Politicians Blocking Citizens on Social Media

The Alexandria Ocasio-Cortez edition.

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Image by mkhmarketing under CC Attribution 2.0 Generic license

President Trump’s practice of governing via his personal Twitter account set off a legal debate about whether viewing and responding to a politician’s social media is protected under the First Amendment. Naturally, that discussion is expanding to Members of Congress.

The Blaze‘s Chris Enloe gets the ball rolling under the headline “Did Alexandria Ocasio-Cortez violate the Constitution with her latest action on Twitter?

On Friday, the Daily Wire’s Ryan Saavedra broke the news that Ocasio-Cortez had seemingly changed her accent while speaking to a predominantly black crowd at Al Sharpton’s National Action Network.

That’s not “news” but a really tired and silly charge that Ocasio-Cortez smacked down pretty easily. See Rolling Stone‘s Peter Wade if you’re interested in that topic.

Eventually, though, Enloe gets to the point:

Saavedra later checked the tapes, concluding that Ocasio-Cortez had, in fact, not used the same accent during the speeches she cited.

Ocasio-Cortez responded by blocking Saavedra on Twitter.

[…]


While Twitter blocking previously carried no legal implications, seven people sued President Donald Trump last year for blocking them from viewing his personal Twitter account, @realDonaldTrump.

In a shocking ruling, federal District Court Judge Naomi Reice Buchwald ruled last May that Trump’s actions were unconstitutional and violated the First Amendment. Buchwald ruled that Twitter is a “public forum” protected under the First Amendment.

She said exclusion from participation based on viewpoint — which happens when public officials block detractors — is a violation of the First Amendment.

[…]

Trump later appealed Buchwald’s ruling, which is currently pending before the U.S. Second Circuit Court of Appeals. But according to the New York Times, the three-judge panel “seemed skeptical of Mr. Trump’s contention that he was acting in a personal, not official, capacity when he blocked people” during oral arguments in March.

While it’s not yet clear how the appeals court will rule, the decision undoubtedly will have massive implications for government officials moving forward.

So that begs the question: If Trump is guilty of violating the First Amendment by blocking detractors on Twitter, is not Ocasio-Cortez also violating the law?

As I’ve noted previously, I think Buchwald is wrong. She’s 75 years old and it’s my hunch that she simply doesn’t understand how Twitter works.

While citizens have a right to petition their government for redress of grievances, they don’t have a right to an audience. I have no more right to @ RealDonaldTrump on Twitter than I do a meeting with him in the Oval Office. I don’t personally follow him on Twitter, for a variety of reasons, but I have no trouble finding out what he’s saying on that medium.

But even if we accept Buchwald’s ruling as binding, I’d say AOC is still in the clear.

First, I’d argue that she blocked Saavedra because he was harassing her on Twitter, not because of a mere “viewpoint.” There’s a long history of First Amendment law that distinguishes the content of speech and its form.

Second, and perhaps more importantly, while AOC’s surprise primary win and her skill with social media have transformed her into a national figure, she’s officially the U.S. Representative for New York’s 14th congressional district. Unless Saavedra lives in her district—and I’m pretty sure he doesn’t—he has no right to petition her for redress of grievances. Indeed, it’s been a longstanding practice for the contact forms for official Congressional websites to require the inputting of ZIP codes, with only those who live in a Representative’s district or Senator’s state being allowed to send correspondence.

FILED UNDER: Democracy, First Amendment, Law and the Courts, U.S. Constitution, US Politics
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Stormy Dragon says:

    Denying someone an audience would be equivalent to muting on Twitter, not blocking.

    The constitutional problem with blocking is not that it stops Trump from seeing them, but rather that it stops them from seeing Trump. Trump’s Twitter account is not purely personal: it is used by federal employees other than Trump and is used to distribute official announcements. That being the case, they cannot legally deny citizens access to it.

    10
  2. James Joyner says:

    @Stormy Dragon: I agree that muting is more appropriate than blocking. It’s what I tend to do myself, actually.

