Alexandria Ocasio-Cortez Apologizes And Unblocks Critic Who Sued Her

from the a-step-in-the-right-direction dept

Right after Donald Trump lost the case against him for blocking people on Twitter, we noted that Dov Hikind, a critic of Rep. Alexandria Ocasio-Cortez launched a similar lawsuit against her for blocking him. Again — because it’s important to repeat — the court rulings in the Trump case made it clear that politicians who used Twitter for part of their job representing the public could not block people, as that’s a violation of the 1st Amendment. The specific criteria laid out by the courts were that (1) if you’re a public official, and (2) using social media (3) for official purposes (4) to create a space of open dialogue, then you cannot block people from following you based on the views they express.

It appeared that the @AOC account met all of the criteria, and therefore should not be able to block critics for expressing their dislike of her stances or policies. Ocasio-Cortez, on her part, stood by her right to block people by claiming that she only blocked 20 people, none were constituents, and that they were only blocked for harassment which, she argued, was “not a viewpoint” (i.e., this wasn’t viewpoint discrimination). Either way, just as the Hikind case was about to go to trial, Ocasio-Cortez has settled the case, admitted she was wrong to block Hikind and apologized:

?Mr. Hikind has a First Amendment right to express his views and should not be blocked for them,? the Queens-Bronx congresswoman said. ?In retrospect, it was wrong and improper and does not reflect the values I cherish. I sincerely apologize for blocking Mr. Hikind.?

The Knight 1st Amendment Institute, which had brought the lawsuit against Trump and had sent Ocasio-Cortez a letter arguing that she was incorrect to block people with her account, announced that they were happy with this result. According to their Senior Staff Attorney, Katie Fallow:

?We applaud Rep. Ocasio-Cortez for recognizing that she was wrong to block critics from her Twitter account. As the courts have affirmed, when public officials use their social media accounts to carry out official duties, they create a public forum and can?t prevent people from participating simply because they don?t like what they?re saying. We hope that other public officials who are blocking critics from their social media accounts take Ocasio-Cortez?s lead.?

That said, while this case was settled and Ocasio-Cortez admitted to being wrong, she still seems to be standing by the idea that she can block some users:

?I reserve the right to block users who engage in actual harassment or exploit my personal/campaign account, @AOC, for commercial or other improper purposes,? she said.

There might be cases where it would not be a 1st Amendment violation to block users, but the details would matter quite a bit — and the argument that harassment, by itself, would constitute a reason for blocking seems iffy, at best. Same with “exploit[ing]” her account “for commercial or other improper purposes.” It will be interesting to see if other such cases are brought, or if the @AOC account choose to block others in the future.

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Comments on “Alexandria Ocasio-Cortez Apologizes And Unblocks Critic Who Sued Her”

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86 Comments
Anonymous Coward says:

Given that she was the one who needed this type of free speech when she was the outsider, it’s now consistent with that that she’s letting the public debate. It’s basically a town hall when politicians use twitter. If they block people, that can cut off a vital part of the discussion.

This also applies to websites who sponsors are related to the discussions, or reviewed. "We ban all negative reviews" shows the problem. If they have a right to do so, customers have a right to believe that censorship makes whatever they read something they cannot trust.

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Mike Masnick (profile) says:

Re: Re:

So this is okay to force a platform to host speech it doesn’t want to.

That’s not what this is at all. This is about a politician, a public official, creating a limited purpose open forum. As such, the 1st Amendment bars them from engaging in any viewpoint discrimination. As the courts have found, that means that politicians cannot block people from their own open forums (designated as the space beneath their social media posts).

It has literally nothing to do with private platforms being forced to host speech.

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Anonymous Coward says:

Re: Re: Re: Re:

Than TRUMP should be able to Block anyone he wants!!! He can’t thanks too the Leftists that forced that point in court, and so it holds true for AOC and everyone else also!!! Can’t have it both ways. Looks like their TRUMP hate backfired. If Trump has to put up with all the leftist TDS hate, then so does AOC which is a fraction of what Trump is getting. Quite frankly, I find it pretty funny.

