Elon Musk recently granted journalists access to records of Twitter’s internal communications, leading to an avalanche of revelations about the company’s past content moderation practices—and the extent to which these were directed by the U.S. government. Perhaps not since the Snowden case has the public had such a glimpse into the U.S. Intelligence Community’s exploits against its own people.

Yet, many commentators have trained their attention on the “power” of social media companies, pointing to their “censorship” of users, with some arguing that this is grounds for giving government legal authority to regulate content moderation. This stems from a fundamental misunderstanding of what censorship is—and leads to “solutions” far more dangerous than the problem.

Responses to the #TwitterFiles display a fundamental misunderstanding of what censorship is—and point us toward “solutions” far more dangerous than the problem.” —@revivingreason
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‘Twitter’s Censors’

Reporting from journalists at The Free Press and independent journalist Matt Taibbi—dubbed the Twitter Files—shows how Twitter used “visibility filtering” to decrease the reach of certain users. These include Dr. Jay Bhattacharya, a Stanford professor of medicine, economics, and health policy who argued that COVID lockdowns were ineffective and even destructive. Twitter sharply curtailed Bhattacharya’s reach, placing his account on its Trends Blacklist so that no matter how many users engaged with his tweets, they couldn’t trend. This and similar examples have led many, including those who broke the story, to accuse Twitter of censorship.1

The reporters state, “Two prominent right-wing talk show hosts also came to the attention of Twitter’s censors”—and that a Twitter executive “claimed the [secret] censorship amounted to a public service.” Free Press readers are responding by echoing the censorship charge against Twitter. A commenter on this report, whose response has the highest number of “likes” as of this writing, said, “The censoring of Dr. Bhattacharya is especially damning” and that “he was censored” by “ideologues and Grievance Studies major[s] moonlighting as Twitter employees.”2

In another story remarking on the number of Democrats who work in Silicon Valley tech companies, the reporters write, “If institutions are just people, well, of course Twitter would more readily censor conservatives.” The top-voted comment on that story states, “Take it from someone whose family fled Communism: Freedom of speech, along with due process, is the bedrock of a functioning democracy. Twitter’s censorship is antithetical to the values that made America a superpower.”3

And Missouri Senator Josh Hawley responded to the Twitter Files in an email, writing, “Twitter censored conservatives, prevented users from seeing trending topics, and blacklisted accounts of prominent conservatives—all in secret. . . . The veil may be off Twitter, but other big tech platforms are still censoring conservatives in silence.”

Meanwhile, two other stories—“Twitter, The FBI Subsidiary” and “The FBI & the Hunter Biden Laptop”—document a very different kind of suppression of speech, showing that “Twitter’s contact with the FBI was constant and pervasive” since at least 2020.4

The second of these two details how the FBI coached Twitter’s then Head of Trust & Safety Yoel Roth on how to respond to the breaking story about Hunter Biden selling Ukrainian businessmen access to his father, then Vice President Joe Biden. The reporters write, “the FBI and other law enforcement agencies repeatedly primed Yoel Roth to dismiss reports of Hunter Biden’s laptop as a Russian ‘hack and leak’ operation.” Meta CEO Mark Zuckerberg said the FBI likewise warned his company to be wary of a Russian propaganda dump. So, they write, when the Hunter Biden laptop story broke, “within hours, Twitter and other social media companies censor[ed] the NY Post article, preventing it from spreading and, more importantly, undermining its credibility in the minds of many Americans.”5

“Twitter, The FBI Subsidiary” reveals how the FBI continuously flagged accounts for Twitter’s moderators to inspect more carefully. In one email, the FBI’s National Election Command Post asked the agency’s San Francisco field office to correspond with Twitter about “Tweets by certain accounts that may warrant additional action due to the accounts being utilized to spread misinformation about the upcoming election.”6 The request listed twenty-five accounts, and Twitter responded to it with a report on how it penalized seventeen of them, blocking tweets from nine accounts, temporarily suspending one, and permanently suspending seven. The article notes “the master-canine quality of the FBI’s relationship to Twitter” and also includes a September 2020 email from Twitter legal executive Stacia Cardille, reporting on her “monthly (soon to be weekly) 90-minute meeting with FBI, DOJ, DHS, ODNI [Office of the Director of National Intelligence], and industry peers on election threats.”7 Cardille’s email includes a laundry list of tasks that she and other Twitter employees were working on at the request of various government agencies and officials.

