New York congresswoman is the latest politician to face lawsuit over First Amendment issues on social media
Rep. Alexandria Ocasio-Cortez is set to testify in Brooklyn federal court on Tuesday in support of a cause of growing importance to politicians in the internet age: .
One of Congress’s most influential voices on the progressive left, Ms. Ocasio-Cortez has amassed a huge and ardent audience of fans and detractors on Twitter, with more than 5.7 million followers. Like President Trump, the freshman Democrat representing Queens and the Bronx has banned a few followers from her personal Twitter account—@AOC—and faces a First Amendment lawsuit as a result.
Ms. Ocasio-Cortez’s case is the latest in a burgeoning number of lawsuits challenging the right of elected leaders to curate their social-media audience and censor their toughest critics. Already Mr. Trump, Ms. Ocasio-Cortez, at least two governors and other local government figures face similar First Amendment lawsuits.
The Constitution restricts government regulation of private speech, protecting against the exclusion of voices in public spaces on the basis of viewpoint. Like other politicians, Ms. Ocasio-Cortez argues in court papers that her @AOC handle is essentially a private soapbox outside the control of government and fundamentally different from her official accounts, @repAOC.
Ms. Ocasio-Cortez is being sued by Dov Hikind, a former Democratic state assemblyman from New York City.
Mr. Hikind had repeatedly assailed Ms. Ocasio-Cortez for likening southern border detention centers to concentration camps. On July 5, replying to one of her tweets, he said: “You’re actually a liar. It’s been proven.”
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Three days later, Ms. Ocasio-Cortez blocked Mr. Hikind, who represented Brooklyn’s Borough Park before founding a nonprofit group that advocates against anti-Semitism. He sued her the next day.
“In an effort to suppress contrary views, [Ms. Ocasio-Cortez] has excluded Twitter users who have criticized AOC and her positions as a Congresswoman via ‘blocking,’” his lawsuit stated, using Ms. Ocasio-Cortez’s nickname based on her initials. “This practice is unconstitutional and must end.”
Getting blocked
limited his ability to view her account,
reply to her posts and
engage in discussions with other users about her tweets.
On the internet, Ms. Ocasio-Cortez defended her social-media policy as justified self-protection.
Without referring to Mr. Hikind, she tweeted in August that she has blocked under 20 accounts “for ongoing harassment” and never censored one of her own constituents. Those users, she wrote, “do not have the right to force others to endure their harassment and abuse.”
Mr. Hikind says none of his tweets could be considered harassment.
Before making any ruling, U.S. District Judge Frederic Block scheduled a hearing Tuesday to hear directly from Ms. Ocasio-Cortez about her reasons for blocking Mr. Hikind.
Ms. Ocasio-Cortez’s office declined to comment.
Ms. Ocasio-Cortez’s court appearance plunges Twitter into another content controversy, on the heels of Twitter’s announcement last week that it will ban political ads.
Twitter rules point to the frequent difficulty of distinguishing between harassment and what it calls “consensual conversation.” Its user policies forbid harassment and other behavior that is intended to artificially amplify information or that “manipulates or disrupts people’s experience on Twitter.”
Twitter declined to comment. It is a member of the Internet Association, Silicon Valley’s policy and lobbying umbrella, which in a related case urged the courts against making any far-reaching ruling that could interfere with its control over customer accounts. The association didn’t take a position on the main question: whether a government official blocking Twitter users violates the First Amendment.
Columbia University’s Knight First Amendment Institute, a nonprofit that promotes free speech, disagrees with Ms. Ocasio-Cortez, arguing that her @AOC account is an extension of her office, used to explain policy proposals, solicit public comment on government issues and advocate for legislation.
The most high-profile ruling came in July, when the Second U.S. Circuit Court of Appeals in New York ruled that Mr. Trump violated the First Amendment when he blocked Twitter users who criticized the president and his policies.
“The First Amendment does not permit a public official who utilizes a social media account for all manner of official purposes to exclude persons from an otherwise‐open online dialogue because they expressed views with which the official disagrees,” wrote Circuit Judge Barrington D. Parker in the 3-0 ruling.
The Justice Department, which represented Mr. Trump, had argued that @realdonaldtrump was a private platform for his own personal speech.
The First Amendment law is the same whether the defendant is Mr. Trump or Ms. Ocasio-Cortez, said constitutional scholar Erwin Chemerinsky, dean of the law school at the University of California, Berkeley.
“There may be an argument here that it was a private account and not used for government business,” he said. “But that is a factual question and not a First Amendment issue.”
Not all plaintiffs in these cases have prevailed. A federal judge last year refused to grant an injunction against Kentucky Republican Gov. Matt Bevin who blocked hundreds of people from his Twitter and Facebook sites.
The idea that proponents of greater electoral equity have to quiet down because we live in a ‘republic’ is absurd.
It’s worth asking where this quip — “we’re a republic, not a democracy” — even came from. Nicole Hemmer, a historian of American politics and the author of “Messengers of the Right: Conservative Media and the Transformation of American Politics,” traces it to the 1930s and 40s. “When Franklin Roosevelt made defending democracy a core component of his argument for preparing for, and then intervening in, the war in Europe, opponents of U.S. intervention began to push back by arguing that the U.S. was not, in fact, a democracy,” she wrote in an email.
One Roosevelt opponent, for example — Boake Carter, a newspaper columnist who supported the America First Committee (which opposed American entry into World War II) — wrote a column in October 1940 called “A Republic Not a Democracy,” in which he strongly rebuked the president for using the word “democracy” to describe the country. “The United States was never a democracy, isn’t a democracy, and I hope it will never be a democracy,” Carter wrote.
The term went from conservative complaint to right-wing slogan in the 1960s, when Robert Welch, the founder of the John Birch Society, used it in a September 1961 speech, “Republics and Democracies.” In a democracy, Welch protested, “there is a centralization of governmental power in a simple majority. And that, visibly, is the system of government which the enemies of our republic are seeking to impose on us today.”
“This is a Republic, not a Democracy,” Welch said in conclusion, “Let’s keep it that way!”
These origins are important. If there’s substance behind “We’re a republic, not a democracy,” it’s not as a description of American government. There’s really no difference, in the present, between a “republic” and a “democracy”: Both connote systems of representation in which sovereignty and authority derive from the public at large.
The point of the slogan isn’t to describe who we are, but to claim and co-opt the founding for right-wing politics — to naturalize political inequality and make it the proper order of things. What lies behind that quip, in other words, is an impulse against democratic representation. It is part and parcel of the drive to make American government a closed domain for a select, privileged few.