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That One Guy (profile) says:

Re: Re: Re:2 Re:

The real kicker of course is that if they’re getting caught in the spam filter and that’s delaying the posting(which assumes that there even is a delay and they’re not just lying yet again) the very people they are accusing of trying to ‘block’ them are the ones clearing their comments and allowing them to be posted.

The very fact that their posts are making it through disproves their assertions, which is just a delightful own-goal, but I suppose they’ve been showing how dishonest and/or foolish they are for years at this point so why stop now?

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Anonymous Coward says:

Re: Re: Re:7 Re:

I wouldn’t expect you to understand.

Is it possible, in your world, to try something and to be unsuccessful? Or, if unsuccessful, does that mean you didn’t even try?

Is it a logical conclusion that if I can bypass the blocks that no one is trying to block me? Is that how your logic works?

I miss the Logician, John Fenderson and all the other intelligent non-hypocritical posters that used to post here.

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Anonymous Coward says:

Re: Re: Re: Re:

"Facebook is a publicly owned, private, members only club.
It is open to the public the exact same way a private golf course is open to the public."

I’m not entirely sure exactly what it is you are attempting to communicate here, perhaps if you were to elucidate your concern(s) and make your point(s) in a clear and concise manner.

Anonymous Coward says:

Re: Re: Re:3 Re:

So does Twitter, but that doesn’t make it a private service. If you have two services – Yellow and Purple, let’s say – and both let you generally see some of what’s on the service, but Yellow lets you sign up with little issue and Purple requires an invitation from someone on the service or approval from the owner, why would you ever think Yellow is private?

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PaulT (profile) says:

Re: Re: Re:5 Re:

"What is the difference between a public golf course and a private golf course genius?"

Depends on whether the first one is owned by the government or not. If so, the difference is that the first one is public property and the second private property. If the course itself is owned by private individuals in both cases, then the difference is that the owners have placed different criteria on who they allow on their property, as is their right.

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bhull242 (profile) says:

Re: Re: Re:6 Re:

“Public property” is defined as property that is publicly owned. There is a difference, though, as property is not the only thing that can be publicly owned (e.g. a company or organization).

“Publicly owned” emphatically does not mean “owned by individuals”. In fact, that is the opposite of what it means: “Publicly owned” literally means “owned by the public”. I have no idea where you got that idea from. “Privately owned” means “owned by [private] individuals or non-government entities”.

bhull242 (profile) says:

Re: Re: Re:3 Re:

Publicly owned is not public property.

By definition, publicly owned is public property.

If it is property—tangible or not—owned by anyone at all and it is not owned by the government, then it is private property. Any other property is public property and is owned by the government if it is capable of being owned.

And just to head off this argument, “owned by a publicly traded company” is not the same as “publicly owned”.

Is facebook your ISP?

If by ISP you mean a service that provides internet connections, then no, Facebook is not my ISP. Not that that’s even remotely relevant to this discussion.

In the context of, say, §230, Facebook is an ISP in that it provides a service over the internet that collects and displays user-generated content. It isn’t my ISP as I don’t own it. Though, again, I’m not sure how that’s relevant.

Don’t let Stephen confuse you.

Notwithstanding the fact that he’s been completely right on this subject, Stephen had nothing to do with anything I said. I learned it from Social Studies, the dictionary, and independent research into the relevant laws and concepts. I believe the only one confused here is you.

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Anonymous Coward says:

Re: Re: Re:

Well, Trump was forced to put up with all the leftist HATE on twitter and not ban anyone. There is ZERO difference for AOC or anyone else then. It’s a private platform, I get it, but if it’s going to be used by politicians, then I guess it either has to ALL be allowed, or all be BANNED. That means if you ban TRUMP, you ban every single other Politician on that platform including AOC. Then you don’t have to worry about that court ruling.

PaulT (profile) says:

Re: Re: Re:2 Re:

Yes, but the decision should come from the government and not Twitter. If a vote is passed through saying "only the following forms of communication are acceptable for official government business", and that list does not include Twitter, there will be complaining but at least everyone’s on the same level. If the decision comes from Twitter, you can bet there will be a lot of complaining, followed swiftly by Trump’s army of morons gathering around a different social network as their outlet, and we’re back to square one.

