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How a First Amendment lawsuit could unfold over the Twitter Files
Legal experts have widely differing views on whether the Twitter Files reveals U.S. government acted unlawfully in coordinating with Twitter on content moderation.
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Summary: The Twitter Files revealed senior staffers regularly met with U.S. government officials and the FBI in at least one instance flagged a pair of tweets, but lawyers have widely different views on whether a First Amendment lawsuit could be filed.
The Twitter Files, as revealed by ongoing reporting from Bari Weiss and Matt Taiibi, stands out as the most definitive evidence yet officials with the U.S. government have been working behind the scenes to suppress free speech in form of online content — sometimes in the welcoming company of Twitter executives who were totally willing to execute that censorship.
The internal talk among Twitter executives prior to Elon Musk's takeover reveals a broad-based initiative to moderate content, which appear to have been applied unevenly in favor of their political views, as well as consistent meetings with government officials in a coordinated approach to moderating content deemed as misinformation. Multiple times is Yoel Roth is shown talking about speaking with U.S. government officials on a repeated basis (and joking about it in at least one instance).
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The implications, in terms of the U.S. government role, could be serious for free speech under the First Amendment. With questions about whether or not U.S. government officials’ engagement with Twitter to moderate or even censor information rises to the level of the constitutional issues, and potential consequences and legal liability if that were the case, the Weekly Dystopia sought out answers from lawyers with expertise on the First Amendment.
Lawrence Walters, managing partner of the Longwood, Fla.-based Walters Law Group, didn't hold back in sounding the alarm and said the Twitter Files "could be on the verge of uncovering one of the largest government censorship efforts in history" depending on what additional evidence is released.
"Importantly, the First Amendment prohibits the government from creating an informal censorship scheme in the same way that it prohibits direct censorship of speech," Walters said. "The Supreme Court has routinely recognized the chilling effect that can be created by government pressure or implied threats of formal action against private parties."
Walters envisioned a potential lawsuit under the First Amendment coming from anyone harmed by censorship of speech at the behest of the government (as well as Twitter itself on the basis the government violated the platform’s First Amendment rights to publish content as it sees fit.) The remedies sought in a legal action against the government for the violation of the Constitution, Walters said, could be money damages, injunctive relief or a declaratory judgment.
"The courts may be hostile to awarding money damages in a lawsuit involving Twitter censorship," Walters added. "However, the courts can enjoin federal agencies and officers from future violations of the First Amendment which puts government actors at risk of contempt of court if the injunction is violated."
Walters said the "cozy relationship" between U.S. agencies and social media platforms "should give us pause for concern," suggesting a revolving door relationship between the two entities. Jim Baker, a former senior FBI official with ties to the Hillary Clinton campaign and investigations into Donald Trump, was revealed to have until weeks ago been a general counsel at Twitter and having a role in delaying the release of the Twitter Files to the public.
"It appears that these platforms have routinely hired former employees of these agencies for important trust and safety roles which could have fostered a relationship between the public and private sectors that blurred the lines between government action and private platform content moderation," Walters said.
But as a whole, the resulting conclusions from these experts on the U.S. government role was widely different. One end of the range of viewpoints was a clear violation of fundamental rights with a sound foundation for lawsuits, the other end was a limited interaction perfectly within bounds of the guidelines of the U.S. Constitution.
Paul Schiff Berman, a law professor at George Washington University who has written on legal issues regarding online activity, said he sees no "implication or evidence that the government did anything to stop Twitter from publishing anything.”
"A government uses its bully pulpit to ask corporations to do things all the time," Berman said. "Biden said please don't price gouge to the gas companies, things like that, or do something to curb disinformation about COVID, those kinds of things. And those are not in any sense thought of as restrictions on speech or liberty of those corporations. That's part of what the government does."
Berman pointed to the 1997 decision from the U.S. Supreme Court in Turner v. FCC, which held a law by Congress requiring cable stations to carry broadcast channels and public access channels on their services was constitutional despite claims it was a violation of the First Amendment.
