July 10, 2019

"Ocasio-Cortez faces lawsuits for blocking Twitter critics after appeals court ruling on Trump."

WaPo reports. That's the way case law works.
Rep. Alexandria Ocasio-Cortez (D-N.Y.) is facing two federal lawsuits for blocking Twitter users who were critical of her or her policies. Republican congressional candidate Joseph Saladino and former New York assemblyman Dov Hikind sued the freshman congresswoman Tuesday, shortly after a New York appellate court upheld an earlier decision affirming that President Trump violated the First Amendment for doing the same....

The First Amendment limits government action and bars it from discriminating against viewpoints. Public officials, the court said Tuesday, cannot exclude members of the public “from an otherwise open online dialogue because they expressed views with which the official disagrees.”
Even when the public official is using his personal account on a privately-owned social media site.
“Since he took office, the President has consistently used the Account as an important tool of governance and executive outreach,” Judge Barrington D. Parker wrote in the 29-page opinion. “Because the President, as we have seen, acts in an official capacity when he tweets, we conclude that he acts in the same capacity when he blocks those who disagree with him.”
You can try to say the President of the United States is unique or the way Trump has used Twitter as President of the United States is unique, but I don't think that should work. You need a neutral rule here.

58 comments:

Fen said...

So why does the opposing party have to give their rebuttal to the State of the Union Speech from a cloakroom?

Bay Area Guy said...

"You need a neutral rule here."

Why Althouse is so good.

Nonapod said...

Like elections, idiotic rulings have consequences.

Achilles said...

You need a neutral rule here.


Oh god.

AllenS said...

Has "neutral rule" stopped Facebook from it's made up rules?

MayBee said...

Turnabout is fair play.

AllenS said...

Is Google (the search engine) "rule neutral"?

tds said...

This win is useless, since Twitter will just terminate accounts of users criticizing Democrats with harassment or other excuse, but will not do the same for accounts criticizing Trump or Republicans

tim maguire said...

I disagree with the ruling, but my opinion doesn't matter. AOC uses twitter the same way Trump does and as an elected official, she should follow the same rules.

I can't wait to hear her rants about how unfair it is that she can't block people she doesn't like.

Yancey Ward said...

"You can try to say the President of the United States is unique or the way Trump has used Twitter as President of the United States is unique, but I don't think that should work. You need a neutral rule here."

If this case comes before the same judges, I think it very likely that they would accept such a ridiculous distinction. Sure, you need a neutral rule, but rules are for suckers in politics.

BtC said...

We need neutral rules *applied* neutrally, too. But neutral/universal rules are a good first step. See also: bill of attainder.

Seems to me the days of 'progressives' dominating lawfare tactics are - if not over, then at least at the beginning of a more consistently contested phase. We have certainly been seeing this in Title IX court cases and some other university battles (e.g., Oberlin). It's definitely better to get all of these contradictions and partialities out into the open, but what a mess.

Yancey Ward said...

And TDS is correct- Twitter will do the work for AOC if, by some chance, she is barred from blocking the accounts herself.

Drago said...

AOC should take this all the way to the Supreme Court where Roberts will rewrite the law to allow anyone except Trump to block twitterers.

Big Mike said...

That's the way case law works.

Yes. But my cynical prediction is that it won’t in this case.

exhelodrvr1 said...

It's not fair!! She's a WOC!

tds said...

instead of blocking herself, AOC will just report unpleasant users to Twitter, and Twitter will do the hatchet job for her. If Trump reports users to Twitter, however, Twitter will do nothing. No judge will be able to do anything since it is a private company's playground with its own rules. Problem with case law solved

Drago said...

After all, doesnt AOC blocking someone look alot like a tax?

Earnest Prole said...

To play Devil's advocate on the narrow legal terms of the decision, Trump is the Executive, but AOC is not Congress.

robother said...

Applying the same rule to AOC that the courts apply to Trump will seem cruel neutrality indeed.

Craig Howard said...

Cruel neutrality!

Francisco D said...

You can try to say the President of the United States is unique or the way Trump has used Twitter as President of the United States is unique, but I don't think that should work. You need a neutral rule here.

I appreciate Althouse's sincere attempts at fairness despite her biases ... which are different from my biases.

Achilles said...

This is just garbage.

All of it.

Democrats/globalist republicans will not follow the same rules they place on others. They are the ruling class.

Hillary Clinton took Billions from foreign governments in obvious bribes. Bill Clinton was a rapist. Obama has been caught spying on political opponents.

Neutral rules only apply when both sides are willing to follow the rules.

What a joke.

Henry said...

I guess the bot twitter people know who to spam now.

Henry said...

The hair replacement and weight loss people are doing the high-fives today.

Ann Althouse said...

"Has "neutral rule" stopped Facebook from it's made up rules?"

The courts, doing constitutional law, need to articulate and apply neutral rules. That's equal justice under the law.

