Presidential Candidate Tulsi Gabbard Sues Google, Using All The Same Debunked Legal Theories Others Have Tried

from the best-of-luck dept

Well, here's an odd one: the Presidential campaign for Tulsi Gabbard is now suing Google claiming, among other things, that the company has "violated her First Amendment rights" by temporarily shutting down her advertising account and also funneling some of her campaign emails to spam in Gmail. This lawsuit is a complete non-starter, and makes use of the same debunked legal theories that others have used against social media companies. First, it argues that closing her Google advertising account was obviously because people at Google didn't want her message getting out after the first Democratic Presidential debates.

On June 28, 2019—at the height of Gabbard’s popularity among Internet searchers in the immediate hours after the debate ended, and in the thick of the critical post-debate period (when television viewers, radio listeners, newspaper readers, and millions of other Americans are discussing and searching for presidential candidates), Google suspended Tulsi’s Google Ads account without warning.

For hours, as millions of Americans searched Google for information about Tulsi, and as Tulsi was trying, through Google, to speak to them, her Google Ads account was arbitrarily and forcibly taken offline. Throughout this period, the Campaign worked frantically to gather more information about the suspension; to get through to someone at Google who could get the Account back online; and to understand and remedy the restraint that had been placed on Tulsi’s speech—at precisely the moment when everyone wanted to hear from her.

In response, the Campaign got opacity and an inconsistent series of answers from Google. First, Google claimed that the Account was suspended because it somehow violated Google’s terms of service. (It didn’t.) Later, Google changed its story. Then it changed its story again. Eventually, after several hours of bizarre and conflicting explanations while the suspension dragged on, Google suddenly reversed course completely and reinstated the Account. To this day, Google has not provided a straight answer—let alone a credible one—as to why Tulsi’s political speech was silenced right precisely when millions of people wanted to hear from her.

But in context, the explanation for Google’s suspension of the Account at exactly the wrong time is no great mystery: Google (or someone at Google) didn’t want Americans to hear Tulsi Gabbard’s speech,so it silenced her. This has happened time and time again across Google platforms. Google controls one of the largest and most important forums for political speech in the entire world, and it regularly silences voices it doesn’t like, and amplifies voices it does.

Of course, if you're at all familiar with how this works -- as we've explained for years now -- you'll know that there's a much more credible reason than someone at Google trying to sabotage Gabbard's campaign: it's that making these kinds of decisions at scale is effectively impossible, and mistakes are made or situations turn up that, at first glance, certainly appear to violate terms of service. This is especially true in political advertising, a part of the social media ecosystem that is under even more scrutiny than other parts, as many people believe that was abused during the 2016 election, and there are various efforts underway to make platforms even more careful about what kind of political advertising they allow. Given that backdrop it's not at all surprising that Gabbard's campaign might get caught in the crossfire.

Hell, we've experience something kind of similar -- in which Google has (on multiple occasions) removed advertising from our site and threatened to close down our account entirely based on its broken ad review system. It happens, and we complain about it -- but never in a million years would I think that Google was purposefully targeting someone by doing that. It's because we recognize that these kinds of moderation decisions are difficult and at scale, even a small percentage of mistakes will end up hitting a lot of people. But that's Google's right. It's Google's platform, after all.

Also, what's particularly odd about this is that the focus of the lawsuit is on Gabbard's campaign losing her advertising account. Anyone doing a Google search for Gabbard was still getting tons of organic search results for Gabbard. In effect, this is Gabbard saying that it's somehow against the law to not accept her money to put her own messages at the top of Google, above the organic ones. Who knew that there was a legal right to skip to the top of all Google results if you've got money to burn? No one. Because there is no such right.

And that's not all. The conspiracy theories go deeper:

And Google’s election manipulation doesn’t stop with its search platform. For example, Google’s email platform Gmail sends communications from Tulsi into people’s Spam folders at a disproportionately high rate. In fact, Gmail appears to classify communications from Tulsi Gabbard as Spam at a rate higher than other similar communications—for example, those from other Democratic presidential candidates. There is no technical explanation for this disparity.

