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.