Does Twitter's Ban of Trump "Effectively Moot[]" the Cert Petition in Trump v. Knight First Amendment Institute?

Does the Munsingwear doctrine apply to Twitter?

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Currently, the Solicitor General's cert petition is pending in Trump v. Knight First Amendment Institute. This case considers whether President Trump violates the First Amendment when he blocks people on his personal Twitter account, @RealDonaldTrump.  This petition has been floating around for some time. The petition was first distributed for conference on October 30, 2020. The Justices may have been waiting for the inauguration for the case to moot itself out.

On Friday, Twitter permanently banned @RealDonaldTrump. Jameel Jaffer, counsel for the Knight Foundation, said that Twitter's ban "effectively moots" the Solicitor General's cert petition. It seems it is now impossible for Trump to block, or unblock people, because he no longer has an account.

What does the Court do here? Simply deny cert and let the Second Circuit ruling stand? That decision could have sweeping ramifications for other politicians who are not named Donald Trump. Or the Court could GVR under the Munsingwear doctrine, in light of Twitter's policy. Though Trump was at fault for Twitter's change, so I'm not sure Munsingwear is a good fit. A novel application of the shadow docket, for sure.

NEXT: Nat'l Ass'n of Realtors Bans "Harassing Speech" or "Hate Speech" -- Anywhere, Any Time -- by Members

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  1. I'm permanently banning twitter. I already banned Facebook. I had Brave on my phone already, now I'll only use it, not Chrome.

    They're all chicom lackeys anyway.

    1. Oh no. Whatever will they do without *gasp* you?

      1. I imagine that Rosa Parks was asked the same thing back in 1955.

        1. Rosa Park fought the bigots. Clingers are the bigots. Right side of history vs. wrong side of history. Better Americans vs. deplorable, lesser Americans. Culture war victors vs. culture war losers.

          Other than that . . . Great comment!

        2. Rosa Parks was in cahoots with the bus company, which was tired of being subject to that law. It was a set piece test case deliberately engineered.

          Twitter isn't going to cooperate in generating an ideal test case, though they've gotten so ban happy they'll probably produce one anyway.

          1. We’re you this dumb and lousy before your health problems were diagnosed?

          2. Rosa Parks was in cahoots with the bus company, which was tired of being subject to that law. It was a set piece test case deliberately engineered.

            Why are you making shit up?

    2. Check the Washington Post story which says Chrome is basically spyware.

      No one should want to use it, and that has nothing to do with politics. There are plenty of other choices like Brave, and even Firefox has surpassed Chrome IMO. If you can't access WaPo, there are others who discuss this, for example https://www.sciencealert.com/a-tech-expert-says-we-should-stop-using-google-chrome

  2. I've been predicting Twitter would ban Trump (who ironically is the reason for much of their growth) as soon as he was out of power. If he had won it would have been four years from now (assuming a Dem succeeded him) but they feel very confident with complete Dem control of Congress to protect them and I'm guessing the slightly early kick is a not so subtle middle finger. The protest nonsense is just a cover.

    If you ask me using Twitter in the first place is one of the dumbest things he's done. And this is coming from someone who doesn't really bandwagon on most hate Drumpf nonsense. Not only for the pointless tweeting but needlessly enriching an opponent that clearly hated his guts and an overall awful company.

    1. With a remarkably successful passer, you think he should have cut way back on passing in order to go with more running plays even with no very good runners on his team? Why would he have done that, because it was foreseeable that an offense so heavily reliant on passing would start failing sooner or latter?

      Social media plus right-wing targeted media and an evil genius for manipulation of a credulous, angry populace have been key to his
      remarkable political success. You think Trump would have gotten as far as he has, or at least as far as he had before 11/3/20, on the strength of his "charm" without the help of Twitter or roughly equivalent means of reaching his base? Hitler was incredibly successful until he was no longer successful and the game came to an end. None of Trump's undertakings have been altogether and lastingly successful, and to the extent they may have been successful, it was never for very long without the help of illegalities or dubious conduct stopping just short of outright crimes.

