Following Trump Ruling Against Twitter Blockade, AOC Sued For Her Blocks On Twitter

from the yup dept

So we just wrote about the 2nd Circuit Appeals court affirming a victory for the Knight 1st Amendment Center against Donald Trump, making it clear that he cannot block followers on social media. As we noted, the case is very fact specific, and people shouldn’t read too much into it. But, in general, it does find that if someone is a public official, using social media for official government purposes, and creating an open public forum out of that, they cannot block followers based on the views of those followers — as that is the state engaging in impermissible viewpoint discrimination.

Some Trump supporters then spun that around on the other side of the aisle, picking out the fact that freshman Congresswoman Alexandria Ocasio-Cortez has blocked people on Twitter as well. Indeed, as Scott Greenfield points out, in the wake of the 2nd Circuit ruling, former NY State Assemblyman Dov Hikind has already sued Ocasio-Cortez, pointing out that she has him blocked on Twitter.

And, again, the whole point we tried to make with our post about the Trump ruling is that the rules are very fact specific — but based on what’s known so far, it looks like Hikind is absolutely correct. AOC famously uses her Twitter feed for official government business all the time. And if she’s blocked Hikind for the way he expresses his views, it seems likely that she, too, is on the wrong side of the Constitution. From the lawsuit, it appears Hikind is very much blocked by AOC:

I’ve seen some people trying to distinguish the two cases — but mostly that seems based on their political views, and whether they tend to support Trump or AOC. And that’s a problem. There may be distinguishing factors that come out later, but from what’s laid out in the lawsuit as presented, it seems like Hikind’s case is pretty much identical to the Knight case, and AOC shouldn’t be allowed to block people from this particular account. One possible distinction would be if AOC can prove that the decisions to block were not based on content (a violation of the 1st Amendment), but on actions, such as harassment — however, it would be very, very difficult to make that case in a credible way that doesn’t also create all sorts of knock-on consequences for speech.

I’ve seen some raise issues about how she should be able to make use of the tools provided on the platform to block trolls and harassers, but, again, that applies equally to Trump. And going back to basics, if the government official is creating an open forum, they cannot block people based on their expression. That’s sort of fundamental to the 1st Amendment. And thus, if you agree that Trump can’t block users, it seems that should apply equally to AOC, no matter if you support one of them, neither of them or even (amazingly) both of them.

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Comments on “Following Trump Ruling Against Twitter Blockade, AOC Sued For Her Blocks On Twitter”

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79 Comments
Thad (profile) says:

I posted this yesterday, but Fortune has a good piece up about one of the suits and I think it’s worth reading (though it treads a lot of the same ground you just did):

According to Katie Fallow, a senior staff attorney at the Knight First Amendment Institute, which brought the successful lawsuit against Trump, Octasio-Cortez is poised to lose the lawsuit.

"It does appear she’s been using the account as an extension of her office and a way to conduct government business. If she has blocked people from that account based on their viewpoints, the same principles would apply based on our suit against Trump," she said.

[…]

A harder question is when obviously political Twitter accounts, like those of Trump and Octasio-Cortez, can block users for valid reasons. In the case of Octasio-Cortez, especially, many of the replies to her tweets contain language that is sexist, racist or threatening. Does she have to permit such people to follow her all the same?

Fallow says the legal issue in this case tips into a grey area. While the First Amendment does not protect speech known as "true threats," the law is less clear when it comes to harassment or abuse.

She added that politicians could exercise some control over their social media accounts by stating they will exclude certain users for certain behavior, so long as such exclusion is done on a "viewpoint neutral" basis. Fallow noted that staff of the House of Representatives could likely assist them to do so.