Uh, yeah, there is a "technical explanation for this disparity." (1) Spam filters, like any other filters, don't always work well and often filter "legitimate" mail, (2) lots of people may have marked Gabbard's emails as spam, training the system to treat them as such, or (3) Gabbard's emailing practices may have been more spam-like than other candidates. It's also possible that she's wrong that her emails went to spam more often than other candidates. Either way, there are lots of possible explanations that are significantly more plausible than some nefarious plot in Larry Page's office to take Gabbard out of the running.

Either way, like many of the other troll lawsuits over basic moderation decisions, this one appears to be a lot more performative than serious in any legal sense. First off, it's highly questionable why this is a federal lawsuit as opposed to a state one, since most of the claims are state ones. The federal claims are laughable and should be tossed out pretty quick. Also, the complaint has all sorts of bizarre, laughable conspiracy theory elements to it, including the idea that Google employees backing Obama and Clinton over the last few presidential cycles is clear evidence of their bias in how the search engine operates (it is not). There's a claim that because searching for "SESTA" on Google turns up an EFF site as the top result... that's somehow proof of Google tilting the scales (not mentioned: EFF has a complaint before the FTC about Google, and receives very, very little money from any corporate donor, including Google).

She also claims that "the government" is somehow responsible for "ceding the internet to Google" because the FTC declined to file a complaint against Google in 2012 over unrelated issues, despite some FTC staff believing there was a legitimate case (not enough of them did to support actually filing a case, but Gabbard seems to chalk that up to a conspiracy to give the internet to Google, rather than a lack of evidence and the realization in the FTC that it would likely lose such a case).

Bizarrely, Gabbard's complaint completely rewrites the history of net neutrality in a blatantly false way to support her nonsense legal arguments:

Other disturbing data points about the power wielded by Google and other major tech companies like Facebook have emerged in recent years. In the early 2010s, the FCC rightly considered whether net neutrality regulations, which sought to provide equal access to the Internet by governing Internet Service Providers, should also be extended to apply to Internet content platforms like Google.

However, during the Trump presidency, the FCC has not only declined to extend net neutrality protections to apply to Internet content platforms like Google, it has revoked those regulations that were already existing. See [n the Matter of Restoring Internet Freedom, 33 F.C.C. Rcd. 311 (2018); United States Telecom Ass’nv. FCC, 825 F.3d 674, 729 (D.C. Cir. 2016). Companies like Google have more leeway and ability than ever to bend the Internet to their will.

That... is a bizarre and, at best, misleading reading of net neutrality history (at worst, it's manipulative). No one ever seriously considered "extending" net neutrality rules to Google because (1) the only people who suggested it were AT&T mouthpieces trolling the whole net neutrality process, (2) it's not part of the FCC's mandate to handle regulation of edge service providers, and (3) there is no such thing as "net neutrality" for search engines because their whole business is about providing recommendations, which by definition cannot be "neutral". A "neutral" search engine is one that gives you totally random results. A working search engine is one that gives you "biased" results. Biased in support of relevance to whatever you're looking for.

As for the actual claims in the lawsuit, they're all repeats of failed claims elsewhere. They won't go far. First up, there's a laughable 1st Amendment claim. As everyone knows, Google is not bound by the First Amendment as it is not a government actor. Yet, Gabbard (incredibly weakly) argues that it is:

Google creates, operates, and controls its platform and services, including but not limited to Google Search, Google Ads, and Gmail as a public forum or its functional equivalent by intentionally and openly dedicating its platform for public use and public benefit, inviting the public to utilize Google as a forum for free speech. Google serves as a state actor by performing an exclusively and traditionally public function by regulating free speech within a public forum and helping to run elections. Accordingly, speech cannot be arbitrarily, unreasonably, or discriminatorily excluded, regulated, or restricted on the basis of viewpoint or the identity of the speaker on Google’s platform.

