The Trump Twitter Declaratory Judgment

Prof. Rick Hasen (Election Law Blog), who is also a remedies expert, writes about the judge's choice to issue a declaratory judgment rather than an injunction.

|The Volokh Conspiracy |

From Rick's post:

Rather than order Trump to comply with an injunction (which is immediately punishable by the power of contempt), the court instead used a declaratory judgment, simply declaring that Trump is violating the law. "Finally, we consider what form of relief should be awarded, as plaintiffs seek both declaratory relief and injunctive relief. While we reject defendants' categorical assertion that injunctive relief cannot ever be awarded against the President, we nonetheless conclude that it is unnecessary to enter that legal thicket at this time. A declaratory judgment should be sufficient, as no government official — including the President — is above the law, and all government officials are presumed to follow the law as has been declared."

Rick adds some more on the subject; I'd also add that, if Trump appeals (as seems likely), and doesn't want to unblock the plaintiffs while the appeal is pending, the absence of an injunction makes it unnecessary for him to ask for a stay of the judgment pending appeal. Had there been an injunction, it would have been immediately binding, and Trump and his staffer Daniel Scavino would have had to comply right away, unless a stay was issued. But a declaratory judgment doesn't have such binding effect. (In theory, if Trump doesn't immediately unblock the plaintiffs, and insists on waiting until the outcome of the appeal, the plaintiffs could go to court to ask the judge to issue an injunction; but that seems unlikely, so long as Trump's not unblocking the plaintiffs seems to stem from a good-faith attempt to get an appellate judgment on the matter.)

NEXT: 4 Tips for Politicians With Social Media Accounts Who Don't Want to Be Sued

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  1. “Trump … would have had to comply right away”

    “had to”?

    How many divisions does this judge have?

    No district court judge can order the President to do something the President must personally do. It is a violation of the separation of powers.

    1. C-

      Not a very good troll.

      1. Not a very good troll.

        Perhaps the same would have to apply to the decision in Mississippi v. Johnson (1866) where the Supreme Court was asked to issue an injunction ordering the President not to carry into effect an act of Congress alleged to be unconstitutional. The court said:

        “The President of the United States cannot be restrained by injunction from carrying into effect an act of Congress alleged to be unconstitutional, nor will a bill having such a purpose be allowed to be filed. ?Suppose the bill filed and the injunction prayed for allowed. If the President refuse obedience, it is needless to observe that the court is without power to enforce its process. ?we are fully satisfied that this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties; and that no such bill ought to be received by us.”

          1. Here’s part of the district court’s analysis of the question.

            However, “a court, before exercising jurisdiction, must
            balance the constitutional weight of the interest to be served
            against the dangers of intrusion on the authority and functions of
            the Executive Branch.” Nixon v. Fitzgerald, 457 U.S. at 754. A
            four-Justice plurality of the Supreme Court has explained that
            while “in general ‘this court has no jurisdiction of a bill to
            enjoin the President in the performance of his official duties,'”
            Mississippi v. Johnson, 71 U.S. (4 Wall) 475, 499 (1866), “left
            open the question whether the President might be subject to a
            judicial injunction requiring the performance of a purely
            ‘ministerial’ duty.” Franklin, 505 U.S. at 802?03 (plurality
            opinion) (quoting Mississippi v. Johnson, 71 U.S. (4 Wall) at 499).
            Franklin’s acknowledgment of the door left open by Mississippi v.
            Johnson is consistent with the balancing approach articulated by
            the Court in Nixon v. Fitzgerald: an injunction directing the
            performance of a ministerial duty represents a minimal “danger[]
            of intrusion on the authority and functions of the Executive
            Branch” as compared to imposition posed by the injunction
            considered in Mississippi v. Johnson.

            1. Somehow I get the impression that the district court was at least a little unnerved by the part of Mississippi v. Johnson that it did not quote:

              Suppose the bill filed and the injunction prayed for allowed. If the President refuse obedience, it is needless to observe that the court is without power to enforce its process.

              Courts, before issuing orders to the President, may find it advisable to wait for a fact pattern in which the public would clearly be indignant if the President disobeyed the order. Orders for the protection of Internet trolls on the President’s personal Twitter account might not be that fact pattern.

              1. That was Scalia’s point in his dissent in US v. Windsor, rebutting Alito’s standing argument.

                1. That was Scalia’s point in his dissent in US v. Windsor, rebutting Alito’s standing argument.

                  Scalia’s said what’s the point of allowing Congress to come into Court to order the President to faithfully implement a statute? If he didn’t faithfully implement the statute then why would he faithfully implement the Court’s decree? Congress would then be left with other ways it has of compelling Executive action, such as a refusal to confirm Presidential appointees and the elimination of funding. Those are the methods it should use in the first place in a confrontation with the President, not by bringing it to the Court. Furthermore it would endlessly drag the judiciary into political disputes and would vastly increase the power of the Court over that originally contemplated.

