First Test of 2d Circuit’s Twitter Ruling? @AOC

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.

25 thoughts on “First Test of 2d Circuit’s Twitter Ruling? @AOC

  1. TinMan

    Trash if appropriate and apologies for a potentially incorrect layman’s analysis:
    I think I understand why blocking by the current PotUS account could be a plausible 1A violation; the office represents “all citizens” and the commentary presented would impact everyone. Thus denying anyone the opportunity to participate in such a forum is a direct violation.

    However, could following the same logic, only narrower in terms of audience, indicate AOC’s account being only a public forum for those she represents?

    IOW, would a dismissal for lack of standing be appropriate if Hikind isn’t represented by AOC?

    Reply
    1. phv3773

      AOC sits on the House Committee on Oversight and Reform, and in particular on the Subcommittee on Civil Rights and Civil Liberties. I think that argument is a non-starter.

      Comments are the entropy of the internet: chaotic and inevitable. The saving grace is that no one actually has to read them.

      Reply
      1. TinMan

        Thank you for referencing committee memberships as that would certainly “loop in” other aspects of their forum impacting more than their constituents. I had forgotten about that aspect of their roles in Congress.

        Looks like some folks will get to register new Twitter handles in the near future if they want to block individuals for their comments.

        Reply
  2. Cinnamongirl

    The first amendment should be protected at all costs period, end of sentence. AOC does not get a pass nor should she.

    Reply
  3. Richard Kopf

    SHG,

    Forgive me for writing about me (insert snark of choice), was Hercules and the umpire a public forum?

    All the best.

    RGK

    Reply
    1. LocoYokel

      Not going speculate whether or not it was, but a question for you.

      Did you distribute rulings or public policy statements from there or was it just the musings and opinions of a private individual who also happened to be a lawyer and federal judge?

      Reply
      1. Richard Kopf

        LY,

        I was very careful not to discuss specific rulings that I had made (unless they were long ago and there was no possibility of them coming back). Additionally, I did not make public policy statements in the sense of me speaking for the government. I once erred when commenting upon Senator Cruz’s attack on the Supreme Court and made statements about his suitability to become President. When I wrote about his suitability to become President that was prohibited under the Code of Conduct for United States Judges and when a case was called to my attention by Professor Kerr I acknowledged my error and apologized.

        Furthermore, in two of the banner buttons of the blog, two things were made explicit:

        1. “Finally, and to restate, nothing I write is intended to comment upon pending or impending judicial matters regarding my day job as a federal trial judge.”

        2. “After reading an opinion from an appellate court about a blogging lawyer, I want to make something very clear. I write for myself alone and, most particularly, in my individual capacity only. Got that. Good.”

        All the best.

        RGK

        Reply
        1. LocoYokel

          Being a simple groundling, I would think that you just answered your question there. But not being a Genius Constitutional Lawyer I cannot be sure of that.

          Reply
  4. Raccoon Strait

    What happens to the ‘public forum’ if someone is not re-elected? Does this mean that we now have 537 public forums on Twitter now, or should we include all the departments and sub-departments and agencies? Wait, how about state and local governments? Is the number of ‘public forums’ exponentially expanded to every elected official in the land, along with all of their departments and agencies? Will someone be required to maintain a list of ‘public forums’ that will change with some regularity as elections happen and agencies are created and disbanded?

    One more question. Is it possible for someone who has created a ‘public forum’ because they used their Twitter account for political purposes or actual governing to also have a private twitter account (not that I can see a reason why they would want to) that is not used by the account owner for political or governing purposes, and what is to stop users from using that supposedly ‘private’ account for political or governing purposes?

    This can’o’worms is likely to stink to high heaven before it is laid to rest and buried very deeply.

    Reply
    1. SHG Post author

      There are many more questions raised than answered, which is one of the great many reasons why lawfare isn’t always the best way to address social issues. Courts only “legislate” to the extent they deem necessary (or convenient, as the case may be), and leave the rest of us floundering in their half-baked rulings.

      Reply
  5. B. McLeod

    AOC has been specifically touting her social media following in her public scuffle with Pelosi, so she has clumsily played right into this.

    Reply
  6. Kathryn Kase

    Judge Parker found that individuals paid by the U.S. government manage President Trump’s account on government time. That government money is being used to maintain a media account through which the President communicates is an essential part of the public forum finding. If Congresswoman Ocasio-Cortez also uses government funds — as opposed to using solely campaign funds — to manage her Twitter account, a court is likely to rule that her account is a public forum.

    Reply
    1. SHG Post author

      Was that the critical part of the holding, that Trump had a social media guy on the payroll, that distinguished Trump’s twitter from all other government officials using twitter? Or is that a secondary detail, maybe even dicta, used to bolster the outcome and not the critical holding at all?

      It could well end up being the way the Second Circuit distinguishes Trumplaw, since it’s unlikely the 436 plus other government officials who use social media for their political purposes have a paid social media advisor, such that no one but Trump will be affected.

      Reply
      1. Jeff

        Maybe I was led astray with a thousand opinion pieces at the time, but it was my understanding that what differentiated Trump was the fact that he was using his Twitter account for official purposes, i.e. announcing public policy. To do so would (in theory, since there are obvious workarounds) prevent the people from knowing of changes that might impact their lives.

        I don’t even use twitter any longer so I can’t say whether AOC uses her twitter account as an official vehicle for governance. Can she even do so, in her capacity? This appears to be the point upon which this the suit will pivot. Or may, since I’m not Parker Jr.

        Reply
      2. szr

        I would be disappointed if the Second Circuit distinguishes between Trump’s case and AOC’s on the basis of the social media guy.

        Given that the Court pointed to many details for why Trump’s twits were a public forum (e.g., official announcements of high-level appointments; policy proposals; mix with WH operations), but never pointed to a single detail as the necessary/sufficient one, how could Dove be on notice that his case against AOC isn’t viable? This is especially true since AOC uses twitter in a similar way as Trump, and is also a government official.

        I don’t think the Second Circuit will distinguish a AOC case on such a thin reed. But then again, life is full of disappointments.

        Reply
        1. SHG Post author

          There’s nothing in the decision to suggest that it’s any more than a collateral detail in support of the holding, but then, given Trumplaw, there’s always the need to come up with some distinction, no matter how trivial, to make sure it applies only to Trump and no one else.

          Reply
      3. Zack

        When I was last living and working in DC in 2014, members of Congress generally had staffers do some to all of their social media drafting and posting for them. So, unlikely to find a distinction there. (Not to mention the members are paid by the government.)

        Reply
  7. Jonathan Levy

    The real fun is going to come over what is a reasonable manner restriction of commenting on Twitter.

    Reply

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