Strikingly, in contrast with the articles on “visibility filtering,” this last never mentions censorship, and the article on the laptop scandal does only in the previously quoted statement that “Twitter and other social media companies censor[ed] the NY Post article.”

Reducing the Power of the ‘Big Tech Oligarchs’

These stories continue a broader trend of skepticism “of this kind of corporate power,” as California Representative Ro Khanna puts it, referring to those whom other critics often call “the ‘big tech’ oligarchs in Silicon Valley.”8

“Today’s big tech companies have too much power—too much power over our economy, our society, and our democracy,” wrote Senator Elizabeth Warren in 2019.9 Months later, President Donald Trump began tweeting about “the censorship of AMERICAN CITIZENS on social media platforms,” and worries like this are not unique to America. Later that year, France’s digital affairs minister Cédric O told Wired, “Tech platforms have a footprint in our economies and our democracies that is a huge challenge for public power.”10 Such concerns are now pervasive. Free Press Founder Bari Weiss even wrote in her introduction to the Twitter Files series: “If I took anything away from my week at Twitter, it’s about power. It’s about how a handful of unelected people at a handful of private companies can influence public discourse profoundly. . . . But I’m not sure anyone should have that kind of power.”11

“To restore the balance of power in our democracy” and put “pressure on big tech companies to be more responsive to user concerns,” Warren advocates using antitrust law to reverse “illegal and anti-competitive tech mergers.”12 She would use this power, for instance, to reverse Meta’s acquisitions of Instagram and WhatsApp.

Across the aisle, Senator Hawley advocates amending Section 230 of the Communications Decency Act so platforms that moderate content in a “politically biased” way would lose the legal protections that keep them from being sued for unlawful things that users post (such as defamation and incitement to violence).13

Since 2020, state legislatures across the country have considered more than a dozen proposals, often referred to as “anti-censorship bills,” for reducing the power of social media companies to moderate their platforms. Two states, Florida and Texas, have signed such policies into law.

Florida’s law demands that social media companies “Apply censorship, deplatforming, and shadow banning standards in a consistent manner.” It prohibits them from changing their rules more than once every thirty days, from moderating any content posted by “a journalistic enterprise,” and from deplatforming any registered political candidate during his candidacy.14

The Texas law is similar, though its “Censorship Prohibited” section bans a broader swath of moderation practices, stating:

a social media platform may not censor a user, a user’s expression, or a user’s ability to receive the expression of another person based on: the viewpoint of the user or another person; the viewpoint represented in the user’s expression or another person’s expression; or a user’s geographic location.15

These and other responses claim to take power away from unaccountable companies and replace it with fair and clear-cut regulations enforced by government officials. As Khanna puts it, “Taking this enormous power out of the hands of just a few, having transparency, and having some independent place where these things can be adjudicated is important.”16

Censoring the ‘Censors’

But—as state and federal judges acknowledged in injunctions that quickly suspended both the Florida and Texas laws—such responses entail a host of harmful consequences, prohibiting companies from reacting to evolving threats and enabling users to exploit this weakness. For instance, under the Florida law, a gang of neo-Nazis could simply probe the bounds of the rules, then keep their posts just within them. If they posted via a “journalistic enterprise,” such as the neo-Nazi site Stormfront, they could skirt moderation entirely. Plus, any Floridian twenty-one or older who has lived in the state for at least two years can easily qualify as a write-in candidate for a variety of political offices, after which social media companies couldn’t touch his posts for the duration of his candidacy.17