TKnarr (profile) says:

Re: Re: Re:

It depends a lot on the speech. Even politicians aren’t obliged to let people who don’t agree with them yell over other people who’re trying to talk, eat up time spewing personal insults at other speakers who don’t agree with the bile-spewer, and generally disrupt other people’s attempts to speak at meetings, open houses and such. It’s harder to do that in an on-line forum, but I can see an argument being made for politicians being able to block people who spam comments to the point it makes it difficult for anyone to follow actual discussions, even if the spamming is completely one-sided, as long as the block is for the act of spamming and not the viewpoint being spammed. My experience is that such spam also inevitably falls under the heading of harassment and abuse as well, just because the people who engage in it have no real rational points to make and are resorting to simply bullying everyone else into shutting up.

Thad (profile) says:

Re: Re: Re:

Though I cringe a little at the mere suggestion that "harassment and abuse" would fall under "true threats." Under pretty long-standing 1st Amendment law… it would clearly not.

But that’s not what it says. To the contrary, it directly contrasts true threats with harassment and abuse. It says that First Amendment caselaw holds that true threats are not protected speech, but is less clear on harassment and abuse.

Mike Masnick (profile) says:

Re: Re: Re: Re:

Ah, you may be right. My immediate interpretation was that it was suggesting that "true threats" aren’t protected and it’s "less clear" if harassment and abuse would be considered true threats. Your read might be more accurate — but doesn’t make much sense, really. The established exceptions to the 1st amendment are pretty clear, and courts over the past few decades have shown zero appetite to expand them.

Anonymous Coward says:

Re: Re: Re:2 Re:

I assume removing a person that a reasonable person will consider harassing from a platform is normal as is done at rallies.

Like if someone tried getting on stage with the politician to yell out their own message or sitting in the front isle while Obama is speaking screaming the N word continuously.

Thad (profile) says:

Re: Re: Twitter Blocking

I think that the President receives a greater number of threatening and hate tweets than AOC. He should be allowed to block those types of messages.

Threatening? Yes. Assuming we’re talking about true threats, and not rhetorical hyperbole. Popehat has a lot of posts discussing the difference, under the true threats tag.

"Hate tweets"? That’s a lot more nebulous. US law does not have laws against hate speech in the way that some other countries do.

Now, it is possible that Trump would be allowed to block people for certain types of "hateful" tweets, but the rub is that he’d have to do it consistently.

If Trump were to block someone for, for example, tweeting "You’re a fucking idiot" at him, that might pass muster in the courts — it’s not making a specific policy criticism, it’s just insults and profanity. Those are both content-neutral criteria, and you could make the argument that blocking someone for saying "you’re a fucking idiot" is based on the abusive nature of the speech and not for the speaker’s political views.

But here’s the problem: it’s only content-neutral if it’s done consistently. If Trump blocks anyone who tweets "you’re a fucking idiot" at him, he also has to block anyone who says "Nancy Pelosi is a fucking idiot" at him. If he blocks people for directing that language at him, he has to block people for directing that language at anybody; it has to be about the language, not the target.

Given that Trump gleefully retweets all sorts of nasty comments about his political rivals, that doesn’t seem like something he’s likely to do.

Anonymous Coward says:

Re: Re: Twitter Blocking

"I think that the President receives a greater number of threatening and hate tweets than AOC."

  • It would be of interest to see from what data you draw your conclusion.

" It’s against the law to make threats."

  • Is it illegal to make threats? Really now. Juvenile delinquents across the nation will rise up and report their mothers because they were threatened with no candy if they did not do their chores.
btr1701 (profile) says:

Re: Re: Twitter Blocking

I think that the President receives a greater number of threatening and hate tweets than AOC. Trump should turn those messages over to the Secret Service. It’s against the law to make threats.

But it’s not against the law to hate the president, nor is hate speech a true threat under which the Secret Service could act.

Agammamon says:

Re: Re:

I’m not sure how that is relevant though.

I mean, sure, you can create a new profile. But if you continue the behavior you were doing that got you blocked in the first place – you’d get blocked again.

And this ruling makes that irrelevant – because you can’t be (legally) blocked on these accounts anymore.

But no one has to listen to you (anyone can mute you).

