- Journalist Matt Taibbi published new details on Friday about Twitter’s content moderation decisions.
- Fox News pundits and Elon Musk described the decisions as violations of the First Amendment.
- Twitter, as a private company and not the government, can choose what it publishes and what it does not.
Twitter’s suppression of a story about Hunter Biden’s laptop has come under more scrutiny in the two years since it was published, especially as other news outlets have verified some of the laptop’s contents. But whether the decision was wrong or not, it did not violate the First Amendment of the Constitution.
On October 14, 2020, a month before the election, the New York Post ran a story claiming to contain material that came from a laptop belonging to Joe Biden’s son Hunter. Twitter quickly suppressed the spread of the story, initially preventing users from sharing the link, citing concerns it could be the result of hacking or a foreign disinformation campaign.
Twitter backtracked on its initial response within days of strong backlash, and former company CEO Jack Dorsey and others have said the initial decision to block the spread of the story was wrong. Since the story’s publication, outlets including The New York Times and The Washington Post have confirmed the authenticity of some of the laptop’s contents.
After Elon Musk took over Twitter in October, he promised to release details about how the company handled the story. On Friday, Matt Taibbi, an independent journalist, published a long Twitter thread that included internal communication about the decision-making process.
Taibbi also reported that Twitter received and granted requests from both the Trump White House and the Biden campaign to remove content. At least some of the posts the Biden campaign has requested to be removed contained nude images that would have violated Twitter’s terms of service under its non-consensual nudity policy.
Musk, who said he voted for the Republican for the first time this year, was quick to criticize the Biden team.
“Twitter acting in itself to suppress free speech is not a violation of the First Amendment, but acting on behalf of the government to suppress free speech, without judicial review, is,” Musk said. wrotedespite the fact that the Biden campaign was a private entity, not government.
But regardless of what Musk or pundits on Fox News say — whether or not the decision to suppress the story was right or ethical — Twitter’s actions did not violate the First Amendment.
Congress will not make law…
“The clear answer, the 100 percent clear answer, is no,” Doron Kalir, a professor at the Cleveland-Marshall College of Law, told Insider. “Twitter is not a state actor and the First Amendment only applies to state actors.”
The actual text of the amendment puts it plainly: “Congress shall make no law … curtailing freedom of speech or of the press.”
Congress. What courts have determined extends to government at all federal, state and local levels. So whether or not Twitter can violate the First Amendment depends on whether or not it can be considered government. But US courts have ruled that sites like Twitter, YouTube and Facebook are not state entities. They are independent companies.
“Federal courts in the United States have ruled time and time again, and even in 2020, that those digital platforms are not state actors, therefore they are not the government, and there is no way the government can limit them,” Kalir said, referring to the 2020 Prager University v. Google LLC case, in which the Ninth Circuit Court of Appeals ruled that YouTube was not a government actor.
Which means that instead of Twitter violating the First Amendment, the private platform was actually expressing its First Amendment rights by making its own decisions about what to publish.
Media outlets have the freedom to grant or deny government requests
As for the requests to remove specific content, as far as we know, they were just that: requests.
“Both the state, the Trump White House and the Biden team requested Twitter, and Twitter was under no obligation to oblige or deny those requests,” Kalir said.
Unlike the Biden team, the White House was a state actor. But Kalir noted that media-government collaboration is about as old as government itself. Journalists and news outlets often rely on the government, sometimes through leaks or anonymous sources.
That cooperation may include requests by a state actor to delay publishing a story or even to withhold names or other information for national security concerns or other reasons. And again, outlets are free to agree or not to such requests.
“At some point, when the newscast loses its independent characteristics and becomes a funnel for government information or disinformation, then it ceases to be a private publication and you could argue that the First Amendment should be involved,” Kalir explained, but added added that the Twitter case “doesn’t even come close to the line.”
He said he had no precedent in the US in which a court ruled that a newspaper or media outlet acted as an arm of the government.