                  My point is that when the Court does decide to enlarge its authority it would be foolish of it to try to do so by issuing an order to the President that lacks public support, since this will reduce the cost to the President of refusal to comply. In US v. Windsor it enlarged its authority with a decision that not only had considerable public and congressional support but which was also supported by the President (estate taxes paid by same-sex couples). So the risk to it of defiance was minimal.

    2. No district court judge can order the President to do something the President must personally do.

      Sure it can. A court can order anything, much as “can I sue that guy?” or “can that guy sue me?” are among the easier questions a lawyer confronts. Whether the order is enforceable is a different inquiry.

      Want to see Pres. Trump comply with a district court order? Find a district court judge who will order Pres. Trump to have tiny fingers, to be a lying adulterer, or to wear some silly orange thing on his head.

      Happy holiday, everyone!

    3. “Bwah-hah-hah!”

      ? John Sirica’s ghost

  2. Trump is barred from blocking some one on his personal twitter. Seems the judge has expanded 1A to include the right to use someone else’s press.

    Logically the same rule would apply such that EV could not block my responses on Volokh conspiracy?

    1. Multiple Reason posts, including one by Eugene Volokh, has summarized the ruling including factors that show Trump is not merely a private person in this situation (e.g., Eugene Volokh isn’t under the presidential records act or using it to carry out official governmental business).

      1. It included bald assertions, not factors. The fact is no twitter proclamation is official. Just like when Obama went on television to tput ACA it wasn’t an action but public comment about a bill. Twitter does not elicit executive orders, memorandum, or sign bills.

        Based on the logic of the judge about selective commentary, it eoudl make it illegal for Presidents to pick and choose which constituents letters they decided to read at various press events, they’d have to random bag it. The assertion is silly.

        1. The fact is no twitter proclamation is official

          That’s some weak-ass formalism. Based on the actions the tweets have engendered on both the public and private sector, they have official weight.

        2. The government can speak however it pleases, and can distinguish against viewpoints when it speaks. The issue here is not about government speech. It’s about whether the government can viewpoint discriminate against speakers in public forums.

    2. 1A already applies to “someone else’s press” when the government uses it. The 1A doesn’t cease to apply just because the government borrows the space from a private actor.

  3. The Judgment is still binding unless stayed however. The remedy for not complying with a declaratory judgment is unclear to me – I assume it is to get an injunction as the post seems to imply.

    That all said, and particularly if the Judgment is not stayed, Twitter itself would have good cover for just unblocking everyone from Trump’s account? Zero chance that they would do that given this administration’s acts of retaliation against perceived political opponents (e.g., Jeff Bezos), but it would be interesting if someone asked it to do so.

    1. Jon S: I think the whole point of a declaratory judgment is that it isn’t “binding” in the sense that an injunction is binding. It remains out there, declaring the law as the judge understands it to be, and such declarations are often very helpful to litigants. But a litigant remains free to seek a more authoritative declaration by appealing the judgment to a higher court.

      I also doubt that Twitter will want to get involved here, even without the risk of retaliation. What’s the upside to Twitter of getting involved in a dispute like this? And even if it might sometimes public-spiritedly want to make sure that the law is being obeyed, that wouldn’t be much of a reason to intervene while there’s an appeal, in which there is a live dispute about what the law actually requires.

      1. Would this decision not apply to Twitter banning politicians’ Twitter pages? If the President, because of political position, cannot block people commenting on his feed; then how can Twitter block a politician from commenting on their own page?

        1. Because the 1A doesn’t apply to Twitter. Twitter isn’t a governmental actor.

          1. Damn, it seems there is no limit to the idiocy posted by the likes of flame, bob, and Jesse that somehow demands the most obvious answer from reasonable commenters. Flame, if your understanding if 1a law is really this bad, it seems like you are wasting people’s time with posts like this. Do you understand this answer from ntoj? Do you get why your question shows how poorly you understand the law. The least you could do is acknowledge that you’ve learned the first thing about the 1a today to demonstrate that a reply to you isn’t entirely a water of energy. Do you understand the 1a applies to government actors (i.e. the president) but not private actors (i.e. Twitter)?