Facebook isn't the government. It gave Trump and AOC a tool to block whomever they chose. Those who were blocked called upon courts to stop a government official from using that tool. It's private citizen versus government official. No one is suing Twitter here.

The court isn't characterizing Twitter as a public forum that has to follow viewpoint-neutral rules. That would be a big change. I would encourage Twitter to adopt viewpoint-neutral rules. There is an argument that they're committing fraud by telling users they're going to be viewpoint-neutral and then applying their own rule in a biased way. But none of that is going on in these First Amendment cases.

dreams said...

Looks like it'll be up to Twitter and Facebook to protect the liberals and block the opinions of conservatives which they've already been doing.

Josephbleau said...

There seems to be so little justice in the law. If the President makes a statement is each citizen allowed to present comments in the same forum? If Grandpa had broadcast a reply to an FDR fireside chat be would have been arrested for lack of license. And no, ham radio is not to be used for commercial or political purposes. I guess now, if there is a conceivable means to reply to an official government statement it must be allowed. This shifts the balance of power from government toward the established media who need not concern themselves with unwanted replies. I guess the President's comments could be legally spammed into insignificance by high volume trolls. This helps the media filter the President's statements, just like they wanted.

Josephbleau said...

I guess the emoluments case would allow Trump to buy a newspaper, though.

Balfegor said...

Re: Althouse:

The court isn't characterizing Twitter as a public forum that has to follow viewpoint-neutral rules. That would be a big change. I would encourage Twitter to adopt viewpoint-neutral rules. There is an argument that they're committing fraud by telling users they're going to be viewpoint-neutral and then applying their own rule in a biased way. But none of that is going on in these First Amendment cases.

This is an analysis that makes sense in the Trump context, where Twitter et al. aren't going to be retaliating against his critics. But -- and I really don't know what 1st amendment jurisprudence looks like on this -- if you had a private platform (like a meeting hall or whatever) that an elected official is using for public business and public communication, and the owner of the private platform were preemptively banning critics of the elected official from accessing the platform, would that really be okay?

Basically, in Trump's case, the analysis all makes sense, because Twitter isn't going to accidentally on purpose help him out by banning his critics, on account of how their executives hate him. And while it seems a little odd that Trump has to put up with troll-spam on twitter because he's the President, I can certainly see the logic that led to that conclusion.

But if Trump were replaced by a Democrat, it's also pretty easy to envision how Twitter's managers would put their thumb on the scale to preemptively ban any conservative or right-wing critics of a Democratic president on trumped up (hah) "hate speech" grounds.

Ann Althouse said...

"...would that really be okay?"

Okay as constitutional law used in courts? Or just okay as a good situation?

Balfegor said...

I don't think it's okay in terms of being a "good situation." But I'm more curious as to how you (or anyone else who follows first amendment jurisprudence more closely than I do) think that would be resolved in the courts, if challenged by a critic banned from online interaction with a President by the operators of an online platform. Would they get into the reasons for the ban and the substance of the TOS and how it is applied? Would it just be private platform, no state action, done? Would the platform operator be considered as a possible quasi-state actor?

Mike Sylwester said...

The judges were doing The Resistance -- not the law.

They did not foresee this consequence.

Angle-Dyne, Samurai Buzzard said...

AA: The courts, doing constitutional law, need to articulate and apply neutral rules. That's equal justice under the law.

Facebook isn't the government. It gave Trump and AOC a tool to block whomever they chose. Those who were blocked called upon courts to stop a government official from using that tool. It's private citizen versus government official. No one is suing Twitter here.


OK, Twitter will go right on censoring critics of Dems like AOC, so she gets things her way regardless of this lawsuit.

Sure, that's "equal protection under the law", according to the legal status quo re social media. Result: on social media, progs get to enjoy free speech and conservatives get to STFU.

What I don't understand, therefore, is why this ruling is of any interest or import. It changes nothing, really. Or why you seem to think that the understanding of the "private company as opposed to government" thing is somehow eluding people. (Nobody doesn't understand this. It's not a complicated concept. What this means for free speech rights in the 21st century, now that's where things get thorny.)

bagoh20 said...

I wish courts treated the 2nd amendment like they do the 1st. " the right of the people to keep and bear Arms, shall not be infringed."

Imagine if Trump could do this, but only in states that vote against him, becuase that's approximately how the 2nd Amendment is enforced.

bagoh20 said...

I bet if AOC's case came first it would have gone the other way, becuase that's how case law works. Hint: it's not neutral.

Clyde said...

Good for the gander, good for the goose.

The really stupid thing is that while everyone has a right to free speech, nobody has a right to be listened to. People have a right to ignore others... Unless you're the President of the United States, of course. Now let the unintended consequences cascade forth!

gilbar said...

This is Crazy! Just because a law is used to penalize Donald Trump, doesn't give anyone the right to try to use that same law against others.