    That said, if someone is being harassing on Twitter, blocking may be appropriate. In this case, Saavedra was trolling AOC by repeatedly quote tweeting her, calling her racist, etc. Muting wouldn’t stop that behavior.

  3. Neil J Hudelson says:

    I think if the official White House or POTUS twitter account (which is distinct from @realdonaldtrump) blocked users, there would be a Constitutional claim. That’s certainly how it’s played out in lower forms of governments–police departments whose Facebook pages and Twitter accounts have blocked critics have routinely lost in court, and I see no reason why it shouldn’t be the same for more powerful offices.

    It would be wise if politicians didn’t use their personal pages/accounts for government communications and official business, but despite my willingness to talk they never ask my opinion on the matter. The fact that they do complicates matters, but at the end of the day there is still a clear delineation between a personal account and an official government account.

  4. Kathy says:

    There’s an argument in paleontology, which percolates to history, on whether agriculture led to a better life for people or a worse one. There are good arguments for both, but the tendency is to think “Well, our ancestors weren’t stupid. They wouldn’t have kept up agriculture if it was bad for them.”

    Without getting into how agriculture may have developed, the question above misses the point on how developments often come about: gradually, incrementally, and insidiously. Also, they may not be beneficial to everyone, but if they are to the people who hold power then they tend to stick.

    This is how I feel about social media. There are some benefits (I spend some time on Facebook every day), but overall it’s been a needless complication that arouses our worst instincts in a way it’s hard to combat.

    And we’re stuck with it.

  5. Stormy Dragon says:

    @Neil J Hudelson:

    As I said, other federal employees post on and manage Trump’s personal account. If it’s not an official account, then he’s breaking the law expending government resources on it, same as if he told the White House janitor to go clean his Trump Tower apartment.

    And indeed, even the administration is agreeing in court that is an official account. They’re just making the ridiculous arguments that when Trump posts it is an official act, but that when he blocks it is a personal act.

  6. Teve says:

    @Kathy: I’ve seen some good arguments for why agriculture was bad, such as that height and some other measurements of health seemed to go down with the advent of agriculture, but one thing that seems to make a case against following animal migrations is that with agriculture you can stay in one place and not have to abandon Grandma and Grandpa when they’re too weak to keep up the trek.

  7. Teve says:

    This is how I feel about social media. There are some benefits (I spend some time on Facebook every day), but overall it’s been a needless complication that arouses our worst instincts in a way it’s hard to combat.

    social media went from being a net negative in my life to being a net-positive, once I started taking an active role in blocking dumb assholes.

    Especially now that the new political season is upon us, and Republicans/Russians want to hurt Dems by promoting infighting, blocking aggressively destructive people is essential.

    I remind myself daily not to argue with the mendacious or malicious.

  8. Kathy says:

    @Stormy Dragon:

    They’re just making the ridiculous arguments that when Trump posts it is an official act, but that when he blocks it is a personal act.

    So it’s El Cheeto’s usual “heads I win, tails you lose” claim.

    If he hasn’t figured thing out by now, it means either 1) he’s being a jerk intentionally, or 2) he can’t figure simple things out and is incapable of holding his office.

    But the two aren’t mutually exclusive in all cases.

  9. Kit says:

    The poor Constitution is really showing its age and groaning under the weight of history. Still, as light as the stakes are here, Twitter is simply going to need to be throw on top of it all. Life grows ever more complex and the law must follow suit.

  10. Michael Reynolds says:

    I’m one of those blue checkmark people on Twitter (@MichaelGrantBks) and when I first joined I was very much for the open exchange of blah, blah, blah. But Twitter can be a malicious place and while 99% of people are fine, the 1% like to take potshots for no reason other than getting a reaction which might increase their number of followers. Now I block people all the time. Annoy me: blocked. Period. Bye bye.

  11. Joe says:

    @Michael Reynolds: And our president is part of that 1%.

  12. Mister Bluster says:

    test

  13. Mister Bluster says:

    Unless Saavedra lives in her district—and I’m pretty sure he doesn’t—he has no right to petition her for redress of grievances. Indeed, it’s been a longstanding practice for the contact forms for official Congressional websites to require the inputting of ZIP codes, with only those who live in a Representative’s district or Senator’s state being allowed to send correspondence.

