By PRFSU Writers 2023-2024 Mario Rodrigues
The idea of freedom of speech is one of the most foundational concepts in United States history and politics. Enshrined in our first amendment to the constitution, it limits the government’s ability to censor. The drafters of the constitution and the bill of rights, principal among them, James Madison, believed that we have an absolute right to freedom of speech. Later thinkers and statesmen of all stripes have added to this conception of freedom of speech. Supreme Court Justice Oliver Wendall Holmes conceived of a “marketplace of ideas,” and Louis Brandeis likewise is the originator of the idea that the solution to our social ills is “more speech, not enforced silence” (Abrams v. United States, 1919; Whitney v. California, 1927)
The Twitter files are a series of revelations about the internal operations of Twitter before Elon Musk bought the company, revealed through a select few journalists with access to Twitter documents. Internal communications within Twitter and between the government reveal massive government involvement in requesting the moderation of accounts and content on Twitter’s platform. This article will enumerate what these efforts were, how they were carried out, how we can contextualize them, and why ultimately, they are illegal violations of the 1st amendment.
The backdrop behind the government’s increasing involvement with social media platforms was the allegations of Russian interference in the 2016 election through the use of bot accounts on Facebook (Shane, Goel 2017). Later, in 2017 several senators wanted to put pressure on Twitter for the role that they believed it played in spreading Russian disinformation despite Twitter’s claims otherwise (Reuters, 2017). Reports by Twitter yielded no evidence of coordinated Russian bot activity (Taibbi, Twitter Files: Part 11, 2023). So what could Twitter have realistically done if they were not facing the same problem as Facebook? With all the senate hearings and talks of regulation coming from congress, under the pressure of capitulating to demands that it could not possibly meet, Twitter felt it had to give in and accept requests for moderation, or else be regulated (Taibbi, Twitter Files: Part 11, 2023).
Twitter started meeting with the intelligence community through the Foreign Influence Task Force, containing members of the FBI, CIA and DHS. There were also weekly meetings with the FBI, and eventually, the FBI became the conduit through which the Department of Homeland Security, the CIA, the Department of Health and Human Services, the Treasury Department, the Department of Defense, and the governments of nearly all of the 50 states would send requests to Twitter (Fox News, 2023). The FBI had a one-way direct communications channel to Twitter, which they called the Teleporter (Shellenberger, Twitter Files: Part 7, 2022). Ultimately “thousands of official reports flowed from all over” (Taibbi, Twitter Files: Part 9, 2022). There were so many requests that Twitter employees had to figure out a way to prioritize them (Taibbi, Twitter Files: Part 9, 2022). So many former FBI employees were working at Twitter, they had their own Slack channel and colloquially referred to themselves as bu alumni (Shellenberger, Twitter Files: Part 7, 2022). Money also switched hands. In one email a Twitter employee comments on how Twitter received 3.4 million dollars from the FBI (Shellenberger, Twitter Files: Part 7 2022). This has led to widespread misunderstanding. The email says that Twitter was reimbursed for “requests” made by the FBI. The journalists who broke the Twitter files thought this referred to requests by the FBI to look at posts that the FBI believes violate Twitter’s terms of service, in reality, the requests are legal requests for documentation and information from Twitter for law enforcement purposes– which are legally allowed to be reimbursed by request under statute (18 U.S. Code § 2703; 18 U. S Code § 2706).
What did all of this government involvement amount to? Much of it was related to disinformation regarding Covid 19 and the 2020 election (Zweig, Twitter Files: Part 10, 2022; Taibbi, Twitter Files: Part 6, 2022). Perhaps one of the most scandalous examples arose from the infamous Hunter Biden Laptop story, in which Hunter Biden, son of Joe Biden, forgot his laptop at a repair shop. The repair shop owner found some suspicious emails between Hunter and foreign business people from Ukraine alluding to the possible involvement of Joe Biden with the business dealings Hunter engaged in as a board member of a Ukrainian energy company from which he is estimated to have made $11 million dollars between 2013 and 2018, despite not having any experience in the energy industry. This happened all while Joe Biden was vice president overseeing diplomatic relations with Ukraine (Thrush, Vogel, 2022). The repair shop owner had given the laptop over to the FBI by order of a subpoena and had been waiting for the news to break for about 8 months. Eventually, he gave a copy of the laptop’s contents to Rudy Guliani, Donald Trump’s lawyer, who then brought it to the New York Post, where the story was published on October 14th, 2020 (Morris, Fonrouge, 2020).