      1. "an evil genius for manipulation of a credulous, angry populace"
        ~~Versus~~
        "let them eat cake"

        What you fail to understand is the rage that over half the country is feeling right now in response to what has been a coup. It isn't just the rigged election but the six months of licensed thuggery that preceded it. https://www.youtube.com/watch?v=wpXlHDAEAVQ

        What you saw on Wednesday was a shot across the bow -- this is way more than just about Trump, it always has been, and we're not gonna take it anymore.

        I'm waiting for the national strike -- the people who make America work simply saying "F*ck It" and not showing up to work for a week or two.

        1. You should stop hoping your betters are merciful and start begging.

          1. Kirkland, you have no idea how incendiary the situation is right now.

            You have no idea how much the "thou shalt not" of a book you ridicule is stopping an awful lot of bad things from happening, and you don't want to either.

            1. These are your peeps, Conspirators.

              And the reason legitimate law schools may stop hiring clingers.

              1. AND the reason why said law schools may not be in business much longer.

                1. Harvard and Yale surely are studying how to prepare for the predictions of Volokh Conspiracy fans.

    2. It's hard to express exactly how stupid it was for Republicans to rely on media outlets and platforms run by their ideological enemies. It's like the Axis relying on German munitions firms. Like the US being dependent on China for strategic materials and components. Like hiring Hannibal Lecter as your heart surgeon!

      Twitter and Facebook have been engaging in political censorship for years. It was transparently obvious that they'd eventually get around to censoring Republican politicians, too. I'm surprised they waited as long as they did.

      The night of long knives has arrived, these platforms are mass deplatforming all their enemies. Even having known friends the platforms don't like can get you deplatformed now.

      And it was entirely obvious this day would arrive! That's why the stupid burns.

      1. Been saying it for years. I don't buy the argument from some of his supporters that Twitter overall benefited Trump in 'getting his message out past the MSM barrier' . Maybe before the election. But after he should have dropped them and helped grow an alternative platform. Blahblah he wouldn't have been able to reach...no...he's the freaking President. He has some qualities I admire but I do agree he's stubborn and has too much of an ego. The same goes for other conservatives still clinging on to the hope that they'll somehow be able to make these megacorps see the light and treat them fairly out the kindness of their heart. Reliance on social media, particularly in the case of a group relying on the platform of someone who has designated you as their enemy is an addiction that needs to be kicked. The sooner the better.

      2. Question: Just how far do you think Donald Trump could have gotten without his Twitter account? Through it he dominated the media cycle for 5 years.

        I can't remember a single day where I have gone online to read mainstream media without it not featuring and reacting to a Donald Trump tweet. That is the president of the United States. He does not do press conferences. His media people don't do press conferences, except to deny stuff now and then. He tweets.

        I agree this is stupid and Donald Trump is stupid but he managed to come to power via social media, with Twitter has his main tool.

  3. Wouldn't the principle of _Roe v. Wade_ apply, i.e. that this being a case likely to arise again, SCOTUS will hear it even though it is moot in this specific case, much like Roe was in that Jane Roe's baby had already been born.

    I think the larger issue is what both Apple & Google did to Parlar last night -- and isn't it interesting that they both did it at the same time. I'd like to see an anti-trust attorney's analysis of Parlar's ability to bring a private suit under the Sherman Act because that really is all that is left now.

    1. The problem was Trump mixing personal and business on the same account and blocking people. That combination is not as common as a woman wanting an abortion. Also, neither Trump nor the federal government has much incentive to litigate this as a test case. Trump gains nothing if he wins and the Biden administration is happy to leave a symbolic anti-Trump order in place. A test case involving abortion, on the other hand, brings together plenty of pro- and anti-abortion groups looking to the future.

  4. I think what twitter did was in violation of the Presidential Records Act of 1978. 44 USC Chapter 22.

    Basically, twitter does not own the tweets or account. The public does.

    "(2) The term "Presidential records" means documentary materials, or any reasonably segregable portion thereof, created or received by the President, the President’s immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise or assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President. Such term--

    (A) includes any documentary materials relating to the political activities of the President or members of the President’s staff, but only if such activities relate to or have a direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President; "

    "§ 2202. Ownership of Presidential records

    The United States shall reserve and retain complete ownership, possession, and control of Presidential records; and such records shall be administered in accordance with the provisions of this chapter."