K`Tetch (profile) says:

specific locality

ok, the EDNY covers Richmond, kings, queens, Nassau and Suffolk. AOC’s district covers part of Queens and the Bronx.

So, if this guy lives in the Queens part of her district, then he may have a case, depending on the specifics of his actions.

HOWEVER, if he’s elsewhere in the EDNY, then he may be out of luck.

And indeed I read further on, and " Mr. Hikind lives in Kings County, New York", which is Brooklyn, and his assembly district (brooklyn 46) is the midwood and Borough Park areas, which are NOT in the 12th Congressional district, it’s in the 10th.

So, AOC is not his representative, Jerry Nadler is. So, if he wants to address his member of Congress, He’s who he should be communicating with, and he’s the only member of the house that has any sort of responsbility to be open for address. I mean, I can’t go to AOC and have her do things for me either, I have to go to deputy whip (and living photo-op, seriously he does nothing else) Drew Ferguson (who is more whipped than whip-er)

So, she may win, because it’s not her job to listen and deal with nutjobs nationwide, only if they reside in the Bronx and bits of Queens.

frank87 (profile) says:

Re: Re: Re: specific locality

I think his second point is better: she doesn’t represent some kind of gouvernement office. She’s the representative of the people (I don’t know the details, but probably on personal title, to prevent bribery and coercion).
If those committees start publishing their decisions on this account, it could be different.

K`Tetch (profile) says:

Re: Re: specific locality

Many years ago, I went to engage with Lynn Westmoreland after his disastrous appearance on the Colbert Report (where he wanted a 10 commandments statue, but couldn’t name but 3 commandments)

He refused to take my email back then, because I didn’t reside in his district any more (I’d moved a few months earlier). I don’t see this as being that different, and it was an activity on the house website.

And as for her committees, there are contact pages on both the oversight (https://oversight.house.gov/contact) and financial services (https://financialservices.house.gov/contact/) committees to contact those.

Anonymous Coward says:

Re: Re: Re:3 specific locality

Different AC: I’d agree that it was more of a mute. You could still view the public discussion (a twitter block bars you from viewing the public discussion) and express your opinion to others in the public sphere (whereas a twitter block prevents you from engaging in the public comments from the original tweet).

The element that remains is that you were prevented from directly addressing the politician. This is similar to the twitter mute function which allows the politician to prevent your messages from being displayed to them.
This may feel like you were "blocked", but you were in fact only "muted"; your communication to the politician was read, but then ignored.

I can definitely see how that feels like a block —after all, your message was intercepted and bounced away— but in terms of the two silencing options available to twitter account owners, you definitely suffered a "mute" and not a "block".

K`Tetch (profile) says:

Re: Re: Re:4 specific locality

If I was not able to even send it in the first place, how is that ‘was read, but ignored’?

Literally, the system did not permit you even to have the ability to send, AT ALL.

It wasn’t "I get to type and then it’s sent elsewhere" – on the ‘contact’ link it said ‘give your address, now heres your rep, this is the one you can contact, and not anyone else’.

You’re reaching so far, you should look into being a goalkeeper.

bob says:

Re: Re: Re:2 specific locality

It didnt change the outcome of the suit because he uses his personal account to conduct government business.

Any politician can have a private and government Twitter account. As long as they only use the private one for non government business, they can block anyone that want to on that account. On the government account they can’t block a person based on viewpoints expressed.

btr1701 (profile) says:

Re: Re: specific locality

Since every member of Congress has a hand in passing legislation and policies that affect everyone nationwide, we all have a right to express our views to all of them, collectively or individually.

To say the 1st Amendment applies only to your own member(s) of Congress is a non-starter. The government is the government and I have a right to redress any government official with my grievances.

To rule otherwise would be equivalent to saying a guy from California has no 1st Amendment right to picket outside the governor’s mansion in Texas because the government of Texas doesn’t represent him.

jms (profile) says:

Account usage

AOC may use the @AOC account as an extension, but has she ever stated that it’s an official channel? Wouldn’t the official channel be the @RepAOC account?