Google’s actions, and the actions of its agents, deprive the Campaign of its constitutional rights. Google has restricted the Campaign’s speech and expressive conduct by adopting and applying subjective, vague, and overbroad criteria (the ‘Subjective Criteria”) that give Google unfettered and unbridled discretion to censor speech for arbitrary, capricious, or nonexistent reasons. The Subjective Criteria fail to convey a sufficiently definite warning to the Campaign (or the public) as to what is prohibited or restricted and, as a result, they allow Google to censor speech at its whim and based on subjective animus towards the speaker and/or her particular political or religious viewpoint.

So, this complaint is basically using the "magic words" legal theory. For someone to be a state actor, they need to be operating a service that is "exclusively and traditionally" run by the government. But beyond saying that Google does this, the complaint makes literally no effort whatsoever to back up that claim. Because it can't. Because it's laughable. I mean, just a few weeks ago, the Supreme Court made it quite clear that the bar to be considered a state actor to be bound by the 1st Amendment is much, much higher. From the Supreme Court's ruling in Manhattan Community Access:

It is not enough that the federal, state, or local government exercised the function in the past, or still does. And it is not enough that the function serves the public good or the public interest in some way. Rather, to qualify as a traditional, exclusive public function within the meaning of our state-action precedents, the government must have traditionally and exclusively performed the function.

The Court has stressed that “very few” functions fall into that category.... Under the Court’s cases, those functions include, for example, running elections and operating a company town.... The Court has ruled that a variety of functions do not fall into that category, including, for example: running sports associations and leagues, administering insurance payments, operating nursing homes, providing special education, representing indigent criminal defendants, resolving private disputes, and supplying electricity.

Gabbard arguing that Google is "running elections" is laughable.

The state claims aren't going to win any fans either. Gabbard -- like every damn troll who sues social media sites -- tries to use California's Unruh act, claiming this is a civil rights violation. So far, each of those has failed, including one that just failed last week when some Russian trolls lost their lawsuit against Facebook. The ruling in that case seems like the thing that Gabbard's lawyers should have read before filing this nonsense nuisance lawsuit:

Courts have rejected the notion that private corporations providing services via the internet are public fora for purposes of the First Amendment. For instance, in Prager Univ. v. Google LLC, this Court rejected the notion that “private social media corporations . . . are state actors that must regulate the content of their websites according to the strictures of the First Amendment” under public forum analysis. 2018 WL 1471939, at *8 (N.D. Cal. Mar. 26, 2018) (emphasis in original). In addition, the Ebeid court rejected the argument that Facebook is a public forum. 2019 WL 2059662, at *6. Moreover, in Buza v. Yahoo!, Inc., the court held that the plaintiff’s assertion that “Yahoo!’s services should be seen as a ‘public forum’ in which the guarantees of the First Amendment apply is not tenable under federal law. As a private actor, Yahoo! has every right to control the content of material on its servers, and appearing on websites that it hosts.” 2011 WL 5041174, at *1 (N.D. Cal. Oct. 24, 2011). Furthermore, in Langdon v. Google, Inc., the court held that “Plaintiff’s analogy of [Google and other] Defendants’ private networks to shopping centers and [plaintiff’s] position that since they are open to the public they become public forums is not supported by case law.” 474 F. Supp. 2d 622, 632 (D. Del. 2007).

At bottom, the United States Supreme Court has held that property does not “lose its private character merely because the public is generally invited to use it for designated purposes.” Lloyd Corp. v. Tanner, 407 U.S. 551, 569 (1972). Thus, simply because Facebook has many users that create or share content, it does not mean that Facebook, a private social media company by Plaintiffs’ own admission in the complaint, becomes a public forum.

Much of the lawsuit is based on a two massive assumptions, neither of which are accurate:

1. That Google is a state actor
2. That Google acted arbitrarily and capriciously in deliberately targeting Gabbard

The entire lawsuit falls apart if even one of those is not accurate, and neither of them are.

