First Amendment

Two Lawsuits Argue That Alexandria Ocasio-Cortez's Blocking of Twitter Critics, Like Trump's, Violates the First Amendment

The New York congresswoman's use of Twitter seems similar to the president's in constitutionally relevant ways.

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Yesterday, on the same day that the U.S. Court of Appeals for the 2nd Circuit ruled that Donald Trump cannot constitutionally block Twitter users whose views offend him, two critics of Rep. Alexandria Ocasio-Cortez (D-N.Y.) filed lawsuits arguing that the same rule should apply to her. "Just today, the 2nd Circuit Court of Appeals affirmed a ruling that elected officials cannot block individuals from their Twitter accounts," one of the plaintiffs, former New York state legislator Dov Hikind, told Fox News.

While that is not quite what the 2nd Circuit held, Hikind's complaint, filed in the U.S. District Court for the Eastern District of New York, makes a plausible case that Ocasio-Cortez's main Twitter account, @AOC, functions in a way similar to the president's @realDonaldTrump account. While both Trump and Ocasio-Cortez established their accounts before they were elected, they both use them for what seem to be official government purposes. And while both also have "official" accounts (@POTUS and @repAOC, respectively), their ostensibly personal accounts are much more popular as forums for discussing policy and politics (with 26 million vs. 62 million followers in Trump's case and 4.7 million vs. 172,000 in Ocasio-Cortez's).

Ocasio-Cortez's account, like Trump's, identifies her by her government title and features photographs related to her official work. Hikind says @AOC is "the account to which AOC regularly posts and engages in…political speech" and "advocates for her positions." He argues that "AOC uses Twitter as an important public forum for speech," noting that she "uses Twitter to make formal announcements, opine on a range of social matters both domestic and abroad, endorse candidates, engage with follow[er]s of her account, [and] promote Defendant's agenda." Her recent tweets, for example, include posts about her Green New Deal, her questions about unemployment during a congressional hearing, criminal justice reform, border enforcement, Republican sexism, her pursuit of "environmental justice," and various pieces of legislation she has sponsored.

Ocasio-Cortez, like Trump, generally makes the "interactive space" associated with her account available to all comers. But she makes exceptions for certain Twitter users, such as Hikind and Republican congressional candidate Joseph Saladino (the plaintiff in the other Twitter blocking lawsuit filed against Ocasio-Cortez yesterday), whose opinions annoy her. "The manner in which AOC uses the @AOC Twitter account makes it a public forum under the First Amendment," Hikind argues. "Plaintiff respectfully ask[s] that this Court declare that the viewpoint-based exclusion occurring here violates the First Amendment, order the Defendant to restore Mr. Hikind's access, and bar Defendant from blocking access to her twitter account."

Contrary to what Hikind implied on Fox News, the 2nd Circuit did not say that any government official with a Twitter account has to let all users follow him, no matter how irksome they are. But it did outline criteria for determining when blocked users have a legitimate constitutional beef.

"Whether First Amendment concerns are triggered when a public official uses his account in ways that differ from those presented on this appeal will in most instances be a fact‐specific inquiry," the appeals court said. "The outcome of that inquiry will be informed by how the official describes and uses the account; to whom features of the account are made available; and how others, including government officials and agencies, regard and treat the account."

When government officials use their Twitter accounts for personal purposes and do not present them as extensions of their jobs, they can block whomever they want. But when they use their Twitter accounts to communicate with constituents, brag about their legislative accomplishments, promote their policy agendas, and respond to criticism of their positions and work, they are inviting this sort of lawsuit.

Assuming that Hikind and Saladino are successful, the burden imposed on Ocasio-Cortez would be slight. As the 2nd Circuit emphasized, politicians who use Twitter for public purposes do not have to listen to their critics; they only have to let them participate in the debate they are inviting on the same terms as their supporters. If Ocasio-Cortez wanted to avoid any offense or discomfort caused by critical comments, she could still mute Twitter users such as Hikind and Saladino, so she would never even have to see what they are saying about her, while they would still be free to engage with all the other people reacting to her tweets. That does not seem like too much to demand from elected officials who use social media as part of their government work.

