Free Speech

President Trump Apparently Unblocking Twitter Critics, Even While Appealing the Decision

The court decision was just a declaratory judgment, and thus not strictly legally binding.

|The Volokh Conspiracy |


Prof. Rick Hasen (Election Law Blog), who is also a remedies expert, writes:

DOJ has appealed the court ruling that President Trump cannot block people on Twitter. But the real news, as flagged by Cristian Farias, is that the President apparently has unblocked the plaintiffs in the lawsuit in the interim.

This unblocking is not something he has to do, and shows a compliance with the court decision that I wasn't expecting.

Recall that the court in the Twitter case didn't issue a binding injunction, but just a declaratory judgment, asserting what the law is. As Hasen notes, "ordinarily a declaratory judgment is as good as an injunction. It is implicitly coercive, and can be followed up by an injunction if necessary …." But strictly speaking, a declaratory judgment simply announces a defendant's legal obligations, and the defendant may choose not to comply until an injunction is issued, especially if the defendant is appealing the judgment. (If there's an injunction against you and you think you shouldn't have to comply pending an appeal, you have to ask the court for a stay; but for a declaratory judgment, that request is unnecessary, because there's no formal order that needs staying.)

Still, such refusal to comply with a declaratory judgment, even pending appeal, is a somewhat confrontational to the court; it was interesting to see whether President Trump would choose to engage in such a confrontation here—the answer seems to be "no."