Even stranger: the complaint doesn't even seem to recognize that Section 230 of the Communications Decency Act exists. It makes no mention of it, nor attempts to get around it. It just pretends it's not there. Which is kind of strange.

This case is going to get laughed out of court. It's even possible that Google could make an anti-SLAPP argument here and stick the Gabbard campaign with its legal fees.

There's one other element in all of this that should be mentioned, is that even though this seems to disprove the argument that Google is somehow targeting "conservatives" (Gabbard is a Democrat with (mostly) typical Democratic party positions), the same folks on social media who constantly whine about Google censoring conservatives are... cheering on this announcement (and, no I'm not linking), even as it partially disproves a key part of their argument. It does seem notable that part of the lawsuit actually quotes Breitbart and highlights that Breitbart claims that Google "routinely censors conservative viewpoints" (and Breitbart ran multiple articles cheering on this lawsuit).

More recently, Google employees engaged in an internal lobbying campaign to block Breitbart from Google’s advertising program. As part of this internal lobbying campaign, one Google employee pressed that “[t|]here is obviously a moral argument to be made [to blocking Breitbart] as well as a business case.” While it’s not entirely clear what “business case” the Google employee was referring to, it’s important to note that Breitbart has been among Google’s staunchest critics, alleging that the company routinely censors conservative viewpoints.

I'm not sure what anyone thinks this proves. If the argument -- as Breitbart pushes -- is that Google censors conservatives (a statement made repeatedly without proof) this whole lawsuit partially debunks that. If the argument is that Google censors views it doesn't like, well, again there's no actual evidence of that, but either way, are they making the argument that there's some sort of "must carry" rules, which is just utter nonsense. Like this lawsuit.

Filed Under: advertising, content moderation, political advertising, public forum, section 230, state actor, tulsi gabbard
Companies: google

Supreme Court To Hear Case That Could Possibly (But Not Really) Impact Social Media Content Moderation

from the not-going-to-happen dept

This week, the Supreme Court agreed to hear the appeal in a case called Manhattan Community Access Corp. v. Halleck, which some are arguing could have a major impact on whether or not social media sites are barred from moderating content because they're quasi state actors and the 1st Amendment blocks them from moderating content.

Let's be clear on this: while something could go completely wacky and sideways (it is 2018, after all) the chances of this ruling directly impacting social media platforms is very, very, very, very, very, very, very small. That does not mean whatever ruling won't be cited by various plaintiffs to make bizarre arguments -- as we've seen repeatedly with people misinterpreting the Packingham decision. However, given both the facts of this case, and the way the Supreme Court works, I would be shocked if this ruling has any significant impact at all.

This case involves a public access channel, Manhattan Neighborhood Network, where two producers -- DeeDee Halleck and Jesus Melendez -- were apparently fired for making critical comments about the network. They sued, claiming their First Amendment rights were violated, because the city and the network -- as a state actor -- were punishing them based on the content of their speech. The city has been dismissed from the case as it has basically nothing to do with any of this. The question at issue is whether or not this public access channel is a "traditional public forum," in which even a private operator can be judged to be a de facto representative of the government and subject to the limits on the state -- such as the First Amendments ban on suppression of speech.

While the lower court sided with the network, the 2nd Circuit reversed, deciding that this particular public access channel represented a public forum. MNN warns, in its petition for cert that if allowed to stand, this ruling could be used to go after social media sites as public forums.

Courts are routinely faced with the state actor conundrum in new contexts. For example, a New York district court recently had to rule on whether part of President Trump’s Twitter account is a constitutional public forum. See Knight First Amendment Inst. at Columbia Univ. v. Trump, No. 17-cv-5205, 2018 WL 2327290, at *5 (S.D.N.Y. May 23, 2018). There, the court held that a portion of the President’s Twitter account— but not Twitter itself—was a constitutional public forum because the government controlled the content of the tweets sent from the President’s account. Id. at *15. See also Davison v. Plowman, 247 F. Supp. 3d 767, 776 (E.D. Va. 2017) (holding that a municipal county’s Facebook page was a “limited public forum”).