NEXT: A Mural Quoting Trump at His Most Profane Is Protected Speech, Judge Rules

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  1. And here we go

      1. Don’t bother packing your baggage. Melvin will bring enough for everyone.

        1. I hear ol’ Melvin cheaped out on the accommodations and booked us a single–also no deodorant too. The horror that will befall us all when our smelly and sweaty bodies entangle; the sultry warmth that wraps around us like the covers on the bed; and our many hairy areas act as our pillows.
          Truly a tragedy.

          1. What’s important for you, Yellow Tony, is that there is no door on the bathroom.

            1. Just when I thought his imagery couldn’t get worse.

    1. If you follow the logic of the opinion, it should be illegal for government agencies and employees to use Twitter at all for “public forums”, as it practices it’s own content based discrimination, which any account on Twitter inherits.

  2. Staten Island and Brooklyn vs the Boogie Down in a Twitter free-speech off is The Warriors of our time.

    1. The chicks are packed!

      1. My prediction: AOC is the first to make it to Coney Island.

  3. I wonder how long before the Demos or Repugs start spouting off about turning Twitter into a real public utility ala AT&T.

    1. They won’t and don’t have to. At this point, Campaign Ads from Russian Bots on Twitter will be mandatory and you won’t be able to sue Twitter even if you were deliberately misinformed by them.

    2. Not shocked you refuse to actually acknowledge the argument. it is now centered around ending extra legal protections, not regulations.

      Weird how your side refuses to acknowledge this. Please die on the petard of favored protections for a subset of corporate entities.

        1. Good link. Its nice to see how our government granted crony protectionist policies for these companies. Time to end it.

  4. But this is clearly different!

    1. It is a fact specific inquiry; specifically if the public official is a Republican or Democrat.

    2. Exactly!

      Contrary to what Hikind implied on Fox News, the 2nd Circuit did not say that any government official with a Twitter account has to let all users follow him, no matter how irksome they are.

      The 2nd Circuit ruled that Orange Man Bad, so he can’t block people. I’m sure the courts will rule Chompers Girl Good, so she can.

  5. Sullum stumbles up to the bar and sees Alex Oyster-Cult washing glasses.
    The metro-swinger sez : ” I’ll have a Slippery Nipple, baby doll.”
    AOC, her face screwed-up in confusion, replies: “No understand, senor!”
    The Eastern big shot smiles and unbuttons his shirt, showing his infected nipple weeping fluids: “Comprende, Cha Cha?”
    AOC giggles: “Oh papi!”
    Both snap to attention when the bar TV plays God Bless America during the Yankees-BoSox game 7th inning stretch.

    1. I’d like to remind everybody that BÖC’s best album is Secret Treaties.

      1. It’s tough for me pick their best album.

        1. Imaginos – only because of the concept.

          1. Not bad, and certainly one of their better ones, but I’m still on fence about the Astronomy rendition.

        2. the one w/Astronomy

    2. Where is Sugarfree when you need him …

      1. In AOC and Gabbard, he finally has some politicians worthy of writing porn about.

        1. I for one do not want to see AOC’s tentacles exposed.

        2. Last time I checked the Glibs, which was admittedly a while ago, SugarFree was writing some super tame shit completely devoid of the pizazz that used to raise gallbladder and penis alike.

          1. Is this that libertarian site that a bunch of commentators bailed out to from Reason years ago? I never visited it,
            Does Heroic Mulatto hang out there?

            1. Yup. They’re all there.

  6. This is clearly an attempt to bully AOC. But it won’t work. Despite the alt-right trolls, she’ll continue fighting for the Koch / Reason immigration agenda. I can even see a Presidential run when she’s old enough. I know I’d vote for her.

