Comments on the Hikind v. Ocasio-Cortez Lawsuit Over AOC’s Twitter Blocks

July 16, 2019 · by Eric Goldman · in Content Regulation

The same day as the Second Circuit’s Knight First Amendment v. Trump ruling, Rep. Ocasio-Cortez was sued for blocking accounts on Twitter. See Hikind v. Ocasio-Cortez, 1:19-cv-03956 (E.D.N.Y. complaint filed July 9, 2019). The same-day turnaround on the complaint suggests that the lawsuit was planned well in advance–perhaps as a way of spiking the news cycle about Trump’s unconstitutional behavior with a countermessage. Given our highly charged partisan environment, how you feel about the lawsuit against AOC probably depends on your respective feelings towards Trump and Rep. Ocasio-Cortez. Despite that, censorship isn’t a partisan issue, so any legal decision won’t turn on those feelings, no matter how strongly you feel them. So here’s my brief attempt to provide a dispassionate analysis of the issue:

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I start with the presumption (established by the Knight First Amendment v. Twitter ruling) that the highly active social media account of a government official is an official government account, making its comments a public forum. Thus, any blocks by that account presumptively are unconstitutional censorship.

In AOC’s case, she has two defenses available to her that weren’t available to Trump.

(1) She could try to argue that her account is personal, not official, a point Trump essentially conceded (for good reason). In AOC’s case, I doubt that argument will work either, but the facts about the personal nature of her Twitter account are slightly better than Trump’s.

(2) She could argue that the plaintiff engaged in bad conduct that justified his exclusion from the public forum. Trump couldn’t argue this because he conceded he banned accounts solely because they criticized him. I don’t know what the plaintiff said in his response to AOC’s tweets, so I don’t yet know if she has a viable argument here.

Though it won’t matter to the legal conclusion, I would note that AOC differs from Trump in one other way. Despite Trump’s mockable claims that he experiences “presidential harassment” (something he dishes out far more than he suffers), there’s no doubt that the online harassment of an outspoken woman of color is way worse than anything ever experienced by any white male. In that context, her blocks are more understandable than Trump’s thin-skinned response.

Still, based on what we know now, I think the most likely legal outcome is that AOC engaged in unconstitutional censorship, just like Trump did. To be clear, I’d say that about any government official who advanced their job using their social media account yet blocked people from that account. As a result, I think the problem is rampant throughout every level of government right now.

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Comments on the Hikind v. Ocasio-Cortez Lawsuit Over AOC’s Twitter Blocks

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