PaulT (profile) says:

Re: Re: Re: Re:

"Well, Trump was forced to put up with all the leftist HATE on twitter and not ban anyone."

Because he uses his account to host official government communications. However, Twitter were not forced to do anything at all.

"There is ZERO difference for AOC or anyone else then"

Yes, which is what the above decision confirms.

Yet again, you seem to have a major problem addressing what the article and comments actually say, rather than the version you wish existed.

Bruce C. says:

Muting vs. Blocking...

I also wonder about the distinction between blocking (i.e., removed from followers and/or unable to tag @aoc in tweets) and muting (he can post whatever he wants, but AOC filters them out of her feed). First amendment grants free speech but doesn’t require people to actually listen. Otherwise protests at the capitol would be handled quite differently from the way they are.

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PaulT (profile) says:

Re: Re: 'No one can hear you on my page' vs 'Only I can't hear you.'

"blocking isn’t allowed due to him being a member of the government"

It’s always worth clarifying – the issue with Trump was not that he was a member of government. The problem was that he started using his personal Twitter account as a means to announce policy and communicate government business. Blocking people there then means that they are unable to read official public government communications, and they are unable to air grievances in return.

If he had kept to the official @POTUS for government business and carried out his childish tweet rants on his own account, there may not have been a problem. But, once the White House confirmed that the personal account was considered an official channel, it has to be treated the same as any other – which means no blocking people because you disagree with them politically.

Thad (profile) says:

Re: Re: Re: 'No one can hear you on my page' vs 'Only I can't hear y

If he had kept to the official @POTUS for government business and carried out his childish tweet rants on his own account, there may not have been a problem.

Maybe, if he’d kept his childish tweet rants to topics like Kristen Stewart and Robert Pattinson. But a significant number of those rants concern the presidency, Congress, and other governmental affairs, so I think the court would have determined that the account is used for official government business even if the White House hadn’t said as much.

PaulT (profile) says:

Re: Re: Re:2 'No one can hear you on my page' vs 'Only I can't he

Possibly, but I think there’s a fine line. He could rant all he wants about whether he just watched on Fox News or saw in a public hearing without causing issues. It’s classless and paints the whole country in a bad light, but him expressing such things are not necessarily any different from you or I doing so (albeit with greater potential consequences)

It’s when he starts revealing potentially sensitive information or discussing actual policy decisions that it becomes problematic. That’s where it crosses from "this guy, who happens to be the president, has this opinion stated here" and "the president is communicating official government business with this channel". May your next president again be someone where the difference is clear.

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Thad (profile) says:

Re: Re: Re:3 'No one can hear you on my page' vs 'Only I can'

Possibly, but I think there’s a fine line. He could rant all he wants about whether he just watched on Fox News or saw in a public hearing without causing issues.

Maybe, but I don’t think so. Your read is a valid read of the court opinions, given that they spend a lot of time looking at things like Trump’s use of Twitter for official functions such as hirings and firings and statements to foreign leaders, White House staff’s use of the Twitter account, and plain statements that Trump’s statements on his personal account are official presidential statements. All that stuff is certainly important. But I think even the lower threshold of simply discussing government business would still be enough to classify his account as a limited public forum. From the opinion (pages 4-7):

President Trump established his account, with the handle @realDonaldTrump, (the “Account”) in March 2009. No one disputes that before he became President the Account was a purely private one or that once he leaves office the Account will presumably revert to its private status. This litigation concerns what the Account is now. Since his inauguration in January 2017, he has used the Account, according to the parties, “as a channel for communicating and interacting with the public about his administration.” App’x at 54. The President’s tweets from the Account can be viewed by any member of the public without being signed into a Twitter account. However, if a user has been blocked from the Account, they cannot view the Account’s tweets when logged in to their account. At the time of the parties’ stipulation, the Account had more than 50 million followers. The President’s tweets produce an extraordinarily high level of public engagement, typically generating thousands of replies, some of which, in turn, generate hundreds of thousands of additional replies. The President has not generally sought to limit who can follow the Account, nor has he sought to limit the kind of speech that users can post in reply to his tweets.

