Twitter, the FBI, and the First Amendment


Twitter's logo, a bird, appears on a screen on the floor of the New York Stock Exchange in New York City.
Twitter's logo appears on a screen on the floor of the New York Stock Exchange in New York City. AP Photo/Richard Drew

Twitter, the FBI, and the First Amendment

TWITTER, THE FBI, AND THE FIRST AMENDMENT. New Twitter owner Elon Musk made a lot of news in the conservative world on Friday when he released information about Twitter’s infamous suppression of the October 2020 New York Post story about Joe Biden and influence peddling, a story based on evidence from Biden’s son Hunter’s laptop. The article, published in the last three weeks of the 2020 presidential campaign, noted that Hunter Biden was engaged in shady business dealings in Ukraine and reported that one of his Ukrainian associates thanked him for arranging for the associate to meet Hunter’s father, then the vice president of the United States. One reasonable inference to draw from the story was that Hunter and Joe Biden worked together to reward the people who were paying Hunter Biden at least $50,000 a month to do nothing in particular.

The information Musk released essentially confirmed what we already knew: that Twitter suppressed the New York Post story without having a legitimate reason to do so. Twitter executives embraced the false notion that the story was “Russian disinformation” as a rationale to kill the story as far as Twitter was concerned.

Other social media companies, notably Facebook, also suppressed the story. And many legacy media institutions just ignored it. The laptop, of course, was later authenticated, even by some of the press institutions that mostly ignored it initially, such as the New York Times and the Washington Post. It’s impossible to say what effect, if any, the story might have had on the election had those institutions run with the story at the time rather than trying to hide it. In any event, Musk’s newly released documents confirm that Twitter suppressed the story without a legitimate reason.

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But here’s a really interesting part. There are more documents than just those Musk is erratically releasing.

Turns out there was a complaint to the Federal Election Commission concerning Twitter’s action, dating from October 2020, when the New York Post story was published. The complaining group was the Tea Party Patriots Foundation, which alleged that by censoring the Hunter Biden article, Twitter had essentially made an “in kind” contribution to the Biden campaign. The group lost the complaint, but as part of the process, Twitter’s chief censor, Yoel Roth — his actual title was “head of site integrity” — filed a declaration with the FEC.

In that declaration, Roth said that since 2018, he had had “regular meetings with the Office of the Director of National Intelligence, the Department of Homeland Security, the FBI, and industry peers regarding election security.” Roth revealed that in those meetings, the federal government officials said they were expecting some sort of 2016-style foreign election interference in the lead-up to the 2020 election. Here is what Roth said, in its entirety:

During these weekly meetings, the federal law enforcement agencies communicated that they expected “hack and leak” operations by state actors might occur in the period shortly before the 2020 presidential election, likely in October. I was told in these meetings that the intelligence community expected that individuals associated with political campaigns would be subject to hacking attacks and that material obtained through those hacking attacks would likely be disseminated over social media platforms, including Twitter. These expectations of hack-and-leak operations were discussed throughout 2020. I also learned in these meetings that there were rumors that a hack-and-leak operation would involve Hunter Biden.

Remember that Mark Zuckerberg, head of Facebook, said something similar in an interview with podcaster Joe Rogan. “The FBI, I think, basically came to us, some folks on our team, and was like, ‘Hey, just so you know, like, you should be on high alert. … We thought that there was a lot of Russian propaganda in the 2016 election. We have it on notice that, basically, there’s about to be some kind of dump that’s similar to that. So just be vigilant.'”

Given that, when the New York Post published its entirely legitimate and accurate story about Joe Biden, based on information from the Hunter Biden laptop, Roth at Twitter and the team at Facebook jumped into action. They did what they could to stop the story cold. In his declaration, Roth said the “Site Integrity Team blocked Twitter users from sharing links over Twitter to the applicable New York Post articles and prevented users who had previously sent tweets sharing these articles from sending new tweets until they deleted the tweets violating Twitter’s policies.” The story was stifled.

Here’s a question: When it warned Twitter and Facebook, did the FBI or other law enforcement know that the New York Post was preparing to publish the Hunter Biden story? Here you should read the reporting of the New York Post’s Miranda Devine, who wrote:

It looks very much as if the FBI pre-bunked a story it knew was coming about Hunter Biden. But how would it know The Post was going to publish the story in October 2020? Well, the FBI was spying on Trump’s then-lawyer Rudy Giuliani’s online cloud, under the pretext of an investigation into alleged foreign agent registration violations, a probe which conveniently was dropped this year. The covert surveillance warrant on Giuliani gave the FBI access to emails in August 2020 from Delaware computer repair store owner John Paul Mac Isaac disclosing information damaging to Joe Biden from the laptop Hunter Biden had abandoned at his store in April 2019. The FBI also had access to my messages with Giuliani in October discussing when The Post would publish the story.

If that is accurate, the authorities might have had a very specific purpose when they warned Roth that “there were rumors that a hack-and-leak operation would involve Hunter Biden.” And when the New York Post published its story on Oct. 14, 2020, less than three weeks before Election Day, Roth knew just what to do.

What does it mean? Think about this. There has been a debate about whether Twitter’s suppression of the Hunter Biden story violated the First Amendment. In a previously unknown and improbable development, a Democratic member of Congress, Rep. Ro Khanna, told Twitter at the time that the censorship decision “seems a violation of the 1st Amendment principles” and “seems not in the keeping of the principles of NYT v Sullivan,” referring to the famous Supreme Court press freedom case. Twitter, obviously, went ahead anyway.

Elon Musk has called that a clear violation of the First Amendment. But remember that Khanna said the decision violated the “principles” of the First Amendment, not necessarily the amendment itself. Twitter defenders quickly charged that Musk has a “profound misunderstanding” of the First Amendment because “the First Amendment regulates government conduct. It does not regulate private actors,” in the words of writer David French. Twitter is a private company, the argument goes, and can censor whatever it wants without violating the First Amendment.

Fine. But now a more complex story is emerging. What if the government, through selective leaking of secret information to Twitter officials, created the conditions under which Twitter’s natural response when the New York Post story was published, a response following government guidance, would be to censor the story? If that is the case, then no, the federal government did not violate the First Amendment. Indeed, it would have caused an uproar and would have been a gross violation of the First Amendment had the FBI shut down the dissemination of a press story. So the FBI persuaded Twitter to do it. And since Twitter is a private company — Voila! — there’s no violation of the First Amendment.

There is much, much more we need to know about this story. Some of it will come from releases from Musk. But there are many other people, like those in the FBI and the intelligence and national security agencies, who had roles in the events of October 2020. We need to learn what they did, too.

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