Impeaching a Former President Is Plainly Constitutional

NEIL H. BUCHANAN

UF Levin College of Law professor and economist Neil H. Buchanan argues that the text of the Constitution makes clear that Congress has the power to impeach and convict Donald Trump, even though he is no longer President. Buchanan describes the unambiguous textual support for this conclusion, which Buchanan (and others) argue is also amply supported by the Constitution’s purpose, structure, and other interpretive approaches.

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Campbell v. Reisch

Court: US Court of Appeals for the Eighth Circuit

Docket: 19-2994

Opinion Date: January 27, 2021

Judge: Arnold

Areas of Law: Civil Rights, Communications Law, Constitutional Law

Plaintiff Mike Campbell filed a 42 U.S.C. 1983 suit against Missouri state representative Cheri Toalson Reisch after she blocked him from her Twitter account, alleging that she violated the First Amendment by denying him the right to speak. The district court agreed with plaintiff, declared that Reisch had violated his rights, and ordered her to stop blocking plaintiff and others because of the content or viewpoint of their speech. The Eighth Circuit reversed, holding that plaintiff is not entitled to section 1983 relief because Reisch was not acting under state law when she blocked him from her Twitter account. The court held that Reisch's account is the kind of unofficial account that the court envisioned in Knight First Amendment Inst. at Columbia Univ. v. Trump, 928 F.3d 226, 235–36 (2d Cir. 2019). The court explained that no one seriously disputes that her account at least began life as a private account because Reisch was not a public official when she created it. Even if Reisch had been a public official at the time, the court would still hold that she had not created an official governmental account because she used it overwhelmingly for campaign purposes. The court thought that Reisch's Twitter account is more akin to a campaign newsletter than to anything else, and so it's Reisch's prerogative to select her audience and present her page as she sees fit. Therefore, Reisch's own First Amendment right to craft her campaign materials necessarily trumps Campbell's desire to convey a message on her Twitter page that she does not wish to convey, even if that message does not compete for room as it would, say, in a campaign newsletter. The court remanded for the district court to enter judgment in Reisch's favor.

Murphy v. Twitter, Inc.

Court: California Courts of Appeal

Docket: A158214(First Appellate District)

Opinion Date: January 22, 2021

Judge: Margulies

Areas of Law: Communications Law, Contracts, Internet Law

Murphy, a journalist with approximately Twitter 25,000 followers, had a Twitter “verification badge,” which “lets people know that an account of public interest is authentic.” Murphy “writes primarily on feminist issues, including the Me Too movement, the sex industry, sex education, third-wave feminism, and gender identity politics.” Murphy argues “that there is a difference between acknowledging that transgender women see themselves as female and counting them as women in a legal or social sense.” Murphy posted several tweets critical of transgender women. Twitter removed her posts and informed her she had violated its hateful conduct rules. After she posted additional similar messages, Twitter permanently suspended her account. Murphy filed suit, alleging breach of contract, promissory estoppel, and violation of the unfair competition law. The trial court dismissed the complaint, concluding Murphy’s suit was barred by the Communications Decency Act of 1996, 47 U.S.C. 230, under which interactive computer service providers have broad immunity from liability for traditional editorial functions undertaken by publishers—such as decisions whether to publish, withdraw, postpone or alter content created by third parties. The court of appeal affirmed. Each of Murphy’s causes of action seeks to hold Twitter liable for its editorial decisions. Murphy also failed to state a cognizable claim under California law. The Hateful Conduct Policy was in place when Murphy began posting her deleted tweets; Twitter expressly reserved the right to remove content, and suspend or terminate accounts “for any or no reason.”

Halva v. Minnesota State Colleges & Universities

Court: Minnesota Supreme Court

Docket: A19-0481

Opinion Date: January 20, 2021

Judge: G. Barry Anderson

Areas of Law: Communications Law, Education Law

In this case alleging that Minnesota State Colleges and Universities (MnSCU) failed to maintain and produce certain government data the Supreme Court reversed the decision of the court of appeals holding that Plaintiff's complaint under the Minnesota Government Data Practices Act was insufficiently pleaded and affirmed the court's holding that the Minnesota Official Records Act did not authorize a private cause of action, holding that the allegations of Plaintiff's complaint were sufficient. In his complaint, Appellant alleged that the actions of MnSCU violated both the Data Practices Act and the Official Records Act. The district court dismissed both claims, concluding that Appellant could not pursue judicial remedies under the Data Practices Act after obtaining an administrative remedy under the that and that the Official Records Act does not authorize a private cause of action. The court of appeals affirmed but decided the Data Practices Act issue on the alternate ground that the complaint was insufficiently pleaded. The Supreme Court reversed in part, holding (1) Appellant's complaint was sufficiently pleaded; and (2) the Official Records Act does not authorize a private cause of action.