When the newly-formed Knight Institute decided to bring suit against Trump for blocking people on Twitter, it struck me as the clickbait of lawsuits. It would bring attention to Knight Institute, for sure, but the problem itself was unserious. Trump blocked people on Twitter? Big deal.
The workaround was easy enough to read his twits*, so no one was seriously precluded from seeing anything Trump twitted. As for the interactive aspect, there are a million random people hate-replying to Trump’s bizarre twits. One hundred, even ten thousand, more or less wouldn’t make a difference. It wasn’t a matter of right or wrong, so much as a tempest in a Twitterpot. De minimis non curat lex.
But the case was brought, and Trump lost. The case was appealed, and Trump lost again, this time in the Second Circuit. The ruling held that an account that might otherwise be personal became a government account based on its use for that purpose, turning the account into a “public forum.”
To determine whether a public forum has been created, courts look “to the policy and practice of the government” as well as “the nature of the property and its compatibility with expressive activity to discern the government’s ” Opening an instrumentality of communication “for indiscriminate use by the general public” creates a public forum. The Account was intentionally opened for public discussion when the President, upon assuming office, repeatedly used the Account as an official vehicle for governance and made its interactive features accessible to the public without limitation. We hold that this conduct created a public forum.
While the decision does not make Twitter itself a “public forum,” it makes this account on Twitter a “public forum,” and as such, prohibits viewpoint discrimination. There are implications to this that were neither recognized nor addressed, but this is a Pandora’s Box of collateral issues, and on the same day the decision was issued, former New York Assemblyman Dov Hikind flung the box open and out came Alexandra Ocasio-Cortez.
Hikind, you see, is an orthodox Jew who founded Americans Against Anti-Semitism, and is a staunch supporter of “both domestic and international matters concerning the Jewish people.” He takes issue with the views and policies of the elected representative of the 14th Congressional District of New York. That would be AOC.
@AOC blocked Hikind. Based upon the Second Circuit’s ruling, Hikind sued AOC.
There are, of course, differences between AOC and Trump upon which a line could be drawn. First, she’s merely a congresswoman, which in terms of the Washington power hierarchy is just above restaurant busboy. She has her policy ideas, but can’t issue an @AOC order and make anything happen, as opposed to a president for whom a single twit can impact the lives of millions.
But still, she is one of the elected representatives who gets to propose laws, vote on laws and wield her authority and influence. And like it or not, AOC carries a good deal of influence, particularly among a very passionate cohort.
28. AOC has following of over 4.7 million followers on Twitter.
29. AOC regularly posts political messages of both a public nature. Defendants
twitter page was active with over 17 tweets and re-tweets between July 8, 2019 and July 9, 2019 alone. Each of these tweets involves a public interest and matters of official capacity, such as immigration, climate change, public housing, among other topics. These tweets alone contain over 200,000 likes; 50,000 re-tweets; and approximately 20,000 comments.
Does AOC use her account for political purposes, for the exercise of her governmental position as congresswoman?
If the Account is a forum—public or otherwise—viewpoint discrimination is not permitted. A blocked account is prevented from viewing any of the President’s tweets, replying to those tweets, retweeting them, or liking them. Replying, retweeting, and liking are all expressive conduct that blocking inhibits. Replying and retweeting are messages that a user broadcasts, and, as such, undeniably are speech. Liking a tweet conveys approval or acknowledgment of a tweet and is therefore a symbolic message with expressive content.
Significantly, the parties agree that all of this expressive conduct is communicated to the thousands of users who interact with the Account. By blocking the Individual Plaintiffs and preventing them from viewing, retweeting, replying to, and liking his tweets, the President excluded the Individual Plaintiffs from a public forum, something the First Amendment.
This certainly applies to AOC as well. Unlike the random cranks hate-twitting at Trump among the thousands, maybe millions, of people @ replying to Darth Cheeto, Dov Hikind carries substantial legitimacy based upon his time in the New York State Assembly and his advocacy against anti-Semitism. This doesn’t make Dov right and AOC wrong, but it most assuredly distinguishes his voice in the mix of protected criticism of an elected official. It’s not that Hikind’s First Amendment right is any more protected than a random crank, but that his expression is hardly a trifle.
Does he win based upon this Second Circuit ruling, the ink barely dry?
39. Defendant’s blocking of the Plaintiff from the @AOC account violates the First Amendment because it imposes a viewpoint-based restriction on Mr. Hikind’s participation in a public forum.
40. Defendant’s blocking Plaintiff from the @AOC account violates the First Amendment because it imposes a viewpoint-based restriction on the Mr. Hikind’s access to official statements AOC otherwise makes available to the general public.
41. Defendant’s blocking of the Plaintiff from the @AOC account violates the First Amendment because it imposes a viewpoint-based restriction on the Plaintiff’s ability to petition the government for redress of grievances.
42. Defendant’s blocking of Plaintiff from the @AOC account violates the First Amendment because it imposes a viewpoint-based restriction on the right to hear views expressed.
Based upon the lofty protection of speech on the ironic platform of Twitter, of all places, it would appear so. As Judge Barrington Parker Jr. concluded:
In resolving this appeal, we remind the litigants and the public that if the First Amendment means anything, it means that the best response to disfavored speech on matters of public concern is more speech, not less.
Knight Institute raised the question because what Trump was doing by blocking accounts that annoyed his fragile ego was unconstitutional viewpoint discrimination on the public forum of his Twitter account used for government purposes. Now it will be tested by Dov Hikind’s blocking by AOC to determine whether the Circuit means it or this is just Trumplaw.
*I use the word “twit” instead of “tweet.” This started as a joke years ago, and I decided to drop it as it appeared to bother some people who were slaves to official internet lingo. But when I announced my intention, readers told me to stay the course. I bow to democracy. If the word “twit” bothers you, get over it.