The public presentation of the Account and the webpage associated with it bear all the trappings of an official, state run account. The page is registered to Donald J. Trump “45th President of the United States of America, Washington 14 D.C.” Id. at 54-55. The header photographs of the Account show the President engaged in the performance of his official duties such as signing executive orders, delivering remarks at the White House, and meeting with the Pope, heads of state, and other foreign dignitaries.

Following that, the court does go into several paragraphs of detail regarding White House staff and the National Archives stating outright that Trump conducts official government business on his Twitter account. That certainly helps Knight’s case, but it’s not necessary to it; Trump discussing government business on the Twitter account in and of itself would have been enough to qualify it as a limited public forum.

Here’s more, from later in the opinion (page 18, following further discussion of the points you mention about the government repeatedly acknowledging the account as official):

Second, since becoming President he has used the Account on almost a daily basis “as a channel for communicating and interacting with the public about his administration.” Id. at 54. The President utilizes White House staff to post tweets and to maintain the Account. He uses the Account to announce “matters related to official government business,” including high-level White House and cabinet level staff changes as well as changes to major national policies. Id. at 56. He uses the Account to engage with foreign leaders and to announce foreign policy decisions and initiatives. Finally, he uses the “like,” “retweet,” “reply,” and other functions of the Account to understand and to evaluate the public’s reaction to what he says and does. In sum, since he took office, the President has consistently used the Account as an important tool of governance and executive outreach. For these reasons, we conclude that the factors pointing to the public, non-private nature of the Account and its interactive features are overwhelming.

There’s more in the lower court ruling. Pages 53-55 (note that page 54 is cited in the above quotes of the appellate opinion):

In assessing whether speech constitutes government speech as opposed to private speech, the Supreme Court has considered at least three factors: whether government has historically used the speech in question “to convey state messages,” whether that speech is “often closely identified in the public mind” with the government, and the extent to which government “maintain[s] direct control over the messages conveyed,” with Walker’s application of these factors “likely mark[ing] the outer bounds of the government-speech doctrine.” Matal v. Tam, 137 S. Ct. 1744, 1760 (2017) (quoting Walker, 135 S. Ct. at 2246-49); see also Wandering Dago, 879 F.3d at 34 (distilling the same three factors from Walker).

Based on the government speech doctrine, we reject out of hand any contention that the content of the President’s tweets are susceptible to forum analysis. It is not so susceptible because the content is government speech: the record establishes that the President, sometimes “[w]ith the assistance of Mr. Scavino,” uses the content of his tweets “to announce, describe, and defend his policies; to promote his Administration’s legislative agenda; to announce official decisions; to engage with foreign political leaders; to publicize state visits; to challenge media organizations whose coverage of his Administration he believes to be unfair; and for other statements, including on occasion statements unrelated to official government business.” Stip. ¶ 38. Indeed, the content of the tweets sent by @realDonaldTrump are solely the speech of the President or of other government officials. Stip. ¶ 39. For the same reason, the account’s timeline, which “displays all tweets generated by the [account]” is not susceptible to forum analysis: the timeline merely aggregates the content of all of the account’s tweets, Stip. ¶ 15, all of which is government speech.

Note that other officials’ use of the account, his use of the account to engage with foreign leaders, and his official announcements on the account are only some of the factors used to determine that @realDonaldTrump is a public forum, and that other factors include defending his policies, promoting his legislative agenda, and criticizing his coverage by the press.

So I don’t agree with your conclusion that he would have been fine if he’d stuck to ranting about what he just saw on Fox News or in a public hearing. If he were ranting about, for example, the Mueller Investigation, the wall, his tax and healthcare policy — all of those things are directly related to his position as President of the United States. Do you really think that if he’d posted about those topics but the White House had denied that these were official statements, the courts would have ruled differently?

If he had a Twitter account where all he posted was cat videos, then sure, he could block whoever he wants. But he’s talking about government business in his capacity as an elected official.

PaulT (profile) says:

Re: Re: Re:4 'No one can hear you on my page' vs 'Only I

That’s all true, I just think it was untested and it wasn’t really controversial until he started announcing government business on there. It’s a weird issue because most previous presidents were statesmen enough to keep their private opinion out of things, but with the toddler in chief we do have to deal with things differently it seems.

