Blocking critics on Twitter: What Congress should know

Good news, D.C.: August recess is around the corner. For many, it is a time to escape the Beltway for some much sought-after R&R. For members of Congress, it is a time to return home and meet with constituents in their districts’ many town halls, festivals and county fairs.

In politically charged times, these events can sometimes turn combative. Questions concerning immigration policy or the president’s rhetoric may overshadow the talking points that members of Congress have in mind. During these events, protesters may need to be removed. To limit coverage, press may even be barred from attending.

Removing protesters and banning media is often unpopular, and constituents and the press may groan about their restricted ability to interact with their representatives. Rarely, though, do these gripes lead to federal lawsuits. The same restrictions on social media, however, might—just ask President Donald Trump and Rep. Alexandria Ocasio-Cortez, D-N.Y.

Recently, a current Republican congressional candidate and a former New York assemblyman filed suits against Rep. Ocasio-Cortez, alleging she violated their First Amendment rights by “blocking” the two on Twitter, thereby removing their ability to view her account or respond to her comments on the social media platform.

Both plaintiffs rely on a recent case from the Second Circuit, which considered whether it was constitutional for President Trump to block critics on Twitter. The case against the president was brought by the Knight First Amendment Institute at Columbia University. The Knight Institute—in addition to a number of users whom the president blocked on Twitter—argued that the president’s blocking of critical users on his @realDonaldTrump Twitter account was unconstitutional because the account is “an extension of the presidency” and therefore “subject to the First Amendment.” As a result, because the account is “a designated public forum,” they argued the account may not exclude users “simply because they criticized the President or his policies.”

Last year, a New York district court agreed with the plaintiffs, and the Second Circuit recently affirmed the decision. The Second Circuit looked first to the Twitter account itself. How does the president use it—as a private citizen or government official? This distinction is important. If the account is used “in a governmental capacity,” then the government user is typically barred from “discriminat[ing] based on viewpoint among the private speech occurring in the [Twitter] [a]ccount’s interactive space.”

The court concluded that the president used the account “in a governmental capacity” rather than “as a private citizen.” The court observed that the social media account “bear[s] all the trappings of an official, state-run account.” After all, the Twitter account displays pictures of the president “engaged in the performance of his official duties” and is the forum where he often announces new policies, engages foreign leaders and defends his legislative agenda. Even more, in 2017, “then‐White House Press Secretary Sean Spicer stated … that President Trump’s tweets should be considered ‘official statements by the President of the United States.’”

With this finding, the Second Circuit determined that the president’s Twitter account is a “public forum.” Such forums “need not be spatial or geographic,” the court observed, and the Internet can equally host a public forum. The Second Circuit found that the president’s account was a public forum because it is “repeatedly used … as an official vehicle for governance and made its interactive features accessible to the public without limitation.” In turn, because blocking critical accounts prevented these users from viewing, retweeting, liking or otherwise responding to his tweets (or to comments made by others), the president improperly excluded them from this public forum.

What does this mean for Rep. Ocasio-Cortez, or for other members of Congress who have happily blocked obnoxious or rude social media users? It will likely depend on whether a federal court finds that the congresswoman’s personal account is nonetheless used for official purposes. As the Second Circuit explained, this will “be a fact-specific inquiry,” and will fall on how politicians use their accounts (including personal accounts), what content is publicly available on the account and how government officials treat the account.

Of course, not all agree with the Second Circuit’s analysis, and other courts may rule contrary to the Second Circuit’s framework. For example, one professor has argued that the Second Circuit’s public forum conclusion is shaky because Twitter, not the President, ultimately controls the @realDonaldTrump account. After all, the professor reasoned, “Twitter has rules for content moderation — and those trump even Trump.”

Moreover, plenty of other questions remain. When can politicians block abusive social media accounts? Must they wait until the user violates the website’s user agreement? Can members of Congress block non-constituents? Until more courts have the opportunity to weigh in, officials fortunately have at least one remedy: the mute button.