    So, twitter has a big, big problem now.

    1. Now this is precisely the level of legal analysis we have come to expect from movement conservative blogs.

      DId you forget to credit Josh Blackman as co-author?

      1. Yeah he should just be pointing about betters and clingers and stuff like that. Those posts are incredibly informative.

    2. No, if Trump had won the election they'd have a big, big problem now. That's why they waited until it was clear Trump's challenges were dead.

      What they have now is a big, big high five coming from the incoming administration.

      1. How will this make conservatives feel?

        Wait. . . I want to grab a nice beer before you guys answer that one.

      2. No, if Trump had won the election they’d have a big, big problem now. That’s why they waited until it was clear Trump’s challenges were dead.

        It was clear to intelligent people that Trump's challenges were dead from the moment Biden was declared the winner of states with sufficient electoral college votes, which was somewhere around November 7. The only thing that wasn't clear was whether he could stage a successful coup.

    3. "The United States shall reserve and retain complete ownership, possession, and control of Presidential records;"

      Wow....

      "complete ownership" would mean copyright and this would be an exception to the DMCA. And as (a) "retain" makes this a nonassignable right and (b) Trump didn't have it in the first place, any clause in Twitter's AUP would be irrelevant.

      This could get interesting...

      1. This doesn't have anything to do with the DMCA. It would not mean copyright, because copyright doesn't exist in works created by the federal government. Retain doesn't make anything a non-assignable right, and the government can only "retain" something it already has.

        1. Yes, but other than that . . .

    4. I'd bet tweets are never truly deleted but could be wrong. Do you think the law requires the president's to be maintained in an active twitter account, or is an accessible archive adequate?

      1. "Trump sent a series of tweets from the official @POTUS account in an attempt to circumvent his ban, accusing the company of stifling free speech. But Twitter soon deleted the posts, which were captured in screenshots."

        That would be Twitter's theft/destruction of government property, would it not?

        See: https://www.msn.com/en-us/news/politics/what-president-trump-has-said-about-his-twitter-account-ban/ar-BB1cBAog

        1. Surprisingly, you're wrong.

          1. Why?

            The United States shall reserve and retain complete ownership, possession, and control of Presidential records; and such records shall be administered in accordance with the provisions of this chapter.”

            If someone shredded paper Presidential records, that'd be illegal, wouldn't it? How is electronically shredding them any different?
            The "possession" is an issue, but that was illegal already.

            As an aside, is this law why Nixon didn't simply burn the tapes?

            1. The fact that you ask such questions resoundingly answers the important question of whether you're an idiot or not.

              It is not a private entity's responsibility to maintain Presidential Records. Note that your own quote states this in plain language.

              The record would be the content of the tweet. Thus when he sends it, the content should be documented either electronically by the US Government, or transcribed, or in some other manner preserved. In no way, shape, or form does that responsibility fall to anyone outside of the US Government.

              The Government does not get to take ownership of private property whenever they use a private business to disseminate information.

              "POTUS sent a message via twitter, so now we own Twitter's datacenter!"
              "POTUS made a video statement we put on Youtube, so now we own Youtube's datacenter!"
              blah...blah.... No.

            2. If someone shredded paper Presidential records, that’d be illegal, wouldn’t it?

              That depends who the someone is and what the "records" consisted of. If the "records" consisted of someone else's property, then no. The PRA does not confiscate private property.

      1. "Trump can't delete his tweets, it's bad mmkay?"

        "Twitter can ban and delete Trump because he's bad, mmkay?"

    5. My understanding from prior press coverage is there is a group within the government responsible for making sure Trump's tweets are preserved regardless of whether he or anybody else deletes them from Twitter. They aren't gone. I bet they aren't gone from Twitter's servers yet either. They are merely hidden from public view.

  5. Vacate the lower court decision, as Twitter has made itself the appropriate defendant in the case.

  6. "Though Trump was at fault for Twitter's change,"

    Hey Torquemada, waddya' say.. the Inquisition is here and it's here to stay!