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Anonymous Coward says:

Re: The real story here is that she APOLOGIZED

She was forced to admit she was wrong, while at the same time saying it’s still OK to ban other users she doesn’t like!!! She is talking out of both sides of her mouth. She is NO leader. She is dumb as a rock. She shouldn’t have been banning anyone after TRUMP was forced to stop banning people. That was because these leftists forced it in court and won. Then after winning, doing it themselves. I find that disgusting and hypercritical of AOC.

btr1701 (profile) says:

Re: Re: Re: The real story here is that she APOLOGIZED

She can legally block any user on Twitter that isn’t one of her constituents.

Baloney. There’s nothing in the 1st Amendment that limits a person’s right to redress the government for their grievances to only the member of Congress that represents them.

Every member of Congress votes on and passes legislation that affects every citizen in the country. Therefore every citizen has a 1st Amendment right to address them with their concerns.

If the government of Texas banned anyone but Texas residents from protesting an abortion law (or a gun law or a climate change law or whatever), and arrested anyone from out of state who showed up to a protest, that would be wildly unconstitutional, yet that’s exactly what you’re arguing for here.

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Bergman (profile) says:

Commercial speech

Imagine what would happen if someone were to stand up in the middle of a town meeting — or the gallery overlooking the Senate — and start shouting an advertisement for genital enlargement.

They would be escorted out and not allowed back in so long as they insisted on shouting their ads. AOC absolutely could do the same with her social media accounts.

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Anonymous Coward says:

Re: Commercial speech

That wouldn’t be completely analogous either, as you don’t hit "block" on a scurillious spammy post in your feed, you hit "report as spam" instead as simply blocking a spammer leaves the service bereft of the fact there’s a spammer on the loose in your feed, meaning they can’t adjust their anti-spam algorithms to catch that spam next time.

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Anonymous Coward says:

Re: Re: Commercial speech

They literally don’t block nazis until it becomes a pr nightmare. This is even with proof of abusive language, threats and more. So this isn’t a mistake that people resort to blocking like AOC who gets a ton of vitriol. Mike Masnick is a standard first amendment troll honestly.

Anonymous Coward says:

Re: Re: Re: Commercial speech

god

I can’t tell if you believe the crap you’re spewing.

Real Nazi’s and the first amendment can’t exist in the same regime. You can either have the right to religion and assembly or you can have illegal Jews and illegal synagogues. You can’t have both.

You are apparently some kind of fascist troll for equating human rights for repugnant groups with endorsing repugnant groups.

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Anonymous Coward says:

Re: Re: Re:2 Commercial speech

You can have NAZI’s and they are protected by the first amendment just like everyone else is. They can SAY all the nasty stuff they want. They just can’t act on the things they may be saying.. It’s against the law for anyone to put people in a gas chamber and kill them as an Example. Just like the KKK can say whatever they want. They just can’t hang Black people, or any other type of action against anyone as that would be breaking the law. But they have every right to say what they want and are protected under the 1st amendment.

There are no HATE Speech laws here. Thank goodness for that. These dumb laws are used to throw people into jail in other countries for dumb things. Maybe you’re not worried NOW, but some new party gets in office and puts out their own things that ar Hate Speech to them, and now your butt is in jail!!! Ops!!!!!

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PaulT (profile) says:

Re: Re:

"Are you free speech advocates only intolerant of nazis?"

Nope, they’re just the most obvious example of indefensible naked hatred. The fact that you apparently think that having your idiotic opinions hidden is worse than the slaughter of millions of innocent people is just an example of wilful stupidity, and thinking people tend to be pretty intolerant of that as well.

bhull242 (profile) says:

Re: Re:

Strange. I seem to recall the Nazis did a lot more than making some speech hidden from immediate view but being easy to find if you have even the slightest desire to see what was hidden. For one thing, I’m pretty sure that they killed or imprisoned dissidents; I don’t recall that ever happening here.

So even if you’re right about us being hypocritical about free speech, I’m not sure how you could think that we’re remotely close to the Nazis by any measure.

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