Under the Texas law, online trolls would have even fewer hurdles, given that it bars platforms from removing content “based on the viewpoint of the user.” Essentially, companies would be powerless unless a user is linked to a proscribed terrorist organization or his post “directly incites criminal activity or consists of specific threats of violence targeted against a person or group because of their race, color, disability, religion, national origin or ancestry, age, sex, or status as a peace officer or judge.”18 But most online harassment neither directly incites criminal activity nor contains explicit and specific threats of violence, meaning that it’s fair game as far as the Texas law goes. As Justice Robert Pittman wrote in his injunction against the law, “HB 20 prohibits virtually all content moderation, the very tool that social media platforms employ to make their platforms safe, useful, and enjoyable for users.”19

That’s partly why courts have blocked these laws from going into effect, pending further scrutiny. They’ve argued that a platform’s content moderation is analogous to the editorial expression of a newspaper, which is, of course, protected by the First Amendment. As the Eleventh Circuit Court of Appeals put it,

Because a social-media platform itself “spe[aks]” by curating and delivering compilations of others’ speech—speech that may include messages ranging from Facebook’s promotion of authenticity, safety, privacy, and dignity to ProAmericaOnly’s “No BS | No LIBERALS”—a law that requires the platform to disseminate speech with which it disagrees interferes with its own message and thereby implicates its First Amendment rights.20

Or as Justice Pittman wrote, “private companies that use editorial judgment to choose whether to publish content . . . cannot be compelled by the government to publish other content.”21 In other words, so-called “anti-censorship” laws constitute a form of censorship against social media companies, violating their right to speak via content curation.

Weaponizing ‘Free Speech’ against Property Rights

That’s a flawed argument though.22 It’s of course true, as the Eleventh Circuit writes, that “Social-media platforms like Facebook, Twitter, YouTube, and TikTok are private companies with First Amendment rights.”23 But the operative rights in this context are not those protected by the First Amendment—they are property rights. The real reason companies have a right to moderate their platforms is because they own them.24 And this is key to understanding the kind of “power” that social media companies have: power over their own property.

If Jack Dorsey or Elon Musk or Mark Zuckerberg takes down someone’s posts or blocks his account, he’s simply using his own property as he sees fit. Of course, if he does so in violation of a contract, that’s fraud, and victims of fraud deserve justice. But is it accurate to call his action censorship? Can a person’s use of his property in accord with his own judgment constitute censorship?

Compare two scenarios: (1) A TV station blurs out nudity because its managers find it inappropriate for their audience; (2) it blurs out nudity because if it doesn’t, the government will fine the company tens of thousands of dollars and maybe even force the station off the air. The first is a voluntary editorial decision by which a company determines how to use its own property; the second is forced compliance with an organization legally and physically empowered to punish the station.

If users violate a social media company’s policies, the company may kick them off, just as any homeowner may kick out a rude guest. But just as rude guests remain free to speak their minds elsewhere, so do those kicked off social media platforms. Companies may regulate their own property, but they have no legal power to enforce their policies beyond it.

Only governments do. They can compel people, against their will, to pay fines, give up their property, stand trial, and go to jail. The defining feature of government, as political philosophers have long recognized, is that it has a legal monopoly on the use of physical force in a given geographic area. “A disastrous intellectual package-deal,” observed Ayn Rand in the early 1960s,

is the equation of economic power with political power. You have heard it expressed in such bromides as: “A hungry man is not free,” or “It makes no difference to a worker whether he takes orders from a businessman or from a bureaucrat.” Most people accept these equivocations—and yet they know that the poorest laborer in America is freer and more secure than the richest commissar in Soviet Russia. What is the basic, the essential, the crucial principle that differentiates freedom from slavery? It is the principle of voluntary action versus physical coercion or compulsion.

The difference between political power and any other kind of social “power,” between a government and any private organization, is the fact that a government holds a legal monopoly on the use of physical force.25

As one early 20th-century writer memorably put it (in a quote often misattributed to George Washington), “Government is not reason, it is not eloquence,—it is force!”26 It was in recognition of this crucial fact that James Madison formulated the First Amendment as he did: “Congress shall make no law . . . abridging the freedom of speech, or of the press.”

A legitimate conception of “censorship” takes into account this vital distinction between governments and everyone else. Censorship properly refers only to government using its coercive power to silence people.

