The Volokh Conspiracy

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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.


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."

NEXT: First Amendment and Off-the-Job Political Speech Criticizing Black Lives Matter Movement and "Thugs"

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  1. And this is the guy liberals keep calling a fascist dictator, and a threat to the rule of law. Because he complains about rulings against him while complying with them.

    1. Worst Hitler ever!

    2. Wouldn't it be better if there weren't rulings against him?

      1. Litigation challenging aspects of government actions, including Constitutional challenges, have been going on since long before Trump. There were plenty under Bush and Obama.

      2. There wouldn't be if the judiciary wasn't filled with judges appointed by KKKlinton and Obongo.

      3. "Wouldn't it be better if there weren't rulings against him?"

        Wouldn't it be better if people did not bring trivial litigation?

    3. Yesterday it was a travesty of tyrannical liberal persecution that there is anyone is sabotaging the Presidency by making this legal argument.

      But now it is an example of Trump's generous and democratic nature that he cedes to these tyrannical demands.

      I just hope this doesn't moot the issue - I'm interested in how it will/would turn out!

      1. It shouldn't moot it. He can always block them again.

      2. Actually, after having the nature of the ruling explained the other day, while I'm not convinced it's right, I don't think it's crazy.

  2. Well that's no fun.

  3. He must've been told he'd probably lose and is avoiding a second round of loser from CNN.

  4. He should have the balls to tell the courts to go fuck themselves and not do it. Stop giving the courts more power than they warrant or deserve.

    1. Agreed. America is long overdue for an Operation Condor style cleansing. Many of the "elite," which includes not only judges but university presidents, heads of the media and other leftist agitators need to be told that they will cut the crap or be kidnapped by the military in the middle of the night and thrown into the ocean. We need a despot at this point.

      1. I like Pinochet helicopter memes as much as the next guy, but unless they are coming for the guns or forcing people to bake the damn cake, it's not time for such measures.

        1. If nothing else, ARWP has provided the utility of warming my heart at how many on here I lock horns with are not kill-crazy.

      2. No, we do not need a despot. But we also do not need to accept asinine rulings as legitimate.

        Trump didn't ban a soul. Twitter did. He used their software, but Trump is unable to "block" anybody.

        1. Tell me then, what is the alternative? You've seen how brazen the left has gotten in imposing their Marxist visions. What will make them stop other than force?

          1. So far, of the four boxes that defend freedom, we have only had had to use the ballot box and the jury box and the soap box, we don't need the cartridge box (yet).

            I hear ya, it's time to refresh the tree of liberty and blah, blah, blah, but I honestly feel the apolitical mopes in the mushy middle would react with horror and it would be counter-productive to say the least.

            1. Yeah, I agree with you that it's not time yet. But the left is ramping up its cultural and economic war. It's only a matter of time before the cartridge box will be necessary.

              1. You shouldn't should excited for it.

                1. Why not?

          2. Insisting on receiving Donald Trump's tweets is a Marxist vision?

            Who knew?!

          3. Trump can simply defy the courts to force him to do it.

            Do not pretend that the courts have more power than they do.

            Shooting folks isn't a viable strategy. Self defense is justified. Shooting people just because is not.

            1. I guess that depends on whether you think an effective defense sometimes requires offense.

        2. Trump didn't ban a soul. Twitter did. He used their software, but Trump is unable to "block" anybody.

          The gun control crowd loves your "blame the tool" attitude.

          1. Well played sir.

          2. The gun control crowd loves your "blame the tool" attitude.

            Does Trump own Twitter?
            Does he have any say, at all, in how it is run?

            No on both.

            He utilizes their service. He does not design it. He does not code it.

            1. It's his account. They have settings. Someone clicked the "block" button, and it wasn't Twitter's ghostly finger.

        3. "Trump is unable to "block" anybody."

          But he can unblock them?

          1. Twitter's software permits it. If it did not, Trump couldn't do anything.

            1. Ah, you just admitted it: "Trump couldn't do anything" meaning Trump did do something, ie, used the tool.

    2. +1000

      A trivial issue is the perfect vehicle to defy our blacked robed masters.

