The Twitter Files
People are excited about the “Twitter Files”, the documents released by Elon Musk about Twitter’s decision to suppress the Hunter Biden laptop story (and other content disliked by Democrats). See:
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Background Summary: President Biden’s son, Hunter Biden, left his laptop at a repair shop and never picked it up. The store owner looked at it and found some incriminating information having to do with Hunter allegedly selling access to Joe Biden when Joe was Vice-President, and other shady stuff. He turned over the laptop to the FBI and also shared a copy with the New York Post, which published a story about it 3 weeks before the 2020 election in which Joe Biden was to be elected.
Twitter decided to suppress sharing of the story on its platform. E.g., the White House spokeswoman was suspended from Twitter for sharing it. This might have influenced the outcome of the election. Apparently, people with connections to the Twitter censors, including the Biden campaign, would regularly ask Twitter to suppress tweets.
Here are some things you might be wondering:
1. Did Twitter violate the First Amendment?
No. The First Amendment, like all provisions of the U.S. Constitution, is a restriction on the government. No one other than the government can violate it. This is a non-controversial, basic point about what a Constitution is.
2. Did the Biden campaign violate the First Amendment?
No, because they were not yet part of the government, because Biden hadn’t been elected yet.
3. Okay, but did Twitter violate the spirit of the First Amendment?
Not really. A private organization is free to have a partisan position. You can start a publishing house, a media company, or whatever, to promote a partisan ideology. That’s not inconsistent with either the letter or the spirit of the First Amendment. If the Daily Kos refuses to publish articles by Steve Bannon, that’s not a violation of even the spirit of the First Amendment.
Twitter essentially decided not to “publish” material promoting the Hunter Biden story. Even if (as conservatives are saying) this was a purely partisan position, that’s not inconsistent with the spirit of the 1A.
4. Okay, but did Twitter make a bad call?
As far as I can tell, not on this particular story. This story came out shortly before the 2020 election, which makes it extra plausible that the story was generated by someone to influence the election, and thus plausible that it was bogus. We now know that it was genuine, but that probably was reasonably unclear to the Twitter staff at the time.
It was not even implausible that the story might have been generated by Russian intelligence to influence the election outcome. No, that’s not a crazy conspiracy theory. And in case you’re about to point to the mendacity of U.S. officials, the media, and the Democrats, that’s irrelevant. Their untrustworthiness doesn’t mean that the Russians are trustworthy, which they obviously are not. Running an operation like this is not at all beyond them.
If the story was a lie planted for political purposes, it’s reasonable for a private company to decide that it does not want to be part of spreading the story and thereby make itself partly responsible for the deception.
5. Is Twitter really responsible for what people tweet?
There are two ways to view social media companies:
1. Neutral Platform: They just provide a way for people to communicate, with no responsibility for the content. Examples: a company that sells paper and pens isn’t responsible for what you write on their paper with their pens. An internet service provider is not responsible for the content of the messages you send over the internet.
2. Publisher: A publisher not only provides a way for people to communicate but also reviews the content of their communications. E.g., a book publisher has editors to review manuscripts; a newspaper has editors and permanent writing staff. Part of the publisher’s service is to lend credibility or prestige to the messages through its own (the publisher’s) name. That’s tied to the fact that the publisher takes some degree of responsibility for the messages they are publishing.
So you can sue a publisher for publishing harmful lies, but you can’t sue a paper manufacturer or an ISP for enabling people to disseminate harmful lies.
Social media companies are somewhere between platforms and publishers. As they become increasingly involved in content moderation, they become more like publishers. As a purely legal point, though, they continue to be protected from liability nevertheless: https://www.law.cornell.edu/uscode/text/47/230 (see esp. part (c)).
6. But what should the law be?
Perhaps we should change the law so that companies with extensive content moderation become treated as publishers? This doesn’t seem so great, though, because it would essentially force companies like Twitter to choose between (a) spending a ton of resources on reviewing every tweet that anyone makes, and (b) allowing any kind of bullshit to be spread on their platform, regardless of how objectionable they find it.
A better idea would be to require social media companies to have explicit guidelines on what they censor and to follow those guidelines, with the possibility of users suing the company for punitive damages if it violates its own policies. One rationale is that the violation of the company’s own guidelines is a kind of breach of contract between the company and the user.
This wouldn’t violate the free expression or other rights of the company, since the company remains free to choose its content guidelines. Would it make a difference, then? Yes: it would prevent companies from censoring content in ways that they are unwilling to acknowledge. Which is good because a content moderation policy that you’re embarrassed to state is probably one you shouldn’t have.
7. Has Twitter been biased?
God, yes. They have censored many people out of pure ideological bias. Apropos of the above point, when they do this, they generally just lie about it. E.g., the Hunter laptop story was censored under Twitter’s policy against distributing “hacked materials”. (The story didn’t contain any hacked materials, and everyone knew that.) The conservative talk show host Charlie Kirk was apparently labeled “NSFW” at one point (Not Safe For Work—which does not normally refer to something merely expressing conservative political views). The Babylon Bee was suspended for “hate speech” for naming a transwoman as their “man of the year”. (The policy: “You may not promote violence against or directly attack or threaten other people on the basis of race, ethnicity, national origin, caste, sexual orientation, gender, gender identity, religious affiliation, age, disability, or serious disease.” —https://help.twitter.com/en/rules-and-policies/hateful-conduct-policy. The Bee did not do any of those things.)
