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Trump Supreme Court Twitter Spat Highlights ‘Doctrinal Puzzle’

Jan. 29, 2021, 9:44 AM

A case involving Donald Trump’s use of his personal Twitter account for official business now pending before the Supreme Court could signal how the justices plan to dispose of several others involving the ex-president’s policies.

The dispute revolves around a 2019 ruling from the New York-based U.S. Court of Appeals for the Second Circuit that found Trump’s use of @realDonaldTrump for official business created a “public forum” entitled to First Amendment protection. The court held that Trump violated the Constitution when he blocked followers because they were critical of him.

The Justice Department and the Twitter users who sued the president agree that the case is moot now that Trump is out of office and has been banned from the social media platform. But they disagree about how to get rid of it.

The case presents the justices with the “doctrinal puzzle” of what to do with an adverse judgment from a lower court that the losing party no longer has the ability to challenge, said civil procedure professor Robin Effron of Brooklyn Law School.

The Justice Department under Trump asked the court to dismiss the suit and throw out the lower court’s adverse ruling, which it said “exposes federal and state employees to constitutional liability when using their own personal property to speak.”

Under the Munsingwear doctrine, named after a 1950 ruling, the justices could “duck actually considering the merits of the First Amendment issue but also wipe the lower court slate clean of any judgments or precedents for future cases,” Effron said.

But they will only vacate a lower court judgment under Munsingwear if the party who lost in the lower court didn’t cause the case to become moot, said civil procedure professor Adam Steinman of the University of Alabama. The idea is that a party that makes a voluntary decision to settle rather than pursue an appeal shouldn’t then be able to benefit from vacatur, Steinman explained.

Determining which party is responsible for making a case moot isn’t always easy.

The Justice Department argued that the 2020 election won by Joe Biden mooted the case.

Twitter users who sued the president said Trump’s use of the social media platform on which he had tens of millions of followers in the aftermath of the Jan. 6 Capitol riot “to tweet misinformation about the election” led Twitter Inc., a public company, to permanently suspend the account, thus mooting the case.

“In short, Petitioners’ own actions caused this case to be moot, and for that reason, vacatur under Munsingwear would be inappropriate,” they argue.

“It remains to be seen whether Munsingwear will come up in pending challenges to Trump administration policies that may be changed under the Biden administration,” Steinman said.

It is “obviously way more complicated” to determine who is responsible for mooting a case “when we move away from private parties and into the government realm,” Effron said.

In Munsingwear itself, the case became moot because an executive order repealed the challenged regulation, Steinman said. But a footnote in a later case suggested that repeal of regulations could be attributed to the government in determining the party responsible for mooting the case.

That issue is likely to play out in a handful of cases pending at the court dealing with federal policies likely to be changed under the Biden administration.

Those include a trio of cases challenging the changes to the Title X family planning program to make it harder for abortion providers to receive federal funding.

Additionally, there’s the challenge to the Trump administration’s “public charge” rule, refusing entry to immigrants who are likely to need public assistance.

And the court is scheduled to hear arguments in a challenge to the funding for Trump’s border wall and his administration’s “Remain in Mexico” program requiring immigrants to wait there for their asylum claims to play out in the U.S.

The court in all of these cases will have to decide whether to leave the adverse rulings in place or wipe the slate clean.

The justices are on winter break, and won’t return to the virtual bench until Feb. 22.

The Twitter case is Trump v. Knight First Amendment Institute, U.S., No. 20-197.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com