  7. How, exactly was President Trump to blame for Twitter's act to ban him? He NEVER advocated violence.
    Please show any evidence of examples you assert did so.

    1. You haven't been paying attention. He has been encouraging his mob for years.

      He doesn't have to say "BRING ME PELOSI's HEAD." Instead he tells the extremists how he loves them and how special they are. He has inflamed their rage for years. "Lock Her Up" (all the way back to 2016) "Where's the Birth Certificate" (before that) "Lying Media/Fake News" (continuously). The grievance feeding on misinformation never stopped even for a day.

      The question is not whether Twitter was correct to ban him, the question is why they didn't do it years ago.

      1. No, the problem is that we HAVE been paying attention, instead of watching the pictures in our heads. Yeah, he really DOES need to say, "Bring me Pelosi's head" to be advocating violence.

        Meanwhile guess who still is in good graces with Twitter? Supreme Leader Ayatollah Ali Khamenei, well known international advocate of genocide.

        Inferred 'advocacy of violence' gets the President of the USA banned, explicit advocacy of genocide is just peachy with Twitter.

        1. No, the problem is that we HAVE been paying attention, instead of watching the pictures in our heads. Yeah, he really DOES need to say, “Bring me Pelosi’s head” to be advocating violence.

          I think you're just stupid here, rather than lying.

          No. "Nice place you've got here; shame if anything were to happen to it" is a threat. He does not need to say, "I am going to burn down your business if you don't pay protection money."

    2. P.S. In the short period before the DC riots, Trump used the word "fight" in Tweets at least 20 times.

      https://www.vox.com/22220746/trump-speech-incite-capitol-riot?ICID=ref_fark

      1. "Fight" does not mean violence -- I've seen people talk of "fighting Trump" more times than I care to think of.

      2. So every political candidate ever is violent then.

    3. This is my question. I want Blackman to explain this assertion.

  8. Here’s an article idea for you guys:

    Do Twitter bans of Californians create a liability for political discrimination under the Unruh Civil Rights Act?

  9. "After close review of recent Tweets from the @realDonaldTrump
    account and the context around them we have permanently suspended the account due to the risk of further incitement of violence."

    Is that grounds for a defamation suit?

    1. The answer to this, and most of the questions you ask:

      No.

  10. Look, I know that Twitter's not the Government, so it's not constrained by the 1A. But many of us -- Left, Moderate, Right, and Other -- have often seen the principles that underly the 1A as the basis for a broader support of "free speech". Sure, we understand that the Atheists Society doesn't have to provide a platform for the Baptists, but if a private entity that purports to be open to the public bans someone for the opinions he/she expresses, we can rightfully say: Show us why that's not a violation of the principles of free speech. Twitter banned Trump's video that called on the rioters in the Capitol to stop what they were doing, pull out, and go home. Why did they ban it? Because Trump also said he agreed with their motives, that they were concerned because the election had been stolen. Yet if you wanted to get those people to pull out and go home, no matter what you thought really was the case in the election, wasn't that the right thing to say? Would it have worked better for him to say, Sorry guys but the election was legitimate and you lost? Go home. Every mainstream media outlet was saying that, and it wasn't working.
    Saying "the election was stolen" is an opinion; saying the election was legitimate and Biden won is an opinion. Saying that some opinions are right and other opinions are wrong is free speech. Saying some opinions are permissible and other opinions are impermissible is . . . NOT free speech.

  11. Josh - "not sure Munsingwear is a good fit?"

    I saw what you did there, even if nobody else did (yourself included).

  12. Why does Blackman assert that "Trump was at fault for Twitter's change"?

    1. Well, he rather blatantly wasn't a Democrat, are you arguing that wasn't under his control?

  13. Whatever happens, we will be all out here to see how it turns out. What I find absurd is the fact that people are dying in the world and depression is eating everyone but what we talk about is politics.

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  14. Maybe a Bancorp affirmance, if both parties have effectively mooted the case together?

  15. Would the case not have become moot on January 21 in any event?

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