Knight First Amendment Institute at Columbia University, et al. v. Donald J. Trump, et al., No. 17 Civ. 5205 (NRB) (May 23, 2018).
The United States District Court for the Southern District of New York required seventy five pages with which to examine the nature of Twitter, Tweets, and Retweets, the nature of the President’s actions in creating and posting to a Twitter account, and the constitutional limits on inhibiting speech in a virtual public forum.
In short: a Twitter account operated by the President is a public forum in which protected political speech occurs. Precluding critical views is unconstitutional viewpoint discrimination.
No doubt the seventy five page exegesis was crafted with an eye toward further review. Whether this will occur is not known, but what is of note is not entirely the federal district court’s primary determination, which has the virtue of appealing to a commonsensical “come one, come all” view of public debate in the new millennium, but rather some of the court’s supporting determinations are somewhat intriguing.
The trial court declined to opine concerning whether the judiciary could enjoin the executive, a matter wisely sidestepped as, the court offered, it is not necessary in declaratory proceedings. More interesting, however, is the court’s view that even if the President could not be enjoined, his staff could, which some may perceive to be something of a topsy-turvy view of agency. In addition, the court noted that it had at hand recourse to the All Writs Act. With the person considered to be suitable for induction before the court, and thus subject directly to the court’s orders, it is not easy to apprehend why the All Writs Act would be needed.
Most beguiling is the notion of “readership standing” found to support the claims of the Knight Institute. The outer limits of such a concept of standing, envisioning injury occasioned by not being able to read a Twitter poster as often or as clearly as wished, remain for exploration, but this does seem to be, at best, quite an expansive view of what sort of interest or injury may support standing. In this case, however, the Knight Institution’s claim may be worthy of merit by virtue of some semblance of concreteness, there having been alleged an existing relationship with one of the banished readers. However, it is not inconceivable that future cases will test this notion: time will tell.