    #LibertariansForAOC

    1. That 35+ age to be president is bullshit.
      If people under 35 can’t be Prez then there should be an amendment preventing old fucks of 70+ being president. Those geezers are simply too old to function properly.

      1. If anything changes about the way we elect Presidents, the Electoral College should be the first thing to go.

        1. First, everyone in America gets the vote. Young and old, citizens and undocumented Americans.

          #EndRepublicanVoterSuppression

      2. Amen brother!

        RBG, Breyer, and Thomas have got to go!

        Then Trump gets to nominate a replacement for them.

        Then after Trump does 8 years as President, he will leave office as the best President in over 80 years and then no Americans over 70 will ever be President again.

        1. We had a lot of not-so-old presidents (Clinton, Obama, Bush II, Carter) in recent times. Are you sure that’s the line you want to draw?

          1. If a 45-yr.-old can nearly initiate a nuclear winter anybody should be able to nearly initiate a nuclear winter!

    2. Are you sure you wouldn’t stick with Trump and the bigots? Has he done something tolerant or decent to offend you?

      1. Trump and the bigots
        Anybody want to start a punk rock band with this name? Each song will be based off a post by our good Reverend.

        1. So all the songs will be about clingers and Ouachita Baptist College?

          1. 13 songs, all titled “Ineffectual clingers”

      2. You must be confusing me with someone else, Art. I’m at least as anti-Drumpf as you.

        In fact, I might be more anti-Drumpf since I’m a more vocal advocate of impeachment. To be honest, I was a little disappointed you downplayed the need to impeach even after Mueller definitively proved what Rachel Maddow has been telling us for years about #TrumpRussia.

        Here’s the MoveOn petition again if the literal concentration camps have made you change your mind.

        1. He’s replying to me, Obladi Oblada.

      3. So the great Rev. responds to the well known parody handle.

        Yet he likes to call other people uneducated.

        1. I think he’s trying to be clever by assuming what OBL’s actual positions are, and responding to those

      4. Says the bigot.

  7. Oh God, if you exist… Please let AOC argue her own case on C-SPAN.

    1. While live-tweeting…

      1. On her “official” House Twitter account or personal Twatter account?

  8. >>>Ocasio-Cortez wanted to avoid any offense or discomfort caused by critical comments

    she can go be a bartender w/a phone.

    1. A pen and a phone?

      1. not certain the utes know how to use pens

  9. “Whether First Amendment concerns are triggered when a public official uses his account in ways that differ from those presented on this appeal will in most instances be a fact‐specific inquiry,” the appeals court said. “The outcome of that inquiry will be informed by how the official describes and uses the account; to whom features of the account are made available; and how others, including government officials and agencies, regard and treat the account.”

    Haha. Talk about pulling judicial opinions based on Constitutional rights out of your ass.

    I do like that there are people who flip the script on people like this federal judge, AOC, and Jacob Sullum.

    1. contrarians unite! oh wait.

    2. Yeah, I’m not entirely sure I follow this reasoning at all.

      If there were an actual public forum – you know, an old-style physical forum where people actually meet to talk in person – how would political discussion work there?

      Let’s say AOC or Trump or whoever was having a candidate’s forum at the local civic center. And 500 people are there. Surely the courts would not try to enforce a ruling that the speaker has no right to tell that heckler from the national man-boy lover’s association to either sit down and shut up or leave.

      That’s what these twitter trolls amount to. AOC wants to discus the evils of corporate republicans and global warming and some conservative republican comes along and wants to interject partial birth abortions and anchor babies into every discussion. At what point do you get to shape your own conversation?

      City council meetings are always getting mentioned on government watchdog sites for kicking out people who oppose what they are doing. They rarely get in any trouble for doing so.

      Why is Twitter all that different? Is it only because it was Trump who did it first, and not AOC? I suppose we are about to find out.

