECF and by Fax
The Hon. Naomi Reice Buchwald
United States District Court
Southern District of New York
500 Pearl Street
New York, NY 10007
Re: Knight First Amendment Institute at Columbia University, et al. v. Trump, et al.,
No. 17-cv-5205 (NRB)
Dear Judge Buchwald,
Defendants submit this letter in response to Plaintiffs’ January 23, 2018 letter, in which
Plaintiffs argue that the Second Circuit’s recent decision in Wandering Dago, Inc. v. Destito, No.
16-622, 2018 WL 265383 (2d Cir. Jan. 3, 2018), “effectively rejected” Defendants’ argument that
the President’s use of Twitter, if considered state action, is government speech.
In Wandering Dago, the Second Circuit considered whether a state agency could refuse a
food truck’s application to participate in a state-sponsored lunch program on the basis of an ethnic
slur in the company’s name. 2018 WL 265383, at *1-5. The state agency argued that its decision
constituted government speech because permitting the food truck’s participation would amount to
a government subsidy of slurs and could be misconstrued as a government endorsement. Id. at
*10-13. Using factors identified by the Supreme Court in cases such as Walker v. Texas Division,
Sons of Confederate Veterans, Inc., 135 S. Ct. 2239 (2015), and Pleasant Grove City, Utah v.
Summum, 555 U.S. 460 (2009), the court concluded that approving the food truck’s application
would not constitute government speech because the state agency would not “be viewed by the
public as having adopted [the food truck’s] speech as its own,” and that the food truck did not
“convey a government message.” Id. at *12-13.
Plaintiffs’ contention that the Second Circuit “effectively rejected” Defendants’ position
in the present case erroneously conflates the First Amendment issue here with the issues presented
in Wandering Dago. The question before the court in Wandering Dago was whether the speech
of a nongovernmental actor “that [was] otherwise private” had “become speech of the
government,” i.e., whether the government had, in effect, transformed private speech into
government speech. 2018 WL 265383, at *10. But no party in this case has argued that the factors

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relevant to that determination apply here, because there is no claim that the speech of
nongovernmental actors has become speech of the government. See, e.g., Defs.’ Opp. & Reply
Br. at 18 (“[R]esponses to the President’s tweets, and replies to those responses, are the speech of
the users who post them.”), ECF No. 54. Rather, as Defendants explained at length in the briefing,
the President on Twitter “serv[es] as a participant in, not a regulator of, the marketplace of ideas,”
because he is one of a multitude of individuals who choose to speak, and curate their experiences,
on Twitter. Id. at 14-15; see also Defs.’ Summ. J. Br. at 14-18, ECF No. 35.
Thus, although the Second Circuit’s decision reiterates familiar First Amendment
principles that already are addressed in the parties’ briefs, the court did not consider, much less
decide, the issue presented here: whether a government official’s decisions about whom to interact
with on Twitter should be treated differently from the decisions a government official makes about
whom to interact with in any other setting. Accordingly, Plaintiffs’ assertion that the Second
Circuit has “effectively rejected” Defendants’ argument is wholly lacking in merit.
Respectfully submitted,
CHAD A. READLER
Acting Assistant Attorney General
BRETT A. SHUMATE
Deputy Assistant Attorney General
ERIC R. WOMACK
Assistant Branch Director
/s/ Daniel Halainen
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