Twitter, YouTube, Facebook, and Instagram are all popular social media venues used for sharing political opinion. And, though they are all privately owned and operated, they are subject to numerous federal and state laws, exist because the government created the Internet, and are utilized by all levels of government. But applying the traditional state actor analysis should still lead to the conclusion that these entities and their employees are not state actors. See, e.g., Prager Univ. v. Google LLC, No. 17- cv-06064, 2018 WL 1471939, at *8 (N.D. Cal. Mar. 26, 2018) (dismissing First Amendment claims against YouTube and Google); Shulman v. Facebook.com, No. 17-cv-00764, 2017 WL 5129885, at *4 (D.N.J. Nov. 6, 2017) (Facebook not constitutional state actor). Under the new test announced by the Majority, it is not so clear that these entities are divorced from state action.

While I'm not against the Supreme Court clarifying that this is not accurate, it would be a pretty amazing stretch for courts to read the 2nd Circuit's ruling in a way that leads to this result. As we discussed in our post about the ruling in the Knight 1st Amendment Center's case against Donald Trump for blocking people on his Twitter feed, there's a big difference in a general "public forum" and a "designated public forum" which is limited to just a specific area that the government itself has created and has control over. Just as that case was limited very specifically to followers of Trump (as opposed to Twitter users in general), the 2nd Circuit's ruling in this case appears pretty clearly limited to the facts of this case, where the government made it clear that it wanted this public access channel to be a general public forum. A key issue here, as laid out in the brief of the fired producers is that the NY government specifically created this particular forum:

New York City created the public access channels: New York State obligates municipalities to compel the creation of public access channels, and New York City fulfilled that obligation in the requirements it has imposed on cable franchisees in New York.

That is, quite clearly, not true of internet social networks. Indeed, the lawyers for the fired producers argued that the network and its lawyers appear to be a bit confused about the difference between a general public forum and a limited designated public forum:

First, as we have already explained, petitioners are wrong to assert that the court of appeals established a per se rule that governs all public access stations. See pp. 13-20, supra. Petitioners’ analysis conflates the “traditional public forum” analysis (which often does establish bright-line rules) with the “designated public forum” doctrine (which does not). Because the decision below is specific to the particular “framework” (Pet. App. 13a) that governs New York City, it has no implications for localities that have made different choices.

Second, petitioners lose sight of the fundamental principle that only the government may designate a non-traditional place as a public forum. That is, for “a place not traditionally open to assembly and debate,” it is a “public forum” only if “a government intended to designate” it as such. Walker, 135 S. Ct. at 2250 (quotation and alteration omitted). See also Arkansas Educ. Television, 523 U.S. at 677 (“Designated public fora * * * are created by purposeful governmental action.”). A place cannot be designated a public forum absent intentional government action.

So, that really seems like it would limit the impact of any such ruling in this case to apply more broadly to the content moderation choices of internet platforms. I have no problem with the Supreme Court taking this case, and hope that they do clarify what counts as a state actor in public forums -- especially in limiting it to true state actors.

But I would be absolutely shocked if the Court really rules in any way in this case that will impact social media platforms, because it's such a stretch to read the lower court ruling that way. My guess is that -- as it often does -- the Supreme Court will seek to rule narrowly and won't even address the issues regarding private social media platforms. One hopes that they will be careful enough not to leave a few stray sentences and arguments that might be spun around by various people to argue it means that internet platforms cannot moderate content at all. But, given the way so many people have been trying to turn the Packingham ruling into something it is not (ditto for the Pruneyard case about malls as public forums -- which is a very limited ruling, but is regularly cited by people who don't understand it). So, it would be nice if the Supreme Court makes a clear ruling that prevents such abusive claims outright, but I'm guessing the ruling will be much more narrow and will have no clear impact on social media platforms, which basically everyone recognizes are not "state actors" and have every right to moderate their own platforms however they would like.

