Ocasio-Cortez Settles Lawsuit Over Twitter Blocking, Apologizes

Alexandria Ocasio-Cortez has apologized for blocking constituents on Twitter as part of a legal settlement.

New York Congresswoman Alexandria Ocasio-Cortez has settled a lawsuit regarding her blocking people on her Twitter account, following in the footsteps of an earlier case involving President Trump:

Representative Alexandria Ocasio-Cortez, the firebrand political star known for using her social media savvy to champion her progressive policies, has apologized to a former elected leader from Brooklyn who sued her for blocking him on Twitter.

“I have reconsidered my decision to block Dov Hikind from my Twitter account,” Ms. Ocasio-Cortez, a Democrat from New York, said in a statement released on Monday. “Mr. Hikind has a First Amendment right to express his views and should not be blocked for them.”

The apology was made as part of a settlement agreement in the lawsuit, which was filed by Mr. Hikind in July after a federal appeals panel ruled that President Trump, one of Ms. Ocasio-Cortez’s frequent detractors, had violated the Constitution when he blocked people from following him on Twitter after they criticized him.

The three-judge panel said that because Mr. Trump used his Twitter account to conduct government business, he could not bar some Americans from reading his posts or interacting with them.

Like Mr. Trump, Ms. Ocasio-Cortez has used her Twitter account, @AOC, to promote her policy agenda, communicate her positions on issues and engage with the public. Ms. Ocasio-Cortez has 5.7 million followers on that Twitter account, as well as 4 million followers on Instagram, where she is also active.

Ms. Ocasio-Cortez also has an official congressional account, @RepAOC, that has fewer than 200,000 followers and that she uses less frequently.

Mr. Hikind, a former assemblyman from Brooklyn who founded a nonprofit group that works to fight anti-Semitism, had engaged repeatedly with Ms. Ocasio-Cortez’s posts, frequently criticizing her.

He said that he was blocked after he assailed her over remarks she made comparing migrant detention centers at the Texas-Mexico border to concentration camps.

“Suddenly, I could not be part of the conversation,” Mr. Hikind said on Monday. “I could not share my thoughts. My mouth was closed, shut. I could not respond.”

In his lawsuit, Mr. Hikind said that by denying him access to her posts on Twitter, Ms. Ocasio-Cortez had violated his First Amendment rights to free speech.

In August, with the lawsuit ongoing, Ms. Ocasio-Cortez said on Twitter that she had blocked fewer than 20 Twitter accounts for what she called “ongoing harassment.”

“People are free to speak whatever classist, racist, false, misogynistic, bigoted comments they’d like,” she added. “They do not have the right to force others to endure their harassment and abuse.”

On Monday, in her apology, Ms. Ocasio-Cortez said that blocking Mr. Hikind “was wrong and improper and does not reflect the values I cherish.”

The apology was made public just one day before Ms. Ocasio-Cortez was scheduled to testify in Brooklyn federal court in the case.

Mr. Hikind said that while he had been looking forward to hearing Ms. Ocasio-Cortez explain her actions, he was pleased with her statement.

“She now recognizes that her decision to block me was wrong,” he said. “What can I say? I couldn’t ask for much more at this point.

All of this is rooted, of course, in a lawsuit that was filed against President Trump last year by a group of citizens who claimed that their own First Amendment rights had been violated when they were blocked by President Trump on Twitter. While I was initially skeptical of the arguments being made on behalf of the Plaintiffs, the District Court Judge hearing the case sided with the Plaintiffs and that ruling was eventually upheld by the Second Circuit Court of Appeals. This is the same circuit in which the lawsuit against Ocasio-Cortez was filed, so it means that the ruling in the Trump case is binding upon the District Court Judge that would have decided the Ocasio-Cortez case.

In it’s ruling on the Trump appeal, and basically in line with the District Court opinion, the Second Circuit noted that because Trump uses his Twitter account as more than just a personal account but also as a means of announcing Administration policy, announcing the nomination of Cabinet and other officials, and attacking people who criticize him. What he says on this account often end up becoming major news stories or political controversies. Moreover, as noted above, the White House has called the @RealDonaldTrump account a vehicle for communicating White House policy. Therefore, the two courts concluded, the President could not block Twitter users from accessing his account and communicating with him via that account, even if it is just a one-sided conversation since Trump rarely replies to Twitter users.