      1. And wait until it's not trivial anymore? Better to nip it in the bud now.

      2. I should say that I am agreeing with damikesc, not the Operation Condor comment.

        Tone it down a bit ARWP

        1. I recognize my views are radical right now, but they will be seen as necessary within a decade or two.

          1. Really? Things are actually getting better. Now, that doesn't mean it's time to put one's feet up, but there's been real progress....we're headed towards the cliff now at 30 mph not 90 mph.

            1. We're still making 1 million new citizens (nearly all of which will become Democrat Party voters) each year.

              1. I just spend a while perusing Census data to review that claim. The latest data they have, for naturalized immigrants (the voters are the ones that really matter) for 2016 is 753,060.

                I'm not disagreeing that immigration should be lowered (I think to give the labor market a break and to allow for more cultural assimilation) but the horde isn't overwhelming demographically because current Democrat voters aren't having kids because fertility rates continue to decline. Remember the coming Democrat Party permanent majority while the old white Republican males died off? Looks like it isn't gonna happen.

                Now, if they get amnesty, the GOP dies as a national party for a generation, it would only maintain it's hold on the House and maybe at that.

              2. Maybe if you didn't want to kill them they'd vote for the fascists you prefer.

            2. Mad - ARWP wants not only to purge liberals, but to ban women and non-property holders from voting, as well as end immigration from everyone who isn't a white Christian European.

              He's pretty broken. At first I thought he tarred the conservatives on here by association, but I'm coming to see he instead elevates by comparison.

              1. Sarcastro, America worked before. Why did it need to be changed?

                1. Because the Gipper proposed, and a majority of Congress voted for, a change?

                  I mean, the power to change is implicit in popular sovereignty.

                2. Wait wait...let me answer for him....I can predict it at this point..

                  *mad_kalak channeling sarcasto* - "Worked for whom? Certainly not blacks and various minorities."

              2. Sarcasto, I wouldn't call him more broken, just perhaps in-artfully blunt (and I write that like he's not able to read this, ha!).

                As for women voting, the barn door is open and the horses ain't coming back, but it's a well known fact that women (for various psychological reasons) tend to favor a nanny state, especially single women, who sometimes view the government as a replacement for a father/husband. So if you're conservative, the proper solution is to make "free contraceptives" and the like be a competing priority with a program that helps everyone, not to remove the vote from women. So he ID's a problem, but in my opinion has the wrong solution. Female conservatives are necessary to win elections and wouldn't give up the vote anyway.

                And while property owning is a stupid qualification for voting (imagine you lived in San Diego where values are astronomical) it is within the Overton Window to ask for some sort of "skin in the game" as a voting requirement. So far, the makers still outnumber the takers, and also the natural human inclination to be pissed off at being taken advantage of, have at least slowed the spread of socialism, but what do you define as the right requirement? So again, he rightly sees a problem, but his solution is wrong.

                1. As for women voting, the barn door is open and the horses ain't coming back,

                  Always a great moment when a stale-thinking, left-behind bigot has a flicker of understanding . . .

                  Speaking of women, what happened to the Conspiracy's most recent token female? I'm a traditionalist on this one -- the Conspiracy is at its best when it embraces its all-male, all-white ideal and old-timey, partisan purity -- but it appeared the Conspirators had reached for the fig leaf again.

                  1. Rev, let's hope you are as accommodating when Trump wins re-election, eh?

                    Where is Gail? Perhaps your misogynistic trolling drove her away you pig! 😉
                    More likely, like everything else in life, the newness wore off. Reaching the huge audience that this blog reaches must have been a rush at first, most bloggers have to write and build up their sites for years with cross posting on established sites to get any sort of audience, and she had it dropped in her lap. I thought she was good, but not that good that she was worthy of having that happen though.