Filed Under: 1st amendment, content moderation, deedee halleck, jesus melendez, manhattan neighborhood network, public access, public forum, social media, supreme court
Companies: manhattan community access

Court Says It's Unconstitutional For Trump To Block People On Twitter, But Doesn't Actually Order Him To Stop

from the does-the-President-care? dept

Just last month, we noted that a court in Kentucky had ruled that the Governor of that state was free to block critics on social media accounts, saying that while people are free to speak, the First Amendment does not mean that the Governor has to listen. As we noted at the time, that ruling did not bode well for a more high profile case that was filed by the Knight First Amendment Center at Columbia University against President Donald Trump under similar circumstances. However, as you may have heard, a federal court in New York has now ruled that Trump's blocking is unconstitutional.

This is, not surprisingly, getting lots of attention, but many people commenting on it are not fully understanding the actual issues in the lawsuit (shocking, I know, that people doing legal analysis on the internet might sometimes not get it right...). As we've noted plenty of times in the past, the First Amendment does not apply to private platforms, and nothing in this ruling means that Twitter is a "public forum" (as some nuttier lawyers are trying to argue in other cases). Instead, the ruling is specific that it is just the commentary in response to Donald Trump that has become a public forum.

Though Twitter is a private (though publicly traded) company that is not government-owned, the President and Scavino nonetheless exercise control over various aspects of the @realDonaldTrump account: they control the content of the tweets that are sent from the account and they hold the ability to prevent, through blocking, other Twitter users, including the individual plaintiffs here, from accessing the @realDonaldTrump timeline (while logged into the blocked account) and from participating in the interactive space associated with the tweets sent by the @realDonaldTrump account... Though Twitter also maintains control over the @realDonaldTrump account (and all other Twitter accounts), we nonetheless conclude that the extent to which the President and Scavino can, and do, exercise control over aspects of the @realDonaldTrump account are sufficient to establish the government-control element as to the content of the tweets sent by the @realDonaldTrump account, the timeline compiling those tweets, and the interactive space associated with each of those tweets. While their control does not extend to the content of a retweet or reply when made -- “[n]o other Twitter user can alter the content of any retweet or reply, either before or after it is posted” and a user “cannot prescreen tweets, replies, likes, or mentions that reference their tweets or accounts,” ... -- it nonetheless extends to controlling who has the power to retweet or reply in the first instance.

Got that? It's an important nuance. Basically, the court is saying that because the President and his assistant "control" the space in which discussion occurs following his Tweets, that makes it a "designated public forum" and then, because it's the President and he is (duh!) a powerful government official, and government actors are not allowed to stifle protected speech, blocking accounts violates the First Amendment rights of those blocked. First, the court notes that that space in response to Trump's tweets is governmental in nature:

The President and Scavino’s control over the @realDonaldTrump account is also governmental. The record establishes (1) that the @realDonaldTrump account is presented as being “registered to Donald J. Trump, ‘45th President of the United States of America, Washington, D.C.,’” ... (2) “that the President’s tweets from @realDonaldTrump . . . are official records that must be preserved under the Presidential Records Act,” ... see 44 U.S.C. § 2202 (directing the retention of “Presidential records”; id. § 2201(2) (defining “Presidential records” as those created “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”); and (3) that the @realDonaldTrump account has been used in the course of the appointment of officers (including cabinet secretaries), the removal of officers, and the conduct of foreign policy, ... -- all of which are squarely executive functions.... That is, the President presents the @realDonaldTrump account as being a presidential account as opposed to a personal account and, more importantly, uses the account to take actions that can be taken only by the President as President. Accordingly, we conclude that the control that the President and Scavino exercise over the account and certain of its features is governmental in nature.

