Monday, April 5, 2021

Trump Twitter Case Dismissed as Moot—But That's Not the Interesting Part

Today, the U.S. Supreme Court dismissed the case brought against Donald Trump for blocking people on Twitter with whom he disagreed. The decision was not unexpected. After all, (1) he is no longer president and (2) he had already been permanently barred from Twitter.

Although there was no written opinion accompanying the dismissal, Justice Thomas wrote a 12-page concurring opinion. Thomas agreed that the case should be dismissed as moot but used the opportunity to talk about what may become an issue in the future—to what extent a private company such a Twitter should be allowed to operate outside of First Amendment safeguards.

The main subject of the opinion is not what caught my eye. Rather, it was Thomas’s comment about how Trump had used his Twitter account during his presidency.

Mr. Trump often used the account to speak in his official capacity. And, as a governmental official, he chose to make the comment threads on his account publicly accessible, allowing any Twitter user—other than those whom he blocked—to respond to his posts. [Emphasis added]

This apparently throw-away comment by Justice Thomas is more important than it appears at first blush. We have already seen Trump’s Twitter comments referenced in other legal proceedings. If, as Justice Thomas suggests, these Twitter remarks were often used in an official capacity, it undermines an argument often made by Trump’s lawyers that his Twitter posts should not be taken at face value.

It has been noted in other contexts that Trump’s voluminous Twitter posts could later be problematic for him. When a conservative justice such as Thomas says that Twitter posts have credence as official statements, it gives even deeper meaning to “problematic.”


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