                    Anyway, the 19th Amendment was over a hundred years ago, it's time to get over it by now and move on with the new normal. What's funny, though, is all the stuff that the anti women voting types said would happen, did indeed happen.

                    1. Rev, let's hope you are as accommodating when Trump wins re-election, eh?

                      I believe America is strong enough to withstand two terms of Trump (although what that will say about the electorate would be depressing).

                      We have encountered successive waves of ignorance and intolerance -- often related to immigration, religion, or skin color -- throughout American history. Italians, Asians, blacks, Jews, eastern Europeans, Muslims, Hispanics, gays, the Irish, women, Catholics, and others have been targets. But backwardness and intolerance have been uniformly bad bets in America over all but the shorter terms, and this latest batch of bigots seems nothing special, its reliance on the charms and insights of Donald Trump notwithstanding.

                      The disaffected, stale-thinking goobers who gave us Trump have never stuck with or accomplished much of anything in life, and I see no reason to expect them to change that pattern now. They'll go back to muttering inconsequentially and bitterly at the sidelines of society and in the backwaters of America, while progress continues against their wishes and efforts.

                    2. They will go back to their guns and religion, their street pills and cheap sixers, their militia meetings and Republican committees. They will continue to stick with declining towns and dying industries against all evidence. And they will continue to blame others -- immigrants, blacks, educated women, gays, atheists, Muslims, professors, bankers, journalists, whomever is handy -- for their self-inflicted problems and dysfunctional lives because they lack the character for accountability.

                      People should vote and act as they wish. I believe America will continue to progress and improve. May the better ideas win and America's greatness continue to develop, albeit with the occasional stumble.

                    3. *slow clap*

                      See that, that right there, that posted above this comment....that's why Trump won.

                      As for you're grand narrative, let's just say it's lacking some details.

                    4. *your

                    5. Trump won because of vestigial bigotry and because America has plenty of disaffected losers.

                      His fans are the ideological heirs of the jerks who lost on treatment of women, lost on treatment on Italians and the Irish, lost on treatment of gays, lost on treatment of atheists and agnostics, lost on treatment of blacks, lost on treatment of Catholics, lost on science vs. superstition, lost on treatment of the poor, lost on treatment of Jews, and in general have been America's stale-thinking, selfish, intolerant losers.

                      This was among the last gasps of losers who can't stand all of this damned progress, science, education, tolerance, and modernity -- a middle finger to their betters, the winners who have built a great America.

                    6. Oh, I fully agree that none of what I propose is possible through the democratic process. It'll only be possible after a full scale societal collapse and rebuild.

                      "Anyway, the 19th Amendment was over a hundred years ago, it's time to get over it by now and move on with the new normal. What's funny, though, is all the stuff that the anti women voting types said would happen, did indeed happen."

                      And all of the horribles that Kennedy promised wouldn't happen regarding the 1965 Immigration and Nationality Act did in fact happen.

                2. Asking how how a group votes in determining who gets the right to vote is missing the point.

                  1. Not really. The modern welfare state is an objective evil, and will eventually cause any society to collapse. Trying to prevent people who will vote for it from voting is not missing the point at all.

                    1. Given Ted Kennedy's outstanding record of honesty in all his dealings, both personal and political, I suspect knew what he was doing with the 1965 Immigration Act and just lied about it.

                      "objective evil" - How would you define that?

                    2. Anything that purports to undo successful Western tradition is evil in my book. I concede the specifics will not always be easy to define.

                  2. I wish people did not think so tribal-like, but they do, and because they do, asking how a group votes is a legitimate exercise if we are extending the franchise.

                    1. Or contracting the franchise, eh?

                    2. I wish people did not think so tribal-like, but they do, and because they do, asking how a group votes is a legitimate exercise if we are extending the franchise.

                      Plagiarized from an application for a poll-tester's position in 1950s Alabama?

                      Or just a loose paraphrase of something Kris Kobach said at a Federalist Society cocktail party during the 1990s?