The US Constitution EXPLICITLY SAYS that laws targeting one republican CANNOT be used to target a democrat. This is the 'Bill of Attainder' clause; which states:
dirty tricks are for use only on a republican; ANY attempt to hold democrats to the same standard is TREASON

Look it UP folks! This is what is meant by: A Living Constitution

bagoh20 said...

If Trump kicks someone out of Mar Largo for standing on a soap box and criticizing him in the lobby, is he violating the 1st Amendment? He does official business there. What if they spray graffiti on the White House? Is he allowed to cover that up?

Jim at said...

I'm not on Twitter. Yet - as the case with Lileks' dad today (RIP) - I was able to access all of his tweets simply by not signing in.

I fail to see how blocking someone prevents them from seeing anybody and everybody's tweets if they're not logged in.

First Amendment, my ass. The whole thing is just another notch in the left's stupidity belt.

Rabel said...

It's "public officials" all the way down.

Who counts as a public official? I've seen that applied as far down as high school teachers.

Fen said...

After all, doesnt AOC blocking someone look alot like a tax?

"...would cause social upheaval far more critical than sentimental adherence to a 100 year old document, and lose my table at Martha's Vineyard" - Roberts decision, 2020

AOC's achilles heel is that she is still acting like an activist, not a member of congress with the power to fix the problems activists complain about.

Throwing rocks from the sidelines is cheap and easy. But AOC is all hat and no cattle. So she's indulging in what's comfortable for her - whining on Twitter instead of rolling up her sleeves and quietly working to represent the interests of her constituents.

They aren't happy with her either. Several complaints about calls to fix real problems in her district not responded to. I think they will throw her out.

Matt Sablan said...

The consequences were entirely expected!

Puck said...

The idea behind blocking people is to keep them from showing up in replies to your Tweets.

Gospace said...

From what I've read elsewhere- from other legal analysts- the decision pretty much voids Twitter's terms of service and their ability to block users. I'm waiting for the first test case from someone who has already been permanently banned....

Thomas Wictor- Are you reading this?

Achilles said...

AOC: The patriarchy has no gender.

AOC is going to get a lot of republicans elected in 2020 and never be heard from again.

narciso said...

'English do you speak it' English Spanish or latin, it's just jibberish,

deepelemblues said...

Twitter is not an 'otherwise open online dialogue' though

That's a weak point in the court's reasoning, the conclusion of which I do agree with

RobinGoodfellow said...

Blogger Drago said...
AOC should take this all the way to the Supreme Court where Roberts will rewrite the law to allow anyone except Trump to block twitterers.


Welcome to another episode of TrumpLaw!

Ralph L said...

How does this compare with removing hecklers from a speech or rally?

Does Twitter give them a tool to bump certain replies continually to the bottom of the pile?

Browndog said...

Gospace said...

From what I've read elsewhere- from other legal analysts- the decision pretty much voids Twitter's terms of service and their ability to block users.


Nothing 'pretty much' about it.

Twitter allows users to block anyone for any reason. Now, it is subject to judicial review.

I'm not sure how much power the Black Robes need to seize before a legislative, Executive, and public revolt.

Henry said...

Blogger Drago said...
AOC should take this all the way to the Supreme Court where Roberts will rewrite the law to allow anyone except Trump to block twitterers.


Thomas will dissent.

Leland said...

I would encourage Twitter to adopt viewpoint-neutral rules. There is an argument that they're committing fraud by telling users they're going to be viewpoint-neutral and then applying their own rule in a biased way. But none of that is going on in these First Amendment cases.

I wanted to quote this because I suspect many readers will forget it was written, if they ever acknowledge it all. I'm acknowledging it here and agree.

Unknown said...

THE BIG POINT

Trump decision declares Twitter a public sqaure.

Resistance won battle which lost their war


Now silicon valley spy companies should be regulated a 1st amendment right

Narayanan said...

Blogger Bay Area Guy said...
"You need a neutral rule here."

Why Althouse is so good.
________

I see her nudge towards STATISM.

Left unasked who is to make rule!

Narayanan said...

AA said ...

The courts, doing constitutional law, need to articulate and apply neutral rules. That's equal justice under the law.

_______

This is well formulated!

I now get where at is Emerita Professora


I shall now need to rethink my comments earlier and future.

Narayanan said...

Are we discovering : Right to Unbroken Twitter Thread ?

Does not Reddit service something similar?

Narayanan said...

...But none of that is going on in these First Amendment cases...

Are there amici in these cases? Are they touching any part of *NONE OF*

Is it permissible for court to do that?

Or Will that be over-reach activism etc.

Why not conclude : all decisions are reflection of the idiots before and on the court!

Why expect more?

Wilson Carroll said...

So the next time Trump gives a campaign speech, a Trump-hater has the right to interrupt and heckle him???

Free speech means Trump haters can say what they want ON THEIR OWN twitter account, not on someone else's account. This is an appallingly stupid decision.