The Silha Center Bulletin

Fall 2019: Volume 25, No. 1

Politicians Continue to Confront Issues in Blocking Social Media Users; Minneapolis Enacts New Social Media Policy

Throughout the second half of 2019, politicians continued to confront issues stemming from blocking constituents on social media. On July 9, Republican congressional candidate Joseph Saladino and former New York Assemblyman Dov Hikind filed separate lawsuits against U.S. Rep. Alexandria Ocasio-Cortez (D-N.Y.) for blocking them from her @AOC Twitter account, contending that it amounted to viewpoint-based discrimination in violation of the First Amendment. On Nov. 4, 2019, Ocasio-Cortez reached a settlement with Hikind. Meanwhile, the Minneapolis City Council unanimously voted on July 25, 2019 to enact a policy requiring city officials to use only monitored city social media accounts to conduct city business and prohibiting city officials from blocking constituents.

Previously, on July 9, 2019, the U.S. Court of Appeals for the Second Circuit ruled that President Donald Trump could not block Twitter users from his personal account, reasoning that he had created a public forum and that blocking users who criticized him or his policies constituted viewpoint-based discrimination in violation of the First Amendment. Knight First Amendment Institute v. Trump, 928 F.3d 226 (2nd Cir. 2019). Judge Barrington D. Parker wrote the unanimous opinion and noted “not every social media account operated by a public official is a government account” and that the outcome of future decisions will be “informed by how the official describes and uses the account; to whom features of the account are made available; and how others, including government officials and agencies, regard and treat the account.” (For more information on the Second Circuit’s ruling, see “Second Circuit Rules President Trump Violated the First Amendment By Blocking Twitter Users” in the Summer 2019 issue of the Silha Bulletin.)

Additionally, on Jan. 7, 2019, the Fourth Circuit held that defendant Phyllis Randall, Chair of the Loudoun County (Va.) Board of Supervisors, engaged in viewpoint-based discrimination by blocking plaintiff Brian Davison, a community activist, from a public Facebook page, violating his First Amendment rights. Davison v. Randall, 912 F.3d 666 (4th Cir. 2019). (For more information on the Fourth Circuit’s ruling, see Fourth Circuit Holds Local Official Violated the First Amendment By Blocking a Facebook User from an Official Page in “Fourth Circuit and Western District of Wisconsin Rule Public Officials Violated the First Amendment By Blocking Social Media Users” in the Winter/Spring 2019 issue of the Silha Bulletin.)

Ocasio-Cortez Sued For Blocking Two Users From Twitter Account, Reaches Settlement in One Case

On July 9, Republican congressional candidate Joseph Saladino and former New York Assemblyman Dov Hikind filed separate lawsuits in the U.S. District Court for the Eastern District of New York against U.S. Rep. Alexandria Ocasio-Cortez (D-N.Y.) for blocking them from her @AOC Twitter account. Saladino v. Ocasio-Cortez, 1:19-cv-06334 (E.D.N.Y. 2019); Hikind v. Ocasio-Cortez, 1:19-cv-03956 (E.D.N.Y. 2019). On Nov. 4, 2019, Ocasio-Cortez reached a settlement with Hikind while the Saladino case remained ongoing.

Both Hikind’s and Saladino’s lawsuits asserted that Ocasio-Cortez’s blocking constituted viewpoint-based discrimination, reasoning that it is “unconstitutional for a political figure to ‘engage in viewpoint discrimination by utilizing Twitter’s blocking function to limit certain users access to [a] social media account, which is otherwise open to the public at large, because [they] disagree with their speech,’” citing Knight First Amendment Institute v. Trump, 928 F.3d 226 (2nd Cir. 2019).

The complaints further argued that Ocasio-Cortez’s active Twitter account constituted a public forum, again citing Knight First Amendment Institute. Hikind’s lawsuit specifically argued that the “manner in which [Ocasio-Cortez] uses the @AOC Twitter account makes it a public forum under the First Amendment.. . . [She] uses Twitter to make formal announcements, opine on a range of social matters both domestic and abroad, endorse candidates, engage with follows of her account, promote Defendant’s agenda, and other matters.” Hikind’s full complaint is available online at: https://www.scribd.com/document/416352231/Hikind-lawsuit-against-AOC-pdf.

According to New York University’s “First Amendment Watch” blog, on Aug. 7, 2019, Ocasio-Cortez filed a response to Hikind’s complaint denying that her Twitter account was a public forum, that the account was used to make official announcements, and that her decision to block Hikind was driven by the content of his speech.