And thus, blocking is unconstitutional under the First Amendment because blocking people based on what they've said is a content-based restriction on speech:

Here, the individual plaintiffs were indisputably blocked as a result of viewpoint discrimination. The record establishes that “[s]hortly after the Individual Plaintiffs posted the tweets . . . in which they criticized the President or his policies, the President blocked each of the Individual Plaintiffs,” ... and defendants do “not contest Plaintiffs’ allegation that the Individual Plaintiffs were blocked from the President’s Twitter account because the Individual Plaintiffs posted tweets that criticized the President or his policies.” ... The continued exclusion of the individual plaintiffs based on viewpoint is, therefore, impermissible under the First Amendment.

The court further finds that using Twitter's mute feature, rather than block, would be Constitutional, because that doesn't implicate the others' right to speak in that public forum (though it does stop Trump from seeing those tweets).

Given these differing consequences of muting and blocking, we find unpersuasive defendants’ contention that a public official’s muting and blocking are equivalent, and equally constitutional, means of choosing not to engage with his constituents. Implicit in this argument is the assumption that a reply to a tweet is directed only at the user who sent the tweet being replied to. Were that so, defendants would be correct in that there is no difference between the inability to send a direct reply (as with blocking) and the inability to have that direct reply heard by the sender of the initial tweet being responded to (as with muting). But this assumption is not supported in the record: a reply is visible to others, ... and may itself be replied to by other users.... The audience for a reply extends more broadly than the sender of the tweet being replied to, and blocking restricts the ability of a blocked user to speak to that audience. While the right to speak and the right to be heard may be functionally identical if the speech is directed at only one listener, they are not when there is more than one.

In sum, we conclude that the blocking of the individual plaintiffs as a result of the political views they have expressed is impermissible under the First Amendment. While we must recognize, and are sensitive to, the President’s personal First Amendment rights, he cannot exercise those rights in a way that infringes the corresponding First Amendment rights of those who have criticized him.

There is one odd bit that is not mentioned in most of the commentary on this ruling. And it's this: the court does not actually order Trump to stop blocking people. It just says that it's unconstitutional. Given the choice between giving the Knight Center injunctive relief (i.e., forcing the defendant to comply) and merely declaratory relief (i.e., telling the plaintiff they are correct), it chose the latter. It notes that there is some question of whether or not the courts can impose injunctive relief on a sitting President, and decides to side-step the question altogether.

While we find entirely unpersuasive the Government’s parade of horribles regarding the judicial interference in executive affairs presented by an injunction directing the President to comply with constitutional restrictions, we nonetheless recognize that “[a]s a matter of comity, courts should normally direct legal process to a lower Executive official even though the effect of the process is to restrain or compel the President.”

It does note that it could award injunctive relief against the guy who helps manage the Twitter account, Dan Scavino, but chooses not to. In effect, the court says that by granting declaratory relief and merely saying that this activity violates the First Amendment, that should be enough to convince Scavino and Trump to stop blocking:

Accordingly, though we conclude that injunctive relief may be awarded in this case -- at minimum, against Scavino -- we decline to do so at this time because declaratory relief is likely to achieve the same purpose. The Supreme Court has directed that we should “assume it is substantially likely that the President and other executive . . . officials would abide by an authoritative interpretation of [a] . . . constitutional provision,”... (“Were this court to issue the requested declaration, we must assume that it is substantially likely that [government officials] . . . would abide by our authoritative determination.”), and there is simply no reason to depart from this assumption at this time.

Given this particular administration, that seems like a mighty big assumption. The White House has, at the very least, already suggested it will appeal this ruling, so the issue of declaratory v. injunctive relief may not really be all that important or get much attention, but it does seem noteworthy that the court seems to say it doesn't need to order the President to do anything since it expects him to respect its ruling. Some people might fight that assumption somewhat laughable.

Meanwhile, this President, who has at multiple times claimed to be a huge First Amendment supporter, has lost a First Amendment case for stomping on the rights of some of the citizens of the country whose government he runs.

Filed Under: blocking, dan scavino, donald trump, first amendment, free speech, muting, public forum, social media
Companies: knight center