In this photo illustration, the image of Elon Musk is displayed on a computer screen and the logo of twitter is reflected in Ankara, Turkiye on October 06, 2022.
Muhammed Selim Korkutata / Anadolu Agency via Getty
Journalist Matt Taibbi on Friday published new details 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 does and does not publish.
Twitter’s suppression of a story about Hunter Biden’s laptop has come under increased scrutiny in the two years since it was published, especially as additional news outlets have verified some of the laptop’s contents. But whether or not the decision was wrong, it wasn’t a violation of the First Amendment of the Constitution.
On October 14, 2020, one month before the election, the New York Post published a story that claimed to include materials taken from a laptop that belonged to Joe Biden’s son Hunter. Twitter quickly suppressed the distribution of the story, initially blocking 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 after receiving heavy backlash, and former CEO Jack Dorsey and others from the company have said the initial decision to block the story from being shared 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 taking over Twitter in October, Elon Musk promised to release details about the company’s handling of the story. On Friday, Matt Taibbi, an independent journalist, published a lengthy Twitter thread that included internal communications 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 requested be removed included nude photos that would have violated Twitter’s terms of service under its non-consensual nudity policy.
Musk, who said this year he voted Republican for the first time, quickly criticized the Biden team.
“Twitter acting by itself to suppress free speech is not a 1st amendment violation, but acting under orders from the government to suppress free speech, with no judicial review, is,” Musk wrote, despite the fact that the Biden campaign was a private entity, and therefore not the government.
But regardless of what Musk or pundits on Fox News assert — or whether or not the decision to suppress the story was right or ethical — Twitter’s actions were not a violation of the First Amendment.
Congress shall make no law…
“The clear answer, the 100 percent clear answer, is no,” Doron Kalir, a professor at Cleveland-Marshall College of Law, told Insider. “Twitter is not a state actor and the First Amendment applies only to state actors.”
The actual text of the amendment states it plainly: “Congress shall make no law… abridging the freedom of speech, or of the press.”
Congress. Which courts have established extends to the government at all federal, state, and local levels. So whether or not Twitter could violate the First Amendment, depends on whether or not it can be considered the government. But courts across the US have ruled that sites like Twitter, YouTube, and Facebook are not state entities. They are independent companies.
“Federal courts in the United State have ruled time and again, and as recently as 2020, that those digital platforms are not state actors, therefore they are not the government, and the government cannot restrict them in any way,” Kalir said, referencing the 2020 case Prager University v. Google LLC, in which the Ninth Circuit Court of Appeals ruled YouTube was not a state actor.
Which means rather than 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 discretion to grant or refuse requests from the government
As for the requests to remove specific content, as far as we know, they were exactly that: requests.
“Both the state, the Trump White House, and the Biden team were asking Twitter, and Twitter was under no obligation to either oblige or refuse those requests,” Kalir said.
Unlike the Biden team, the White House was a state actor. But Kalir noted that cooperation between media and government 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 also include requests from a state actor to postpone publishing a story or even to withhold names or other information for national security concerns or other reasons. And again, outlets have the discretion to agree or not agree to such requests.
“At some point, when the news outlet sheds its independent features and becomes a funnel for government information or disinformation, then it’s no longer a private publication and you could claim that the First Amendment should be implicated,” Kalir explained, but added that the Twitter case “does not even come close to the line.”
He said he knew of no precedent in the US in which a court ruled a newspaper or media outlet was acting as an arm of the government.