The Gray Area of Social Media: When Politics and Democracy Collide

December 9, 2019 | Insights

By Jorge Padilla

Widely considered a star of social media, Alexandria Ocasio-Cortez backed down from a Twitter fight in the form of a lawsuit filed by one of her Twitter followers. The suit, filed by former New York assemblyman Dov Hikind, alleged that the congresswoman had violated his First Amendment right to free speech by blocking him and preventing his ability to view her posts on the social media platform. Ocasio-Cortez had previously defended her decision to block Hikind, arguing that she had the right to block accounts that were harassing or abusive. However, just one day before she was scheduled to testify in federal court, Ocasio-Cortez settled the lawsuit, issued a public apology to Hikind, and unblocked his Twitter account. Her statement noted that Hikind “has a First Amendment right to express his views and should not be blocked for them.”

Ocasio-Cortez is not the only politician facing legal action for her decision to trim her social media followers. Elected officials around the nation are dealing with similar lawsuits, which have presented interesting First Amendment issues for courts and legal scholars. In July, the Second Circuit found that President Trump’s decision to block certain Twitter users was a violation of the First Amendment. Among the plaintiffs were the Knight First Amendment Institute at Columbia University and seven Twitter users who argued that they were prevented from engaging in a public discussion taking place in the “interactive space” found in Trump’s account. The Second Circuit agreed. In its decision to uphold the lower court’s ruling, the three-judge panel keyed in on the fact that Trump used his social media account to promote new policies, legislative changes, and other official White House business. The Trump administration even admitted as much when former White House press secretary Sean Spicer said in 2017 that Trump’s tweets should be considered “official statements by the president of the United States.”

The government argued that Trump’s decision to block individuals was protected by the government speech doctrine, which does not require government officials to maintain viewpoint neutrality when speaking about governmental endeavors. The court was not persuaded by this position, stating that even though the president’s initial tweets are government speech, the Twitter block prevented a user’s ability to view and respond to tweets from other users, and not just those of the president. Ultimately, the court found it was unlawful for “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.”

In effect, the decision confirms that an elected official may be able to tweet or retweet what she pleases, but she cannot shut others out of the process by blocking their access to the account or the subsequent discussion with other users.

The Trump decision is somewhat narrow since the court determined that the president obviously used his account to promote his administration’s policies and other official business. The court did not consider whether an elected official violates the Constitution by excluding persons from a “wholly private social media account.” As a result, the outcome may not be as straightforward for other elected officials who limit their social media use to more personal matters instead of official government business. In fact, other courts have ruled differently, including one Kentucky court that upheld the state governor’s decision to block Facebook and Twitter users who engage in “off-topic comments.” It is also unclear how an elected official could lawfully block a user who engages in harassing or abusive dialogue—the kind Ocasio-Cortez claimed led to her decision to block some of her followers. More cases will likely need to wind their way through the courts before we develop parameters for how and when elected officials may lawfully block a user from their social media accounts.

In the meantime, Ocasio-Cortez still faces two other federal lawsuits from disgruntled Twitter users. Her apology in the Hikind lawsuit did not address those pending claims, and she did not rule out the possibility of blocking others in the future. The outcome of those cases and others could be instructive as to how the public is able to interact on social media with public officials.

Meet Jorge

Jorge A. Padilla is a partner in Jackson Walker’s Litigation section and advises clients on business disputes both before and after litigation has commenced. Jorge has extensive experience litigating business disputes for a variety of clients, including trustees, executors, tech companies, property managers, real estate investors and developers, healthcare providers, pension funds, and media companies. He is also experienced in the areas of probate and fiduciary litigation involving will contests, trustees, executors, and other trustees.

The opinions expressed are those of the author and do not necessarily reflect the views of the Firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice.