The U.S. District Court for the Southern District of New York issued a historic, but thoroughly modern, Memorandum and Order May 23, 2018 deciding the First Amendment prevents President Trump from “blocking” Twitter followers who express disagreement with his opinions. See Knight First Amendment Inst. at Columbia Univ. v. Trump, Case No. 1:17-cv-05205 (S.D.N.Y. May 23, 2018) (the “Decision”). But, the Court did not issue an injunction to effectuate the declaratory relief requested, or even substantively address the issue of such injunctive relief. The court rejected, without analysis, “the defendants’ categorical assertion that injunctive relief cannot ever be awarded against the President.” Decision, p. 2. The Court essentially said, he’s a big boy, he’ll know what to do:

“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.”

Ostensibly for those who have been living under a rock, the Court presented a very thorough recitation of what Twitter is, how it works, what constitutes a “tweet,” and how tweets can be retweeted (which both my spell check and I thought was hyphenated). Decision, pp. 3 – 6. Importantly, the Court discussed the two ways a Twitter user can limit interaction with other users, by “blocking” or “muting” another account. Blocking a Twitter user essentially prevents the blocked user with any interaction with the blocking user’s account. The blocked user cannot see the blocking user’s Tweets, even on the Twitter webpage, and thus cannot respond to the blocking user. Muting, is different from blocking as it removes an account from the user’s timeline, but the muted user can still see all the muting user’s Tweets and only the muting user will not see replies or mentions by the muted user.

President Trump started his @realDonaldTrump Twitter account in 2009 and used the account for a variety of business and pop culture comments and criticisms. The account gained widespread attention with international followers able to see virtually anything that was on Mr. Trump’s mind. Decision, p. 9. After his inauguration, the account was registered to “Donald J. Trump, ‘45th President of the United States of America, Washington, D.C.’.” Id. The President then began to use the account “often multiple times a day, to announce, describe, and defend his policies; to promote his Administration’s legislative agenda; to announce official decisions; to engage with foreign political leaders; to publicize state visits; (and) to challenge media organizations whose coverage of his Administration he believes to be unfair.” Decision, p. 10. His tweets generate tremendous activity on the platform and “are each replied to tens of thousands of times.” Decision, p. 12.

The individual Plaintiffs are a group of Twitter users with two common threads: (1) “each tweeted a message critical of the President or his policies in reply to a tweet from the @realDonaldTrump account;” and, each “had his or her account blocked shortly thereafter and each account remains blocked.” Id. The Knight Institute assisted the individual Plaintiffs by initiating the litigation seeking declaratory judgment and injunctive relief. The Decision came on cross-motions for summary judgment on whether blocking the individual plaintiffs violated their First Amendment rights to freedom of speech. The Decision includes a scholarly and lengthy discussion of the standing of the Plaintiffs, the claimed injury involved, and how judicial intervention can redress their injury. Decision, pp. 16 – 36.

The First Amendment issue turned on whether the “space” where the speech is to occur can be considered a “public forum” to which the government cannot restrict the Plaintiffs’ access. To qualify as such, “the space in question must be owned or controlled by the government.” Decision, p. 41. The “space” does not need to be a physical situs in a spatial or geographic sense. Here, the Court found that even though Twitter is a private, publicly traded company that is not owned by the government, the President (and his Twitter-assigned staff) “exercise control over various aspects of the @realDonaldTrump account” that the government control prong of the forum test was met. Decision, pp. 42 – 45. Although Twitter also maintains some control over the @realDonaldTrump account, the President controls the content of the messaging, which unauthorized, non-governmental officials cannot alter, and the interaction within the space by “blocking” dissident users. Decision, p. 43. It was also noteworthy that (1) the account was registered to Donald J. Trump, ‘45th President of the United States of America, Washington, D.C., in that capacity, (2) the tweets constitute “presidential records” that must be preserved by federal law, and (3) the @realDonaldTrump account was used to announce the appointment of federal officers. Accordingly, because the @realDonaldTrump account is a public forum, and blocking the Plaintiff-users stifles their ability to express their viewpoint, the Court declared that the Defendants’ blocking of the accounts violates their First Amendment rights.

The Court then turned its attention to the appropriate remedy. Defendants contended that any injunctive form of relief would be an unconstitutional interference with separation of powers. The Court rejected this broad view citing several instances where sitting presidents have been subject to judicial process in appropriate circumstances. Indeed, the Court found that “the intrusion on executive prerogative presented by an injunction directing the unblocking of the individual plaintiffs would be minimal” and a simple ministerial task. Decision, p. 70. But, the Court declined to issue any injunctive relief whatsoever – even against the Twitter-assigned staff – because its “declaratory relief is likely to achieve the same purpose.” Decision, p. 73. The Court simply expects that the Trump Administration will follow the law as she has declared it in the Decision. This may well be true as the sassy swimsuit model turned game show host, Chrissy Teigen – whom President Trump blocked last year after she tweeted, “no one likes you” – allegedly posted May 23, 2018 “well well well we meet again @realDonaldTrump.”

The Court, however, did not need to even enter the thicket of injunctive relief against the Executive Branch to accomplish affirmative relief. The case law is legion that a declaratory judgment may always be accompanied by some form of injunctive relief to effectuate the declaration. Such an injunction can be mandatory (commanding an act) or prohibitory (preventing an act from occurring). The Court could have simply enjoined “all persons in active concert with the @realDonaldTrump account” to mandate restoration of any blocked accounts and prohibit future blocking so long as this internet “space” is government controlled. Formally serving notice of this seemingly existential injunction on executive officers of Twitter would require them to take appropriate action without imposing a task upon the President. But, Twitter was not a party to the lawsuit, how can this be? Injunction law operates affirmatively, but much like the Court’s hopeful analysis that no one is above the law so she expects them to comply. Anyone with actual notice of an enjoined act who fails to govern their own conduct accordingly, would be subject to the Court’s powers of contempt. Twitter beware, but you got off this time!