Those who equate the actions of private companies—using their property according to their values—with censorship thereby obfuscate the meaning of that term. And they often use this “package-deal” in order to weaponize “free speech” against property rights.

This, for instance, is how the drafters of the Florida law justified their attempt to enforce their views and standards on social media companies: “Social media platforms hold a unique place in preserving first amendment protections for all Floridians.”27 But that’s absurd. The First Amendment protects freedom of speech, recognizing people’s right not to be silenced by their government. It does not grant some citizens a prerogative to use the property of others. There is no such thing as a right that entails violating others’ rights.

Freedom of speech does not give me a right to a New York Times column, and it’s not censorship if the Times refuses to print my submissions. Freedom of speech does not give an atheist a right to a book contract with a Christian publisher, and it’s not censorship if that publisher refuses to work with him. Freedom of speech does not give Hawley or Trump a right to a Twitter account, and it’s not censorship if Twitter minimizes their visibility or kicks them off. “No one has a vested right to force a platform to allow her to contribute to or consume social-media content,” writes the Eleventh Circuit. “The Constitution protects citizens from governmental efforts to restrict their access to social media.”28

The first statement recognizes the property rights of social media companies. The second refers to censorship, properly understood—“governmental efforts to restrict” voices and viewpoints from being heard.

The Ongoing Threat

If we can trust the evidence provided by the Free Press and Taibbi, then the second statement is also an exact description of what the U.S. Intelligence Community did. A handful of agencies, most conspicuously the FBI, coaxed Twitter into shutting down certain accounts, penalizing others, and extinguishing certain views and stories.

Some will argue that the FBI merely requested that Twitter do these things, and Twitter voluntarily complied. It’s true that the impropriety went both ways. Twitter employed a slew of ex-FBI personnel, some of whom no doubt had divided loyalties. And some Twitter employees working most closely with the agencies seemed eager to please. Stacia Cardille’s email about her “(soon to be weekly) 90-minute meeting with FBI, DOJ, DHS, ODNI, and industry peers” comes to mind. This part of her email, which she subtitled “Government-Industry Sync” (practically the definition of fascism), reveals her taste for the hunt.  She told Jim Baker, Twitter’s then Deputy General Counsel (and former top FBI lawyer), “I explicitly asked if there were any impediments with the ability of the government to share classified information or other relevant information with industry. FBI was adamant that no impediments to information sharing exist.”29

But the real threat is not Twitter—it’s the government. Remember, government is force. When government agents make “suggestions” to private companies, the subtext always is, “You’ve got a nice business here. It’d be a shame if something happened to it.”

Government agencies may prefer to use the carrot over the stick, but those they deal with know that the stick is always there. In this case, as an email between Twitter employees documents, the carrot was $3.4 million of American taxpayer money, paid through a “reimbursement program for our legal process response from the FBI.”30 But another email, in which an employee preps his or her team about what to expect in a meeting with the FBI, reveals the stick: “Their goal in this meeting is to convince us to produce on more FBI EDRs [emergency disclosure requests],” meaning that the FBI pressured Twitter to act on more of its requests for warrantless searches. “They plan on bringing in statistics on our rate of compliance, which they labeled ‘variable,’ and several ‘forehead knockers’ (i.e. situations where in the FBI view there is no reason why we would not have complied).”31

This is what we should be worried about. One user whose account was flagged by the FBI said, “My thoughts initially include 1. Seems like prima facie 1A [First Amendment] violation 2. Holy cow, me, an account with the reach of an amoeba 3. What else are they looking at?”32

Bingo. The most important revelation from the Twitter Files is not that “a handful of unelected people at a handful of private companies can influence public discourse profoundly.” We already knew that. What’s important is the prima facie evidence that the U.S. government has been inserting its tentacles into social media moderation and censoring Americans by stealth—in direct violation of the First Amendment.

To again quote the Eleventh Circuit, “The Constitution protects citizens from governmental efforts to restrict their access to social media.” Or at least it’s supposed to. But, once again, the Feds have been caught using the U.S. Constitution as toilet paper.