Once the story broke, the decision was made to limit its spread. When White House spokesperson Keleigh McEnany tweeted about the article, she was locked out of her account (Taibbi, Twitter Files: Part 1, 2022). Furthermore, when links to the story were tweeted, users were rerouted to a generic message saying it was “Unsafe” to visit the link (Taibbi, Twitter Files: Part 1, 2022). Moreover, users could not send direct message links to the story, a form of suppression unheard of at Twitter outside of sharing the most heinous illegal content.
Yoel Roth, head of Trust and Safety for Twitter, may have been made to believe that there would be a hack and leak operation, ahead of the release of the NY Post story. In a sworn declaration, Roth said that he was warned by the intelligence community of an impending Russian hack and leak operation targeting Hunter Biden sometime in October, reminiscent of their operations in 2016 on the DNC (The Guardian, 2018). Roth also attended an Aspen institute tabletop exercise in September 2020 that was conducted on how social media should deal with a hack and leak specifically relating to Hunter Biden (Shellenberger, Twitter Files: Part 7, 2022).
The FBI had also been surveilling Rudy Giuliani when he had possession of the contents of the laptop after the actual laptop had fallen into the possession of the FBI(Re, 2020). It is possible that the FBI knew that this information would be given to the press sometime in October and warned social media executives of a hack and leak in order to have these events transpire.
There is an argument to be made that Twitter’s censorship, regardless of the government’s involvement, ought not to be going on. Twitter and others resemble a digital version of our world, where all the same arguments about freedom of speech might apply. Nonetheless, Twitter and other social media companies are private entities that can legally make whatever determinations they want about what can appear on their platforms. What remains the most concerning is the illegal interference of government bodies in the decisions of these private companies as it relates to speech.
In 1931, in Near v. Minnesota, the Supreme Court enumerated the possible areas of limitation on freedom of speech as obscene speech, incitement to violence, and national security (Near v. Minnesota, 1931). The national security exception has been touched on in New York Times v. United States. The court determined that prior restraint of the New York Times releasing the contents of the classified Pentagon Papers, which exposed government lies about the intentions and outcomes of the Vietnam War, did not meet the burden necessary for imposing restraint on free speech. Justice Brennan opined that mere conjecture that “publication of the material sought to be enjoined “could,”, “might,” or “may” prejudice the national interest in various ways” does not sustain a suspension of the first amendment, and that only in cases of war, such as in Schenck v. United States, may the government enjoin speech. It is clear that in the present situation, the government has nothing but a general, speculative, threat to national security, which would not stand if the court now is in like mind.
Ultimately, answers about the legality of government involvement are likely to be revealed after the ruling of two ongoing lawsuits being levied against the government on behalf of plaintiffs whose speech may have been suppressed by the government through social media, Missouri et al. v. Biden et al. and Changizi et al. v. HHS et al.
One might say that these reports do not show the government coercing or imposing any decisions on companies to moderate content because they are merely suggesting content to moderate. However, why would the government go to such lengths if they did not believe that their actions would influence the speech-related decisions of these social media companies? In any case, the optional nature of these enforcements may be partially lost on the employees and executives at these companies when a government entity such as the FBI brings its requests. The fact that the FBI sent money to Twitter in the midst of all this activity, although legally, and for information requests for law enforcement unrelated to content moderation, it is questionable nonetheless, as the law still leaves open the possibility that some of the extra money could be thrown in for quid pro quo purposes so long as both parties agree (18 U. S Code § 2706).
Then again, there may very well be good intentions and rightful motives involved in what went on. Most arguments in favor of free speech do not consider the possibility of foreign governments engaging in discourse to destabilize the country and spread lies to obtain their own objectives. It was inconceivable that such a huge quantity of speech could have come from disingenuous actors before the advent of social media. However, this is precisely the problem we face now.
It is clear that there is a problem to be addressed with foreign actors on social media, but it may not be the best of all reasonable alternatives to censor these actors. The Hunter Biden story shows just how censorship can go awry. Examples of government cover-ups and lies abound. The U-2 incident, the Pentagon papers, and Watergate, are just a few. Surely these truths could have been used to foment distrust in the government. Yet, they were all actual instances of government error that ought to have been known by the public. Censorship runs the risk of giving the government the job of defining and policing the very debatable category of disinformation, which it may use to keep the public in the dark about its own mistakes and keep the public from holding accountable the officials that make those mistakes. Maybe what is needed is not censorship, but greater transparency.