Based on this ruling, Mr. Hikind, who has been something of a conservative political gadfly in New York City for years, filed his own lawsuit against Ocasio-Cortez. As I noted at the time, the outcome of the case seemed obvious:

Based on the ruling of the Second Circuit Court of Appeals in the Trump case, it seems fairly clear that the Plaintiffs in these cases ought to prevail in their respective lawsuits. While @AOC is not Ocasio-Cortez’s “official” Congressional Twitter account, which is @RepAOC, she frequently, indeed almost exclusively, uses the first account to communicate political messages to her supporters and constituents. This makes is essentially identical to Trump’s @RealDonaldTrump account, which he utilizes far more than he does his “official” @POTUS account. Because of that, the Court’s conclusions regarding the “personal” Trump account, that it essentially amounts to a forum that he uses to conduct business related to his office, apply just as equally to AOC’s “personal account.

(…)

Given that, the best strategy for Ocasio-Cortez would be to unblock everyone she has blocked and agree that she won’t block anyone in the future, with the possible exception of people who make threats against her. Of course, those people should immediately be reported to law enforcement since it’s illegal to threaten the life of a Member of Congress, or anyone else for that matter. It would save a lot of time and a not-insignificant amount of legal fees.

Jazz Shaw at Hot Air seems skeptical of the wisdom of AOC’s settlement:

Both the President and AOC seem to have run into a wall, saying that their use of a privately-owned social media network is subject to the dictates of the courts based on the free speech rights of other users. This seems to be a patently ridiculous proposition, but it’s now building a body of precedent in court decisions.

The user in question in the AOC case (and the Trump case as well) is still on Twitter. They are still free to “speak” whenever they want. Both AOC and the President are still on Twitter. They are also “speaking” as they wish. Anything either of these elected officials tweet is immediately picked up and broadcast across countless channels. All that “blocking” does on Twitter is the prevention of trolls from pounding your mentions column. And it’s not a case of “the government” hindering anyone’s free speech anyway. Twitter is a private company.

The first problem with this argument is that blocking on Twitter does more than forbid someone from responding to tweets by government officials, it also forbids them from seeing those tweets. There are some workarounds that fix this, such as using a new anonymous account or using the “Incognito” mode available on most browsers today. The problem is that the first is technically a violation of Twitter’s terms of service an the second is cumbersome for even advanced users. The situation would be different if the government officials were using Twitter’s mute function instead of the blocking function. When a user mutes another user it simply means that the muted party’s tweets won’t show up in the timeline of the person muting them. It doesn’t prevent the muted party from seeing what is being tweeted. Another advantage is that a muted user does not know they are being muted.

The other issue, of course, is the fact that both Trump and AOC are using their Twitter feeds to broadcast official policy statements. Preventing people from seeing those tweets with respect to an account that is effectively an official channel of communications is, at least under the Second Circuit holding, a violation of the First Amendment. Trump apparently did not appeal that ruling to the Supreme Court, so the decision remains the law of the Second Circuit

Jazz also raises this issue with respect to non-government Twitter users:

If blocking someone as an elected official violates their free speech rights in a forum owned and operated by a private company, how is the blocking of anyone by anyone else not a violation of said rights? Kicking certain news outlets out of official government press conferences might (and I emphasize might) be considered a way of blocking the public’s access to official government information distribution.

Twitter is not a newspaper or a television news station. Once again, it’s a private chat network where you are allowed to choose who you follow and what you hear. You are similarly allowed to choose who you don’t want to hear. Treating anyone differently based on the fact that they are an elected official creates different classes of rights and citizenship. And it further embeds Twitter (a private company) in the collective consciousness as some sort of utility. It’s an internet chat program.

The answer to this question, of course, is that both Trump and AOC are public officials. The vast majority of Twitter users are not, and if they block people on Twitter they aren’t acting as government officials but as a private citizen with a social media account. The more important issue for AOC, though, is that it was clear where this case against her would be headed if she didn’t settle. Contesting the case any further would have been a waste of legal resources unless she wanted to take the case all the way to the Supreme Court, which would have been lengthy, time-consuming, and expensive.. Taking all that into account I don’t blame her for settling the case in this manner.

FILED UNDER: Donald Trump, First Amendment, Law and the Courts, Media, Politicians, Social Media, U.S. Constitution, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Sleeping Dog says:

    Do something stupid, admit (even grudgingly), apologize and move on. What a novel concept.

    Jazz Shaw is trying too hard to make an argument here.

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  2. OzarkHillbilly says:

    You gotta be kidding. Apologize for a mistake? What a novel idea. Who’da thunk it?

    ReplyReply
  3. Tyrell says:

    If I was running for an elected position, I would promise not to use Twitter, FaceBook, Instagram, SnapChat. I would use telephone, radio, CB, and regular postal mail. That would be good enough. I had a state Senator who I wrote letters to. He would always call me the following Saturday morning.
    People now seem to use texting and social media as a way to avoid real,
    face to face communication. I am not sure why, but it seems like there are more problems now with people relating with each other.

    ReplyReply

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