SCOTUS Vacates Second Circuit Decision Finding President Trump’s Prior Twitter Ban Violated the First Amendment

On April 5, 2021 the Supreme Court granted the government’s writ of certiorari and vacated the Second Circuit’s decision in Knight First Amendment Institute v. Trump, 928 F.3d 226 (2nd Cir. 2019) where it found that then-President Trump violated the First Amendment when he blocked users from his Twitter account. The Supreme Court’s unanimous decision issued instructions to the Second Circuit to dismiss the case as moot given the change in Presidential administration. The opinion, (now titled Biden v. Knight First Amendment Institute), was issued without discussion save a concurring opinion by Justice Thomas. In his concurring opinion, Justice Thomas took aim at Twitter’s recent ban on Trump (which happened after the Second Circuit issued its opinion) noting that today’s digital platforms provide unprecedented amounts of speech and unprecedented concentrated power in the hands of a few private parties. While the Supreme Court did not address the issue, Justice Thomas opined that the Court would “soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms.”

The Supreme Court’s decision to vacate the Second Circuit’s ruling with directions to dismiss based on mootness, does not change the immediate legal landscape. But it is a foreshadowing that the jurisprudence in this arena is still very much evolving. Both the Fourth Circuit’s decision in Davison v. Randall, 912 F.3d 666 (4th Cir. 2019) and the Fifth Circuit’s decision in Robinson v. Hunt County Texas, 921 F.3d 440 (5th Cir. 2019) still stand and in those cases the courts viewed the interactive component of a government official’s social media account as a public forum. With the recent development of Twitter and Facebook more assertively banning or blocking certain posts, however, the courts may now look at the issue through a different lens. This coupled with the legislature’s increased interest in possible updates to Section 230 of the Communications Decency Act which shields social media platforms from liability, serves to highlight the dynamic issues at play with social media and the First Amendment.