This, of course, is not an isolated problem. The email about the FBI’s presentation to the Twitter team states, “They repeatedly emphasized Twitter’s lower level of compliance in comparison with other platforms.”33

Tech companies ought to have absolute power over their platforms, just as any business or individual ought to have absolute power over his property. If users don’t like it, they can use an alternative or create their own. But that's moot when government censors are there to meet them at every turn.

The response to these startling revelations should be universal condemnation of, and legal action against, the FBI and others in the Intelligence Community—and, on the part of all social media companies, oaths never again to tolerate so much as a tip, hint, wink, nod, or cross look from government agents, and to alert the public the moment any such “suggestions” are made.

But, by and large, this is not the response we are seeing. That’s because, for those unclear about the difference between the power of companies and the power of governments, it’s easy to mistake the source of the problem. And, as we’re seeing, when people fail to make that distinction—when they fall for that “disastrous intellectual package-deal . . . the equation of economic power with political power”—they mistake wolves for sheep and vie to give them control of the flock.

When government agents make “suggestions” to private companies, the subtext always is: “You’ve got a nice business here. It’d be a shame if something happened to it.” —@revivingreason
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Endnotes

1. Bari Weiss et al., “Twitter’s Secret Blacklists,” Free Press, December 15, 2022, https://www.thefp.com/p/twitters-secret-blacklists.

2. Weiss et al., “Twitter’s Secret Blacklists.”

3. Bari Weiss, “Why We Went to Twitter,” Free Press, December 15, 2022, https://www.thefp.com/p/why-we-went-to-twitter.

4. Matt Taibbi, “The Twitter Files, Part Six: Twitter, the FBI Subsidiary,” Twitter, December 16, 2022, https://twitter.com/mtaibbi/status/1603857534737072128.

5. Michael Shellenberger, “Twitter Files, Part 7: The FBI & the Hunter Biden Laptop,” Twitter, December 19, 2022, https://twitter.com/ShellenbergerMD/status/1604871630613753856.

6. It also asked the field office to request “any location information associated with the accounts that Twitter will voluntarily provide” and that the company “preserve subscriber information and content information pending the issuance of a legal process.” See Taibbi, “Twitter, the FBI Subsidiary,” https://twitter.com/mtaibbi/status/1603857534737072128.

7. Taibbi, “Twitter, the FBI Subsidiary.”

8. Ro Khanna, interviewed by Bari Weiss, “The Twitter Files and the Future of the Democratic Party with Silicon Valley’s Congressman,” Free Press, December 17, 2022, https://www.thefp.com/p/ro-khanna-on-twitter-free-speech; Ron DeSantis, “Governor Ron DeSantis Signs Bill to Stop the Censorship of Floridians by Big Tech,” FLgov.com, May 24, 2021, https://www.flgov.com/2021/05/24/governor-ron-desantis-signs-bill-to-stop-the-censorship-of-floridians-by-big-tech/.

9. Elizabeth Warren, “Here’s How We Can Break up Big Tech,” Medium, March 8, 2019, https://medium.com/@teamwarren/heres-how-we-can-break-up-big-tech-9ad9e0da324c.

10. Donald J. Trump, Twitter, May 3, 2019, https://twitter.com/realDonaldTrump/status/1124447302544965634?s=20&t=Ij8A6XVjKqexSZnNy5PhxQ; Tim Simonite, “France Plans a Revolution to Rein in the Kings of Big Tech,” Wired, December 8, 2019, https://www.wired.com/story/france-plans-revolution-rein-kings-tech/.

11. Weiss, “Why We Went to Twitter.”

12. Warren, “Here’s How We Can Break up Big Tech.”

13. “Senator Hawley Introduces Legislation to Amend Section 230 Immunity for Big Tech Companies,” Hawley.Senate.Gov, June 19, 2019, https://www.hawley.senate.gov/senator-hawley-introduces-legislation-amend-section-230-immunity-big-tech-companies.

14. “SB 7072: Social Media Platforms,” Florida Senate, May 2, 2021, 17, https://www.flsenate.gov/Session/Bill/2021/7072/BillText/er/PDF.