    3. “fact‐specific inquiry” = Orange Man Bad

  10. “Whether First Amendment concerns are triggered when a public official uses his account in ways that differ from those presented on this appeal will in most instances be a fact‐specific inquiry,” the appeals court said. “The outcome of that inquiry will be informed by how the official describes and uses the account; to whom features of the account are made available; and how others, including government officials and agencies, regard and treat the account.”

    Now do we understand how this could be applied to anyone?

    1. It’s equality of outcomes applied to free speech. If any speech is harmful, the equality collective can assimilate all speech.

  11. Assuming that Hikind and Saladino are successful, the burden imposed on Ocasio-Cortez would be slight.

    As long as that burden remains slight, like asking a few questions at a roadside checkpoint within the borders of the united states? That kind of slight?

  12. BTW, I do assume that at least we’re defining a “public official” as an employee of the government? Because we saw how the court bent “public use” over a fencepost and buggered it until it became “public purpose”.

    1. Employee of the government or any non-employee who is nevertheless acting as an agent of the government. You don’t get to evade constitutional obligations by outsourcing.

      1. You see the feature creep here, though, right? A private account is no longer private if its operated by a “public official” and used in a capacity that after a “fact specific” set of findings determine that private account is subject to government-mandated obligations. However, not ALL public official’s accounts are subject to said obligations of the fact-finding determines that it doesn’t meet the minimum criterion.

  13. Contrary to what Hikind implied on Fox News, the 2nd Circuit did not say that any government official with a Twitter account has to let all users follow him, no matter how irksome they are. But it did outline criteria for determining when blocked users have a legitimate constitutional beef.

    Yet the court indicated that every politician can potentially be forced to let users follow them, which means an endless stream of lawsuits so the court can enter a “fact-specific” investigation to see if whatever completely undisclosed criteria are met to determine if that twitter account is subject to constitutional dictates that the others aren’t.

    This case is so dumb I can’t believe it ever got off the ground. I can’t think of an issue that has less to do with the first amendment than this one. Hell “equal time” had more first amendment footing that this shit does.

  14. Not to worry. Twitter will happily ban users that make our own Rosa Kleb uncomfortable in any way.

  15. Wait until they make it mandatory to follow AOC on Twitter.

  16. In other more relevant news…

    California court struck down Meagan Murphy’s lawsuit against twitter on 230 grounds even though the toot of her argument was contractual and not editorial. She was banned for tweets made before twitter changed its rules. An ex post facto contract change.

    End 230 protections.

    1. Maybe you could provide some more details on this case.

      1. So you can ignore them?

  17. This is a no brainer. Either all elected officials are subject to the same rules or none of them are.
    What I am more interested in is financing.
    I strongly believe that no official should be allowed to accept donations from outside sources for their campaigns. For example, AOC represents New York yet we are aware much of her campaign funds come from out of state. This same rule should apply to Presidential campaigns accepting donations from outside the USA.

  18. This is just a mess, thanks to the 2nd Circuit. Thanks guys (and gals), because you left the rest of us with a real mess to sort out.

    Pragmatically, I think ‘Man from Earth’ has this one right. Either the rules apply to every single official (however that is defined), or it applies to no official. I would prefer the latter, and would let anyone block whomever they want.

    I also know I especially do not want politicians or bureaucrats deciding this question (whether to allow blocking or not, and the circumstances that occurs). I just do not trust them.

  19. […] Two Lawsuits Argue That Alexandria Ocasio-Cortez’s Blocking of Twitter Critics, Like Trump&#8… […]

  20. I like the idea of her not being able to block people ripping her on Twitter… She does not deserve a safe space!

  21. […] its ruling, two critics of Rep. Alexandria Ocasio-Cortez (D-N.Y.), a prominent Trump opponent, filed lawsuits arguing that she had violated their First Amendment rights by blocking them on Twitter because of […]

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