"The point of the First Amendment is not necessarily that everyone just speaks," Bermand said. "The point of the First Amendment is to allow an ecosystem for speech so that the American people can engage in democratic discourse and the process of self-governance, and so not every regulation that has anything to do with speech is itself a First Amendment problem or censorship."
Mark Weaver, a Granville, Ohio-based attorney and crisis communications expert, took a more circumspect approach on whether the U.S. government role violated the First Amendment by coordinating with Twitter on content moderation.
"To the extent that government officials consistently used their position to coerce Twitter officials to shut down speech based on its content, there’s a colorable case for a violation of the First Amendment," Weaver said. "We don’t have a lot of caselaw on this but — turning to another constitutional right — it’s well-settled that police cannot coerce a third party to search a private home when there’s no search warrant."
One particular finding in the Twitter Files that stood out was a Twitter employee posting on the Slack communications "we just got a report from the FBI concerning 2 tweets." Both were from Twitter user John Basham, one relating to alleged "shredding" of mail-in ballots and the other making claims between two and 25 percent of those ballots were rejected. Matt Taiibi reported the first was tagged with a notice Politifact rated the claim as false, while the second was given a "learn how voting is safe and secure tag" on the basis a two percent ballot rejection rate is "totally normal."
Whether or not the tweets are false, or even misleading about the election, the FBI flagging them for Twitter may very well have First Amendment implications. Nothing about Basham's speech appears to be anything illegal, such as a direct incitement to violence.
Berman, asked about the indication the FBI reached out to Twitter to flag the content, downplayed the significance of the evidence, saying he's unsure "government regulations that are aimed at making sure that there isn't incitement to violence through misinformation" are a violation of the First Amendment.
"I also don't think that a random FBI person counts as the government for First Amendment purposes, necessarily, and I also don't know exactly what they were told to do," Berman said. "My understanding is that Twitter was encouraged to do more to suppress misinformation around the election, but that nobody was requiring Twitter to do anything. But even if they were required to do something, it's not completely clear that that's a First Amendment problem."
Basham, a Texas-based Republican and meteorologist, said in a response to an inquiry from the Weekly Dystopia he “will exercise every means” to seek justice over the revelations of FBI involvement in the Twitter Files.
“I Am Livid That The FBI, Who Is Tasked With Protecting The Rights Of All Americans, Has So Blatantly Targeted Me & Violated My Constitutional Rights,” Basham said. “Seeking To Silence My Opinion Is Nothing Short Of Orwellian. The FBI Continues To Break The Law & Are Never Held To Account. This, I Cannot Abide. I Will Endeavor To Finally Get Justice From Their Lawlessness & Will Exercise Every Means At My Disposal To Do So, Even In Court.”
As the Twitter Files unfold, we continue to see evidence the U.S. government sought to work with Twitter on content moderation, while earlier reporting reveals the internal talk about the discussion that went into the decision to ban the Hunter Biden laptop story in the 2020 election. As of right now, we don't have any indication the U.S. government had any input on the decision over the article, but that would raise the stakes if further reporting revealed that was the case.
Walters said the New York Post could sue under the First Amendment if there was sufficient evidence government pressure directly caused Twitter to ban the Hunter Biden story, although he conceded there's some limitations.
"A court or a jury would need to wrestle with difficult factual issues on whether the government’s actions caused actual censorship by Twitter, or whether Twitter employees made their own independent decisions on content moderation," Walters said.
So there's disagreement about the fundamental nature of the U.S. government engagement with Twitter in online content moderation to the extent experts have differing views on whether, in fact, they rise to the level of an infringement upon the First Amendment. That would likely mean any claim in the courts wouldn't be a slam dunk and the litigation would have to proceed though the system to obtain the ultimate answer on whether government officials acted outside of the bounds of the U.S. Constitution.
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