Courts Won’t Stop The Feds From Deputizing Big Tech – MargotCleveland 12/29/22


The release of internal communications in the ongoing series of “Twitter Files” reveals a government bent on propaganda and censorship—and a Big Tech industry willing to play along. With each new thread detailing the internal workings and cozy relationship between the Twitter team and our government, the political right screams louder of First Amendment violations.

The First Amendment cannot be the whole answer to the problem, however, and, in fact, may not have even been transgressed. Americans are right to be outraged, but the solution doesn’t rest in constitutional claims. The deepest solution is in a resurgence in the values of free speech and a free press.

“Twitter, The FBI Subsidiary” was the spot-on title independent journalist Matt Taibbi crafted for the thread he published two weeks ago detailing the hand-in-glove relationship between the FBI and Twitter. But as Taibbi’s Christmas Eve sequel, “Twitter And ‘Other Government Agencies,’” revealed, it wasn’t just the FBI using Twitter as a corporate underling, nor is it just Twitter the government appropriates for this purpose.

Rather, as Taibbi reported, the “Twitter Files” “show the FBI acting as doorman to a vast program of social media surveillance and censorship, encompassing agencies across the federal government – from the State Department to the Pentagon to the CIA.” Beyond Twitter, “Facebook, Microsoft, Verizon, Reddit, even Pinterest, and many others,” as well as “industry players also held regular meetings” with the government, Taibbi revealed.

The internal documents released by Twitter’s new owner, Elon Musk, also exposed the U.S. government’s use of Twitter, and by extension other social media giants, “to carry out a covert online propaganda and influence campaign” with the goal of shaping “public opinion in countries including Yemen, Syria, Iraq, and Kuwait.”

Earlier “Twitter Files” also confirmed the “covert online propaganda and influence campaign” reached closer to home. They showed the FBI falsely framing the Hunter Biden laptop story as Russian disinformation to prompt Twitter and Facebook to censor the damning evidence of then-presidential candidate Joe Biden’s pay-to-play scandal, thereby influencing the 2020 presidential campaign. The “Twitter Files” connected to Covid likewise revealed our government’s willingness to use propaganda on her own citizens when bureaucrats believe it’s warranted.

Courts May Not Find This a 1A Violation

These details—and more—revealed over the last month paint a disturbing picture of a cozy relationship between the federal government and private platforms. But they do not necessarily establish the government violated the First Amendment according to current jurisprudence. In fact, reading the internal communications against the backdrop of First Amendment jurisprudence indicates the federal government used care to avoid crossing the judicial line.

Here, Supreme Court Justice Clarence Thomas’s recent exposition on the First Amendment in the context of Twitter and other private entities provides a necessary constitutional backdrop.

“Although a ‘private entity is not ordinarily constrained by the First Amendment,’” Thomas explained, “it is if the government coerces or induces it to take action the government itself would not be permitted to do, such as censor expression of a lawful viewpoint.” “Consider government threats,” the originalist justice continued, quoting from Bantam Books, Inc., v. Sullivan, the controlling Supreme Court precedent on the issue: “People do not lightly disregard public officers’ thinly veiled threats to institute criminal proceedings against them if they do not come around.”

“The government cannot accomplish through threats of adverse government action what the Constitution prohibits it from doing directly,” Thomas continued. “Under this doctrine, plaintiffs might have colorable claims against a digital platform if it took adverse action against them in response to government threats.” But there were no threats alleged in the case on which Justice Thomas opined, leaving the issue for another day. Thomas added, though, that “what threats would cause a private choice by a digital platform to ‘be deemed . . . that of the State’ remains unclear.”

FBI Crafted Emails to Withstand 1A Challenges

Reading the emails published in the “Twitter Files “against the backdrop of Justice Thomas’ synopsis of the First Amendment’s reach to social media platforms suggests the government may not have acted unconstitutionally in flagging supposed election misinformation. Not only did the government not threaten Twitter, but the emails reveal the FBI employed boilerplate language to avoid sparking a First Amendment case based on government threats.

“Twitter folks,” the typical email began, followed by, “Please see below list of Twitter accounts which we believe are violating your terms of service by disseminating false information about the time, place, or manner of the upcoming elections.” In general, the FBI then ended the emails by indicating the FBI had provided the information “for any action or inaction deem[ed] appropriate within Twitter policy.”

Such language indicates the FBI wanted to be seen as seeking cooperation, not coercion. Thus, under controlling precedent, the government alerting Twitter to what the FBI, Department of Homeland Security, or others believed constituted “misinformation” did not turn Twitter into a state actor.

The Courts Could Shift, But Haven’t

That is not to say, as First Amendment scholar Eugene Volokh posited, that there isn’t “room for courts to shift to a model where the government’s mere encouragement of private speech restrictions is enough to constitute a First Amendment violation on the government’s part.”

But the law is not there yet and may never be. Meanwhile, the federal government and its private partners have exponentially increased information-sharing and -gathering efforts, as well as censorship requests. The First Amendment, as currently interpreted, lacks the strength to stop the censorship and other Stasi-esque goals of the deep state….

Read More…