Hours after the Second Circuit Court of Appeals upheld a ruling that ordered President Trump to cease blocking a handful of Americans from viewing his Twitter feed, former New York Assemblyman Dov Hikind filed a lawsuit against Rep. Alexandra Ocasio-Cortez (D-NY), accusing the freshman firebrand of violating his First Amendment rights by blocking him on the social network.
In a complaint filed in Brooklyn federal court, Hikind says Octasio-Cortez, who is widely known as AOC, blocked him on Twitter after he objected to her comparing conditions for migrants at the southern border to “concentration camps.”
In the Trump ruling, three judges ruled unanimously that the President had violated their First Amendment rights, concluding he had excluded the blocked Twitter users from an “otherwise open online dialogue.”
The President’s lawyers had argued that the social media feed in question was a personal one and not an official government one, meaning Trump could bar critics or anyone else as he wished. The court disagreed, however, noting that the overwhelming evidence showed he was using the Twitter account for official business.
In the case of Octasio-Cortez’s account, Hikind argues the same reasoning should apply.
“AOC uses Twitter to make formal announcements, opine on a range of socialmatters both domestic and abroad, endorse candidates, engage with follows of her account, promote Defendant’s agenda, and other matters,” the complaint states, adding that the personal Twitter account in question, @AOC, has nearly 5 million followers, while Octasio-Cortez’s official account, @repAOC, has 171,000.
Octasio-Cortez did not respond to a request for comment from Fortune. Earlier Wednesday, her office told the Washington Post it would not comment on pending litigation.
Hikind, a staunch supporter of the state of Israel who had previously criticized Ocasio-Cortez for what he perceived as anti-Semitic comments, is not the only person to be blocked by the @AOC account. Others cited in the lawsuit include Elizabeth Wheeler, an on-air personality and author, and Harry Cherry, a Jewish journalist. The conservative news site The Daily Caller has also claimed to have been blocked following its criticism of the Congresswoman’s Green New Deal plan.
According to Katie Fallow, a senior staff attorney at the Knight First Amendment Institute, which brought the successful lawsuit against Trump, Octasio-Cortez is poised to lose the lawsuit.
“It does appear she’s been using the account as an extension of her office and a way to conduct government business. If she has blocked people from that account based on their viewpoints, the same principles would apply based on our suit against Trump,” she said.
Fallow added that she hoped Octasio-Cortez would reverse her decision based on her previously expressed principles.
“We’ve seen AOC in the past be an eloquent champion of free speech, and we hope she would reconsider blocking legitimate political discussion.”
Can Politicians Ever Block Social Media Users?
The Second Circuit ruling against President Trump raises the question of whether politicians are obliged to allow anyone to follow them on social media, no matter how abusive or obnoxious.
According to Fallow, the decision makes clear that not every social media account controlled by an elected official will be treated as a public forum, and that an account used just for personal matters will not raise the same Constitutional issues.
A harder question is when obviously political Twitter accounts, like those of Trump and Octasio-Cortez, can block users for valid reasons. In the case of Octasio-Cortez, especially, many of the replies to her tweets contain language that is sexist, racist or threatening. Does she have to permit such people to follow her all the same?
Fallow says the legal issue in this case tips into a grey area. While the First Amendment does not protect speech known as “true threats,” the law is less clear when it comes to harassment or abuse.
She added that politicians could exercise some control over their social media accounts by stating they will exclude certain users for certain behavior, so long as such exclusion is done on a “viewpoint neutral” basis. Fallow noted that staff of the House of Representatives could likely assist them to do so.
An earlier version of this story misspelled the name of Katie Fallow.
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