Twitter isn’t violating the First Amendment, but they have been violating their own stated principles. (Hopefully, Musk has put an end to that.) From the above page:
“Twitter’s mission is to give everyone the power to create and share ideas and information, and to express their opinions and beliefs without barriers. Free expression is a human right – we believe that everyone has a voice, and the right to use it. Our role is to serve the public conversation, which requires representation of a diverse range of perspectives.”
8. And it’s always wrong to censor expression for partisan political reasons, right?
Of course not, don’t be ridiculous.
Suppose you went back in time, and you somehow knew that by forcibly stopping Adolf Hitler from giving a particular speech, you would prevent him from coming to power. Should you do it? Of course, what a no-brainer. The usual hypothetical is about killing Hitler, but if you can stop him at the much lower cost of merely interfering with his liberty to give a speech at a particular time, that’s even more obviously right. The liberty violation is trivial compared to the vast harm to be prevented. Of course, that is a partisan political judgment, since a Nazi would disagree. But that doesn’t mean the judgment isn’t obviously correct.
So there’s nothing particularly shocking or unreasonable about a Democrat thinking that you should suppress speech to prevent Donald Trump from coming to power. No, I’m not saying Trump is Hitler. He doesn’t have to be literally Hitler to be worth stopping. It’s no surprise that Democrats think that Trump would have caused a great deal of harm if elected in 2020. Whether you agree or not, you can understand how a person would think that. If you think that in 2020, it’s also plausible to think that the harm Trump would cause would vastly outweigh the rights violation involved in stopping people from sharing a particular news story in the 3 weeks before the election.
So even if suppressing the Hunter Biden story was a violation of someone’s free expression rights, you can easily understand how someone would think it was justified. This doesn’t show that the Twitter staff were unreasonable. If anything, they’d be irrational if they didn’t think that.
9. So we should always try to suppress speech we disagree with?
Whoah, settle down there. Speech suppression has several problems that are commonly overlooked:
Historically, the people suppressing dissent are usually wrong. The more often you find yourself resorting to trying to silence speech, the more likely it is that you’re substantively wrong. The best way of finding out what is actually true involves free interaction among people with conflicting perspectives.
Suppressing dissent undermines your own view. Observers will infer, rationally and probably correctly, that you are doing it because you are unable to respond to the opposition’s arguments, which is probably because you are wrong.
Silencing dissent (and lying about it) undermines trust. You lose your credibility even for non-partisan messages where you’re not lying. This is why many conservatives now distrust the media and academia across the board.
Speech suppression makes people dumber. When you don’t have to respond to your opponents’ arguments, you become dumber, and so do the people who listen to you.
Most suppression is ineffectual, unless you control a totalitarian state. There are many other content providers, so the information you’re trying to suppress gets out anyway, and you just took the above disadvantages for nothing (or very little).
This is why most of the time, organizations like Twitter should leave people alone to say what they want. It leaves open the possibility that occasionally, it could be rational to suppress a particular message in a particular situation. (Good example: QAnon.) Unfortunately, most humans are bad judges and drastically overestimate how often this is justified.
10. Who should have been fired?
Even though the suppression of the Hunter Biden story was reasonable, it’s also reasonable to fire the employees who were most responsible, especially if they expressed no reservations at the time. Even if the suppression was justified, it should at least have made one uncomfortable. Moreover, in the future, we want people to be wary of suppressing stories, since most suppression is unjustified and people have a bias in favor of suppressing ideas they don’t like.
Mmm. I think you’re too quick on your first two points. It’s a gray area here. The DNC and RNC are very much a part of the government in any conventional sense, and they’re intricately tied to their candidates’ campaigns. When Congress can and do call up the board of social media companies to question and threaten them about their content, the government/private divide gets messy.
Consider this analogy. There’s a local sheriff election, and for whatever reason, it’s a heated race with lots of social media chatter. Suppose the cops who support candidate A get their spouses to monitor social media for private citizen’s posts in favor of candidate B, and those spouses then call the post owners and say “hi, I’m married to officer Blah who supports A, and I’d like to request you remove your post in favor of B. It’s just a request. Did I mention my husband patrols the area your restaurant is located? Anyway, just a request. Also, I play tennis with the health inspector. Bye” Suppose also these same cops have a history of letting personal vendettas influence their performance in service of certain citizens.
First amendment issue? It’s at least arguable.
The time travel thought experiment is inappropriate. As is common with misleading thought experiments, it assumes knowledge that people do not actually have. Even traveling through time, which is impossible, only gives you complete certainty about one counterfactual, the scenario where no intervention is made (or strictly, only those actually made in history). No one ever has even that much certain information, and that doesn’t give you certainty about whether a specific speech was critical to Hitler's rise. Maybe suppressing that particular speech will backfire, via a pre-internet Streisand effect. Consequentialism can argue for both sides of most disputes, depending on how you estimate the probabilities. Dealing with risk instead of certainty changes the calculation profoundly. And we are almost always dealing with risk.
A better thought experiment would not add inappropriate certainty, and demonstrate that we still might want to suppress speech without that certainty. I am biased, so I find it difficult to think of one.