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First Amendment issues with Ocasio-Cortez, Trump blocking critics



Democratic Rep. Alexandria Ocasio-Cortez has found herself in the middle of a legal firestorm over the past few months stemming from her decision to block people on Twitter who have criticized or harassed her.

The latest salvo came on Thursday, when Columbia University’s Knight First Amendment Institute sent Ocasio-Cortez a letter saying she was violating the Constitution by blocking her critics from her personal Twitter account with the handle, @AOC.

The institute said in the letter that it was writing to the New York congresswoman “in the hope of dissuading” her from blocking Twitter users, which the organization says violates the First Amendment because her @AOC Twitter account is a “public forum.”

“Many of your tweets staking out positions on issues such as immigration, the environment, and impeachment have made headline news,” the letter said. “The @AOC account is important to you as a legislator, to your constituents, and to others who seek to understand and influence your legislative decisions and priorities.”

Ocasio-Cortez responded to the letter on Twitter and said she has over 5 million followers and only has 20 accounts blocked for “ongoing harassment.”

She added that none of the blocked users were her constituents.

Read more: Alexandria Ocasio-Cortez blocked a conservative news outlet on Twitter, and legal experts say that could be unconstitutional

“Harassment is not a viewpoint,” Ocasio-Cortez wrote. “Some accounts, like the Daily Caller, posted fake nude photos of me & abused my comments to spread it. No one is entitled to abuse.”

“People are free to speak whatever classist, racist, false, misogynistic, bigoted comments they’d like,” the congresswoman continued. “They do not have the right to force others to endure their harassment and abuse.”

For some lawmakers, blocking critics on social media is common

It’s not uncommon for politicians — at all levels — to block their critics on social media.

ProPublica sent letters in 2017 to all 50 governors and 22 federal agencies asking whether they had blocked people on social media. Five Republican governors, four Democratic governors, and four agencies responded affirmatively and provided the information for people they’d blocked. Over half of the governors and several agencies did not respond to ProPublica’s questions.

The dominance of social media, as well as politicians’ increasing use of digital platforms to spread their messaging, means they’ve also seen significant pushback. After Rep. Peter King of New York blocked dozens of constituents from viewing his official Facebook page for criticizing him, the New York Civil Liberties Union threatened to sue King if he didn’t reverse course.

As a result, King created a new Facebook page in May that he said would be his official page, and that he would not block people from viewing it.

Similarly, Ocasio-Cortez’s lawyers say that her @AOC handle is not her official government account and is therefore not subject to the same rules as her government account is.

But it’s unclear whether a court would side with that argument.

Rep. Alexandria Ocasio-Cortez, D-N.Y., speaks at a news conference with Democratic presidential candidate, Sen. Bernie Sanders, I-Vt., to call for legislation to cancel all student debt, at the Capitol in Washington, Monday, June 24, 2019.
J. Scott Applewhite/AP

A court would be unlikely to accept Ocasio-Cortez’s argument at face value

In perhaps the most prominent case on this issue so far, the US Court of Appeals for the Second Circuit ruled recently that President Donald Trump violated the First Amendment by blocking users from his personal Twitter account, @realDonaldTrump because he “disagree[d] with their speech.”

Lisa S. Hoppenjans, the Director of the First Amendment Clinic at the Washington University School of Law, told Insider the crux of the matter in Ocasio-Cortez’s case is the question of whether she’s acting in her capacity as a member of Congress when she blocks users from her @AOC Twitter account.

While she can argue that she’s within her rights to block users because it’s her personal account, Hoppenjans said it’s unlikely a court would accept Ocasio-Cortez’s argument on this at face value and would instead “examine whether in reality the account is used for government purposes.”

Read more: Trump campaign attacks ‘Crazy’ Alexandria Ocasio-Cortez’s call to abolish the Electoral College — but Trump has demanded the same thing

A court will consider, for instance, “how the official and others in her office have described the account, whether the official is using the account to announce and solicit comments on government business, and whether employees of the official’s government office are also involved in managing or controlling the account,” Hoppenjans added.

The @AOC account is a major part of Ocasio-Cortez’s work as a member of Congress

To be sure, Ocasio-Cortez is a prolific Twitter user and tweets primarily from her personal account. She’s used it to share information about congressional hearings, discuss legislation, engage in substantive debates on policy issues, and invite input on legislative matters.

Clay Calvert, the Director of the Marion B. Brechner First Amendment Project at the University of Florida, told Insider that “to the extent that the Congresswoman is blocking people based on their negative viewpoints about her, no matter how offensive or disagreeable they may be, that clearly amounts to precisely the kind of unconstitutional viewpoint discrimination by a government official that the appellate court deemed wrong in the case against Donald Trump.”

“Unless hateful speech rises to a true threat of violence or amounts to fighting words, it is going to be protected under the First Amendment,” he said.

Hoppenjans agreed, saying the First Amendment would not prevent Ocasio-Cortez from blocking someone because they posted comments that were “true threats.”

“But she can’t block individuals because she disagrees with the views they expressed,” Hoppenjans said.

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