  5. "Recall that the court in the Twitter case didn't issue a binding injunction, but just a declaratory judgment,"
    "Still, such refusal to comply with a declaratory judgment, even pending appeal, is a somewhat confrontational to the court;"

    This may be a dumb question, but did the court actually issue the judgement? I would have thought that the court would wait until the appeals were exhausted.

    1. That's actually a very good question. You can't appeal until judgment is entered. The judgment is immediately effective. The party appealing can ask the trial court to stay the judgment during appeal, and if the trial court denies the motion, the party appealing an them ask the court of appeals to stay the judgment during appeal.

      I do have do differ a bit with the author's assessment of the effect of a declaratory judgment, though. Declaratory judgments are binding without a separate injunction (at least in federal court under section 2201). If they were not, they would be advisory opinions, which federal courts have no authority to issue under Article III of the Constitution. By "binding," I mean that at a minimum the ruling is res judicata in other legal proceedings. Also, depending on the context, parties in the lawsuit can be held in contempt for acting contrary to a declaratory judgment without any separate injunction being entered, although a specific injunction could also be entered (under section 2202). And there is a lot of debate over whether a federal district court's order can be binding nationwide in any situation. Another district court could always rule contrary to the first one. So there are a lot of issues here.

      1. Thanks. Perhaps the judgement was not stayed, in which case it would be binding as least as far as the norm of federal officials following the law as declared by the courts, without an injunction. Not that Trump cares about norms, but still...

      2. He didn't say it wasn't binding, he said it wasn't a binding injunction.

        Declaratory judgments are not advisory opinions because they resolve cases and controversies, as opposed to abstract or hypothetical questions.

      3. Eddie,
        The judgment was likely not effective immediately. Under Rule 62, a judgment isn't enforceable for 14 days after entry. There is an exception for injunctive relief, but the court explicitly stated it wasn't granting injunctive relief.

  6. Strategically speaking, if you predict that unblocking everyone will lead to a bunch of bad behavior from those users, it makes sense to unblock them so that the appellate court can see that behavior.

    1. Yea, President Trump's superpower is getting his opponents to beclown themselves.

      1. I don't think so. I ascribe this development to Pres. Trump's recognition that he needed to get started without delay because of the time it takes tiny fingers to get the job done.

    2. The "abusiveness" of the commenters should in no way effect the outcome of the decision.

  7. I would have thought that just as a goodwill gesture, Twitter would have offered to mass-convert all his blocks to mutes in one shot.

    Too bad for whoever has to hunt-and-peck manually ;-(

  8. Prof. V, I agree with your analysis in the text of this post regarding the differences between an injunction and a declaratory judgment.

    But your sub-title for this post is a dramatic overstatement, and, I submit, flatly wrong: A declaratory judgment is binding as a declaration of rights between two litigants. It can indeed be appealed, and during that process, no supersedeas bond need be posted, since no money has been awarded in the judgment, and no stay is needed, because the declaration of rights isn't self-executing.

    But if Trump acts in ways that are contrary to the declaration of rights in the court's opinion ? if Trump does, in other words, what the district judge gave him the benefit of the doubt not to do ? and the court decides to reconsider her refusal to consider injunctive relief based on that non-compliance, Trump won't be free to relitigate the merits. He's bound by the declaration, which in turn may become the determinant of the "probability of success on the merits" prong of a preliminary injunction balancing test.

  9. Since this was his PERSONAL twitter account why should he not be able to block someone just as anybody can do on their account? It now has opened up the possibility that you will no longer have control of your account other than to close it.

  10. Righty radio has been replete with anecdotal reports of liberal institutions (many taxpayer funded) that block their twitter accounts to people suspected of having conservative views. Will the courts now deal with these outrageous outbreaks of tyranny?

  11. Haha, I know its not absolutely forbidden by precedent, but Trump should just constantly tweet bible verses and declarations that Jesus Christ is the one true god at these folks that he previously blocked.

    How long until a judge with TDS engages in prior restraint there under the establishment clause, and then Trump can sue for a taking of his previously private twitter account? A social media constitutional hat trick!

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