For Trump, it has been said that his personal account is going to be used for official business (which should make it fall under the Federal rules while he’s President yes?). I cannot find the same reference with AOC. So, if this guy is actually represented by her, and she has blocked him on the @RepAOC account, then that block should be removed.

Or if it’s stated that the @AOC account will be used as an official account then clear the block there.

jms (profile) says:

Re: Re: Account usage

From my reading it’s:

[…] 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.

AOC treats the @AOC account as personal. There may be overlap yes… but she is a Representative. The @RepAOC account is treated as the "official" account. Trumps administration treats his personal account as the official account, not the @POTUS account.

The 2nd left it open to interpretation on a case by case basis ("fact‐specific inquiry").

Ganja Man says:

Re: Account usage

AOC may use the @AOC account as an extension, but has she ever stated that
it’s an official channel? Wouldn’t the official channel be the @RepAOC account?

With due respect, that’s a pretty a dumb argument. It doesn’t matter that AOC and DJT have never labeled their personal accounts are "official channels." The labels don’t matter. What matters is what they are doing with those accounts. And both of them use their Twitter accounts (yes, their "personal" ones) to disseminate their opinions about policy issues, to endorse candidates or positions, to disagree with others about policy issues, and distribute other communications about their official duties.

I mean, come on, AOC used her personal @AOC account to disseminate the text of her proposed Green New Deal. https://twitter.com/aoc/status/1080269371921088514 I cannot imagine anything more "official" than that.

Ganja Man says:

Re: use an official account

The smart thing is create an official politician account, and keep it
separate from personal one.

I don’t understand how this makes any difference. Both AOC and DJT have separate official and personal accounts. (DJT has @realDonaldTrump and @POTUS, and AOC has @AOC and @RepAOC). The distinction is meaningless, since both politicians use personal accounts to post policy statements.

The Second Circuit ruling recognized that if you could end-run the constitution by posting everything to an account that you call your personal account.

Anonymous Coward says:

Re: Re: use an official account

The idea is you only post policy statements on the official account, and leave the personal one for non-work related stuff.

I’m somewhat surprised they are actually allowed to use their personal accounts for official business as aren’t their laws around retention of government communications?

Anonymous Coward says:

And thus, if you agree that Trump can’t block users, it seems that should apply equally to AOC, no matter if you support one of them, neither of them or even (amazingly) both of them.

Why is it "amazing" if someone supports both Trump and Ocasio-Cortez? While their viewpoints might be far apart, as politicians they have much in common. Both of them came out of nowhere, defeated powerful establishment politicians, and continue to fight Washington’s entrenched power structure, which hates both of these political gadflies. AOC’s never ending "catfight" with fellow democrat Nancy Pelosi is not unlike Trump butting heads with the former Republican House Speaker Paul Ryan.

Was it also "amazing" that so many of Ron Paul’s supporters became Obama supporters, despite that fact that they were on seemingly opposite ends of the political spectrum? Is it also "amazing" that the kind of people who look at government with a jaundiced eye might want someone –anyone– put in a position to shake things up and help tear down a corrupt, stagnant, and self-serving political elite so that hopefully something better (or at least different) might rise up out of the smoldering ashes?

Ganja Man says:

There are no principled grounds to legally distinguish the two cases. Even the person who brought the case against Trump, a woke Democrat from a public interest firm, thinks AOC is totally on the wrong side here legally. The @AOC Twitter account is no more a "personal" account than @realDonaldTrump. Both were created before they were elected to office, and both are used to promote policy and express official positions.

Pete Austin says:

Can she get them banned instead?

If AOC (and Trump) can’t block people, can they get their targets banned instead?
Either directly by reporting them to Twitter, or sugesting that such people should be mass-reported by supporters.

(There are a many examples where mass reports (pile-ons) against someone who is not a blue checkmark have caused an unfair ban, presumably because the process is largely automated).

Would such Twitter bans be unconstitutional too, as the effect would be to block speech?