    If you want to petition your elected Representative in the United States House you can always go to their local office when they are home from Washington.
    Unless the landlord calls the cops on you.

  14. Kathy says:

    @Kit:

    One of my cooking principles is that a dish cannot be fixed while cooking if you get something wrong, so you just should accept bad results from time to time. This is not entirely an absolute rule, and sometimes a fix will work, somewhat. Overall, I don’t try.

    The Constitution is designed with fixes in mind, by means of amendments. But some parts are so out of date, they should be excised, removed, or changed.

    What those who worship the US Constitution tend to forget, is that it was one of the first modern constitutions. As good as it is, it got some things wrong.

  15. James Joyner says:

    @Kathy:

    The Constitution is designed with fixes in mind, by means of amendments. But some parts are so out of date, they should be excised, removed, or changed.

    What those who worship the US Constitution tend to forget, is that it was one of the first modern constitutions. As good as it is, it got some things wrong.

    I think that’s right but that the first part is more to the point than the second. That is, while there were some things the Framers got wrong—notably the issues surrounding slavery—they mostly did a good job balancing the political realities of the day. The main issue is that a document designed to govern a country of 4 million concentrated on the Eastern Seaboard in 1787 simply isn’t able to accommodate a country of 330 million stretched out over a vast continent and beyond in 2019. It’s more decrepit than wrong.

  16. Kathy says:

    @James Joyner:

    There’s the matter of judicial review, which the Supreme Court, or rather the Chief Justice, made up on the fly.

    Beyond that, more than a matter of numbers and territory, though that counts, there are articles and amendments that have been rendered obsolete form the changes to culture and mores of society. Things like quartering soldiers in peace time.

    And then there’s the whole structure of governance built around states, from the Senate to the Electoral College, which becomes more obsolete each day.

  17. James Joyner says:

    @Kathy:

    There’s the matter of judicial review, which the Supreme Court, or rather the Chief Justice, made up on the fly.

    While that’s what my undergrad Con Law professor professed and what I long believed, there’s a strong argument that it’s not true. The concept was inherent in the Common Law tradition and Hamilton and others assumed it to be a given.

  18. Kathy says:

    @James Joyner:

    I’ll buy that, but that still means it’s not in the Constitution. So maybe Marshall assumed it and it was so taken as a given no one seriously challenged it. But it’s not in the Constitution.

    A future president might, if they have a mind to, disregard a Supreme Court ruling on the grounds that judicial review is unconstitutional. Of course, Jackson did that and suffered no adverse consequences as far as I can tell.

    The force of custom and precedent can be quite strong, but everything has a breaking point.

  19. David A Rego says:

    Wouldn’t it just be easier for AOC and DJT just to “mute” people on twitter? Blocking is really an “in your face” response and you just might have a better argument on harassing speech if the muted party goes through the effort to find out if they’ve been muted:

    If “you feel you simply must know if someone has muted you then here’s how to go about it. Open up Tweetdeck and make a “Home” column for the person you suspect has muted you. If you don’t appear in there, then you’re muted — you can do a tweet to be sure.”

  20. de stijl says:

    @Kathy:

    Settled agriculture created communities worth defending and thus garrisons, and semi-standing callable defensive armies.

    The concept of counterattack obviously previously existed, but a semi-standing force made counterattack and occupation viable.

    People do not realize that we have the sophisticated brains as we possess today for at least 100,000 years. Our ancestors were as smart as us and employed clever tactics.

  21. Kathy says:

    @de stijl:

    There’s what I call the content of people’s brains. why were humans limited to roving gangs of foragers for thousands upon thousands of years? As you say, a stone age primitive was as smart and capable as anyone today. But they lacked enough knowledge, or content, to make much more of their lives.

    I imagine an ancient, long-lived intelligent species watching humanity 10,000 years ago might think “Whoa! They’re making spears with sharpened rock points. Space travel isn’t too far away.”