          2. Damn, it seems there is no limit to the idiocy posted by the likes of flame, bob, and Jesse that somehow demands the most obvious answer from reasonable commenters. Flame, if your understanding if 1a law is really this bad, it seems like you are wasting people’s time with posts like this. Do you understand this answer from ntoj? Do you get why your question shows how poorly you understand the law. The least you could do is acknowledge that you’ve learned the first thing about the 1a today to demonstrate that a reply to you isn’t entirely a water of energy. Do you understand the 1a applies to government actors (i.e. the president) but not private actors (i.e. Twitter)?

    2. Twitter isn’t a party to this case, which is at least a little surprising. It could, I think, have intervened, or have been brought in by either side. The ruling in the case certainly affects a nontrivial portion of its user base comprising public officials and organizations, federal, state, and local, who use Twitter in an official capacity.

  4. I think Trump ought to be a big enough man to voluntarily stop blocking commenters on his Twitter account — which I wish he would accomplish by closing the account entirely. He probably won’t do that, though. I don’t tweet, so I don’t know: Can he close his account to ALL comments? That way he could publish his own thoughts without creating a forum for opposing views. Trump opponents already have most of the MSM to express their views, so they won’t be deprived of a soap box.

    1. Nothing says “big character” than reading peurile insults from anonymous idiots on the internet.

      1. allowing insults is not the same as reading them or dwelling upon them.

        A big enough man wouldn’t be bothered.

        1. A small, small man with tiny fingers and a goober army, however . . . .

      2. As has been explained ad-infinatum — if Trump does not want to receive messages from an individual, he can use Twitter’s mute function.

        And yes, he could also have zero responses and therefore not have any forum whatsoever.

    2. It’s not about him being “big enough” to be willing to see criticisms of his views. It’s about allowing his critics use of his Twitter feed to blast their message to his followers. He has millions of followers, which is a very valuable asset to him and is an asset his critics would like to exploit. He has the crazy notion that he should be able to control access to this asset.

      1. Isn’t the whole issue whether it is his personal asset or his asset only in his role as President?

      2. Would it affect your analysis if, in the future, it turns out a government employee is managing a president’s Twitter account and writing content?

  5. Just a small aside: “Was issued” should be “were issued”. It’s hypothetical, so it takes the subjunctive case.

    1. not “had been”?

      1. You could, but “were” implies a one-time event (“issued”), while “had been” implies a continuous process. That’s super-finicky and either will do, but it definitely wants a case that supports nonfactual events.

    2. The subjunctive is a mood, not a case.

  6. Would Twitter be able to block people from Trump? How much does it matter that it’s Trump doing it vs. that it’s done?

    1. From a 1st Amendment perspective, it matters a lot whether Trump (a government actor) or someone else (a non-government actor) does the blocking. The judge determined that the ‘reply portion’ of Trump’s Twitter feed is a government controlled public forum, since it is controlled by Trump (by virtue of his being able to block people from replying to his Tweets). Since it’s a government controlled public forum, Trump, as a government actor, cannot prevent anyone from exercising his or her 1st Amendment right to comment on the forum.

      But, since the 1st Amendment only applies to the government, a non-government actor COULD block people from participating in the forum without there being a violation of the 1st Amendment. (This assumes the non-government actor is not acting as an agent of the government.) So, if Twitter decided on its own that all this controversy about the comments, pro and con, on Trump’s Tweets were bad for business, Twitter could block any or all replies to his Tweets.

      1. I understand the government/private party distinction, but is there a similar analogue in the non-digital world? Are there designated public forums where private parties, acting on their own (not as a government agent), are allowed to impose content-based restrictions on attendees? Nothing springs to mind, but I haven’t thought about it all that much.

        I haven’t thought the issues all the way through, but it just seems odd to say that a private party can control who has access to a designated public forum.

        1. Since Twitter owns the space, they can do with it as they please. The point about it being a ‘designated public forum’ only applies as a result of Trump’s use of their platform. Essentially, Trump took a tiny portion of Twitter’s space (the area of his Twitter feed) and by using it, it became a designated public forum. That doesn’t mean that Twitter loses any rights to control that space as it once had. It just means that the government/Trump can not limit peoples’ access to that space. Twitter still maintains any and all rights that it would have had if, for example, Trump had lost the election.

          As @DKWalser said above, “since the 1st Amendment only applies to the government, a non-government actor COULD block people from participating in the forum without there being a violation of the 1st Amendment.”

          1. Again, I understand the government/private party distinction. My question was whether there are non-digital examples where private parties are allowed to impose content-based restrictions on who may participate in a designated public forum.

  7. I think the approach, especially for a novel claim by a single district judge, was appropriate here.

    I also don’t know net how different it would be if it was handled somewhat differently, especially given regular practice to hold judgments during appeal. A strong approach can be important when the stakes are particularly high such as immediate harm to physical well being or major fiscal consequences, but this isn’t that.

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