That One Guy (profile) says:

Re: Can she get them banned instead?

Either directly by reporting them to Twitter, or sugesting that such people should be mass-reported by supporters.

Reporting them for a violation of the TOS might be allowable as the ultimate choice would be up to Twitter whether or not to follow through, but I don’t see encouraging mass-reports, especially when you’re talking about a government official doing the encouraging, as being acceptable.

The first would be a matter of reporting someone for violating the rules, which while questionable given their position would probably not cross the line, whereas the second strikes me as an attempt to use their position to force the issue, which likely would cross the line.

Ganja Man says:

Re: Re: First step towards making Twitter st so public platforms

No, what Gerald means is that if it’s a "public forum," there is legal precedent suggesting that Twitter itself could be precluded from blocking Constitutionally-protected speech. Right now, the First Amendment doesn’t apply to Twitter itself because it’s a private actor. But if Twitter gets found to be a "public forum," First Amendment principles would apply to Twitter itself. That means Twitter wouldn’t be able to make value judgments or ban users based on viewpoint, which Twitter unabashedly does on a daily basis.

Toom1275 (profile) says:

Re: Re: Re: First step towards making Twitter st so public platf

But if Twitter gets found to be a "public forum,"

Did you miss the part where for that to happen, Twitter must first be nationalized and run by the government? Until that happens, it’ll never truly be a "public forum."

ban users based on viewpoint, which Twitter unabashedly does on a daily basis.

[Asserts facts not in evidence]

R,ogs/ says:

Re: Re: Re:2 First step towards making Twitter st so public p

Oh, but Donnies account, which he started before he became prez is somehow public?

Get the frozen gerbils out of your freezepeach ass, and stop killing public debate, by hiding behind shitty, fascist legislation, and judicial opinion, and those clearly sectarian judges who write it.

Anonymous Coward says:

Re: First step towards making Twitter st so public platforms

You are failing to make the distinction between Twitter and an user account on Twitter. Also you are failing to note that the ruling does not apply to Twitter, but only to a Twitter user who is using an account for government purposes. It only says such officials cannot block people on social media, but does not say that social media must allow someone to keep an account so that they can talk to officials, or that the social media sites cannot delete offensive messages.

Teamchaos (profile) says:

Why wouldn't it apply to AOC equally?

And thus, if you agree that Trump can’t block users, it seems that should apply equally to AOC, no matter if you support one of them, neither of them or even (amazingly) both of them.

I’m a bit confused by the use of the phrase "it seems like that should apply equally to AOC" Why does it only "seem" like it should apply equally? Why not simply state "it should apply equally to AOC"? What’s the gray area here that makes it only "seem" like the law should be applied equally?

R,ogs/ says:

got it....

So, Twitter is a PRIVATE “platform”that can itself deploy viewpoint discrimination against Nazis, but not Zionists on the left, who are also publuc servants; against whacko (R)s but seldom/never against whacko (D)s and their ADLified minions of flying monkeys because its a “private” platform.

But: its a PUBLIC forum when its the conservative president and his followers who himself "discriminates” against the "viewpoint” of Israelified/AIPAC/SOROS troll farms, NGOs and crisis PR firms, raving fauxleft #fakerape fueled champagne liberals of the Silicon Valley “deep state,” etc.

got it.

Bad precedent, urged on by Pelosi/Feinstein type neocons, allowing corporations and the One Percent-whom-thou-shalt-never-list-or-describe-by-religious-or-tribal-affilliation to write the rules of public/private discourse.

R,ogs/ says:

Re: Re: got it....

Teka, I am a realist. And you are a race baiting POS or that comment.

Not all activists, dissidents, etc. who are slandered, smeared, defamed, etc. by the massively disproportional ADL /Israeli propaganda machine are altRight, though we frequently are disgusted at ow people ike you -whoever "you ” are slurp down THAT form if racial -tribal identitarian racism, while casting your own wide net of actual hate.

So, you are clearly more classy than me, but with Speech Police approval, apparently.

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