15. “Bill: HB 20,” Texas Legislature Online, 11, https://capitol.texas.gov/tlodocs/872/billtext/pdf/HB00020F.pdf#navpanes=0.

16. Khanna, “The Twitter Files and the Future of the Democratic Party with Silicon Valley’s Congressman.”

17. For more details on the harmful consequences of both the Florida and Texas laws, see Daveed Gartenstein-Ross, Madison Urban, and Cody Wilson, “Anti-Censorship Legislation: A Flawed Attempt to Address a Legitimate Problem,” Lawfare, July 27, 2022,

https://www.lawfareblog.com/anti-censorship-legislation-flawed-attempt-address-legitimate-problem.

18. “Bill: HB 20,” 12–13.

19. Justice Robert Pittman, NetChoice v. Paxton, United States District Court for the Western District of Texas Austin Division, December 1, 2021, 29, https://pacer-documents.s3.amazonaws.com/170/1147630/181127370662.pdf.

20. United States Court of Appeals for the Eleventh Circuit, No. 21-12355, NetChoice v. Florida, 34–35, https://media.ca11.uscourts.gov/opinions/pub/files/202112355.pdf.

21. Pittman, NetChoice v. Paxton, 21.

22. The argument is flawed not only for the reasons I go on to discuss. The analogy to newspapers could also have also unintended consequences. Newspapers, via their editorial staff, review and approve every piece of content before it’s published. Social media companies do not. Newspapers are liable for defamation and incitement. Social media companies are not—not yet, that is. But there are people, such as Hawley, trying to change this, and their argument is that if social media companies want to remain shielded from the same liability as newspapers, they can’t act like newspapers. That is, they can’t both claim editorial expression as a defense and deny culpability for what ultimately gets expressed on their platforms. It’s one or the other, or so the argument goes. Analogies can be misleading. As Thomas Reid wrote, “men are naturally disposed to conceive a greater similitude in things than there really is,” and so “conclusions built on analogy stand on a slippery foundation.” Social media is a new and categorically distinct phenomenon.

23. Eleventh Circuit, No. 21-12355, 19.

24. The Eleventh Circuit comes close but never quite states this:

“First—and this would be too obvious to mention if it weren’t so often lost or obscured in political rhetoric—platforms are private enterprises, not governmental (or even quasi-governmental) entities.” And further, although “the Constitution protects citizens from governmental efforts to restrict their access to social media, . . . no one has a vested right to force a platform to allow her to contribute to or consume social-media content.”

No one has that right because there can be no such thing as a right to the property or services of others.

The court doesn’t discuss property rights largely because it’s merely responding to the arguments that the lawyers made. And the lawyers probably didn’t make property-rights based arguments because America is suffering from a recession of legal protection for property rights (See Cornerstone of Liberty: Property Rights in 21st Century America by Timothy Sandefur and Christina Sandefur).

25. Ayn Rand, “America’s Persecuted Minority: Big Business,” Capitalism: The Unknown Ideal (New York: Signet, 1967), 42–43.

26. “Government Is Like Fire, a Dangerous Servant and a Fearful Master,” Quote Investigator, updated December 28, 2016, https://quoteinvestigator.com/2015/05/26/fire-servant/.

27. “SB 7072: Social Media Platforms,” 3.

28. Eleventh Circuit, No. 21-12355, 5.

29. Taibbi, “Twitter, the FBI Subsidiary.”

30. Shellenberger, “The FBI & the Hunter Biden Laptop,” https://twitter.com/ShellenbergerMD/status/1604908670063906817?s=20&t=tyIYiqHAmQVfVPb1oI2Cbg.

31. Shellenberger, “The FBI & the Hunter Biden Laptop.”

32. Taibbi, “Twitter, the FBI Subsidiary,” https://twitter.com/mtaibbi/status/1603857624633688065?s=20&t=QEYDc5WbSSRxVi5xtyPaKg.

33. Shellenberger, “The FBI & the Hunter Biden Laptop.”

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