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Experts say FBI may have violated First Amendment over social moderation requests

By Sarah May
|
December 26, 2022

The ongoing dissemination of internal corporate communications referred to as the “Twitter Files” has exposed the heavy involvement of the FBI in the platform's speech moderation activities during the run-up to the 2020 presidential election, and legal experts are suggesting -- as former President Donald Trump often has -- that the agency's role may have violated the First Amendment, as Fox News reports.

The particular release at issue was made last week by independent journalist Matt Taibbi, and it showed that former head of safety at Twitter, Yoel Roth, participated in weekly meetings with a host of federal authorities such as the Department of Homeland Security, the Director of National Intelligence, and the FBI regarding a possible “misinformation” deluge in advance of the election.

Problematic “partnerships”

Taibbi shed light on the questionable interactions between the FBI, DHS, and Twitter executives with the example of an October, 2020 incident in which the social media giant was urged to act in response to a Republican politician's posts about possible voter fraud.

In response to the FBI's request, Twitter added a warning label to the tweets, saying, “Learn how voting is safe and secure,” using its corporate voice to delegitimize the message the user was using the platform to convey.

The journalist also publicized chats between Twitter policy director, Nick Pickles, and another company employee in which the pair discussed the way in which their “partnerships” with the aforementioned federal agencies help in the detection of so-called “misinformation.”

Trouble at the top

As Fox News notes, the concerning overlap between Twitter executives and arms of the federal government when it came to content moderation extended to the tech giant's former deputy general counsel Jim Baker, who was deeply entrenched in furthering the Trump—Russia collusion narrative during his prior employment at the FBI.

So troubling was Baker's apparent involvement in censoring, among other things, revelations from Hunter Biden's infamous laptop ahead of the 2020 election that new company CEO Elon Musk fired him earlier this month.

In dismissing the executive, Musk indicated that he had serious concerns with Baker's “possible role in suppression of information important to the public dialogue, with it later coming to light that the now-former deputy general counsel played a role in what the outlet described as “vetting” the initial release of the so-called “Twitter Files,” which outlined suppression and throttling of the laptop story.

In relevant company discussions about the New York Post's reporting on that particular scoop, Baker declared, “It's reasonable for us to assume” that the damning information came from hacked materials, and therefore Twitter was justified in limiting access to it.

FBI dismisses critics

In the wake of the damning disclosures about its involvement in censorship activities at Twitter, the FBI has responded by dismissing those who have publicized the scandal as “conspiracy theorists,” according to the New York Post.

Last week, the agency suggested that what to most Americans are extremely shocking details of the FBI's exertion of pressure on Twitter to stifle user speech to protect Hunter Biden – and by extension, his father's presidential campaign – was done in the ordinary course of business and is not the outrage some assert.

In a statement given to the Post, the agency said, “The correspondence between the FBI and Twitter show nothing more than examples of our traditional, longstanding and ongoing federal government and private sector engagements, which involve numerous companies over multiple sectors and industries.”

Slamming the journalists attempting to expose the truth of what occurred in advance of the last presidential election, the agency continued, “The men and women of the FBI work every day to protect the American public. It is unfortunate that conspiracy theorists and others are feeding the American public misinformation with the sole purpose of attempting to discredit the agency.”

Constitutional concerns

Despite the FBI's claim that the Twitter Files are much ado about nothing, a growing number of legal experts disagree, contending that what occurred was in fact a violation of the First Amendment.

Hans von Spakovsky, senior legal fellow with the Heritage Foundation, explained to Fox News Digital that though Twitter is a private entity that can moderate content as it sees fit, the enterprise could rightly be viewed as a government agent if it regularly follows its commands regarding user speech.

“The First Amendment applies to the government and prohibits censorship by government agencies and entities, not private actors. However, when a private company is censoring information based on direction, coordination and cooperation with the government, then legally it may be considered to be acting as an agent for the government, and it may be found to be violating the First Amendment, noted von Spakovsky.

Robert Delahunty of the Claremont Institute's Center for the American Way of Life opined that not enough is known at this stage to declare whether First Amendment violations are at play but asserted that a comprehensive congressional probe is required.

“The next Congress must make it a top priority to investigate the (apparently extensive) contacts between the intelligence community and the platforms to determine whether what amounted to governmental censorship of political speech took place,” Delahunty said, and with Republicans set to take the reins in the House in January, such crucial fact-finding seems highly likely to occur.