What the Twitter Files Revealed about Power and Censorship
By Jon Hersey
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.
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.”