On Aug. 28, 2019, the Knight First Amendment Institute at Columbia University (Knight Institute) sent a letter to Ocasio-Cortez requesting that she stop blocking users from her @AOC account. “Based on the facts as we understand them, the @AOC account is a ‘public forum’ within the meaning of the First Amendment,” the letter contended. “You use the account as an extension of your office to share information about congressional hearings, to explain policy proposals, to advocate legislation, and to solicit public comment about issues related to government.” Ocasio-Cortez responded on August 29 that out of her 5.2 million followers only 20 were blocked for “ongoing harassment.” “Harassment is not a viewpoint. Some accounts, like the Daily Caller, posted fake nude photos of me & abused my comments to spread it. No one is entitled to abuse,” she tweeted.

However, researchers at New York University’s Arthur L. Carter Journalism Institute noted in a September 3 “First Amendment Watch” blog post that “neither Ocasio-Cortez’s response to Hikind’s complaint nor her lawyer’s [response] to the judge made clear how Hikind’s behavior constitutes harassment.” Hikind also took to Twitter to respond. “Others may have abused her in tweets; I only leveled sharp critique that got lots of attention on her threads and she couldn’t handle it. @AOC has shown herself to act like nothing but a petulant child, coward, and hypocrite. But the day will come where justice is served.”

On November 4, one day before she was set to testify in the Eastern District of New York, Ocasio-Cortez reached a settlement with Hikind. In a statement, Ocasio-Cortez apologized to Hikind and summarily unblocked him. “I have reconsidered my decision to block Dov Hikind from my Twitter account,” Ocasio-Cortez said. “Mr. Hikind has a First Amendment right to express his views and should not be blocked for them.” Ocasio-Cortez added that she reserved her “right to block users who engage in actual harassment or exploit my personal/campaign account, @AOC, for commercial or other improper purposes.”

In a press conference, Hikind called the outcome a “great victory.” He also emphasized that he “never harassed” Ocasio-Cortez. “[T]hat’s not what I do. I have a different point of view,” Hikind said.

In a November 4 statement, the Knight Institute praised Ocasio-Cortez’s apology. “We hope that other public officials who are blocking critics from their social media accounts take Ocasio-Cortez’s lead,” said Katie Fallow, a senior staff attorney for the institute. As the Bulletin went to press, litigation regarding Saladino’s lawsuit remained ongoing.

Minneapolis City Council Passes New Social Media Policy

On July 25, 2019, the Minneapolis City Council (Council) unanimously passed a new social media policy requiring city employees and volunteers to use official city social media accounts monitored by the city’s communications department when discussing matters relating to official duties. Per the policy, city workers can continue to have personal accounts, but will be sanctioned if they use them to communicate city business. The policy covers anyone who works on behalf of the city, including elected officials, members of boards and commissions, interns, and volunteers.

The city lists several “compelling governmental interests” in providing the guidelines, including to ensure that when those covered by the policy are speaking as individuals they “(1) clearly communicate their status in doing so; (2) do not violate laws and rules of employment designed to protect and maintain the stability and integrity of the workplace; (3) protect City government data that is not public; (4) do not violate rules of ethics; and (5) do not violate open meeting law requirements.” The full policy is available online at: http://www.minneapolismn.gov/policies/WCMS1Q-066527.

Several council members praised the new policy as an effort to draw a clearer line between personal and government messaging. “There should be some clarity with regards to what I say as a councilman representing the city of Minneapolis and what I say as an individual,” ordinance sponsor Abdi Warsame told the Minneapolis Star Tribune on July 25, 2019.

However, some expressed concern that the change will limit online discourse.  “It’s going to make city government seem a little more impersonal,” Council Member Steve Fletcher stated at a council committee meeting, according to the Star Tribune. Fletcher voted for the policy, but told the Star Tribune that as a result he would likely post less frequently to Twitter. “I don’t totally love it,” he said, “but I support it.”

The policy also prohibits users from blocking constituents, with exceptions for harassment. In a March 14, 2019 statement, the Minnesota Society of Professional Journalists (SPJ) called on “elected officials who block the public and journalists from their social media accounts to immediately cease and desist this affront to the public’s right to know.” The statement asserted that Council Member Alondra Cano had blocked journalists from her Twitter account in 2018 after the Star Tribune criticized her attendance record. According to the statement, Cano justified the move by labeling her account “personal,” even though she continued to use it to discuss city business. After the Council passed the new policy, Cano stated in an email exchange with the Star Tribune on July 25 that she still did not plan to unblock anyone under the new rules, writing “personal or partisan social media accounts wouldn’t fall under the purview.” The new policy was set to go into effect Jan. 1, 2020.

— Sarah Wiley

Silha Research Assistant