ZadekpediaWhat the Files were said to be
On The Bob Zadek Show, the Twitter Files were described as a collection of documents released by a number of different journalists from Twitter over the past three or four years, recounting decisions Twitter had made and engagements it had had with the federal government ‘Jawboning against Speech’ with Will Duffield (2023). Their release was set in motion by Elon Musk’s purchase of all of the outstanding stock of Twitter, an economic activity that Bob Zadek framed as Musk owning Twitter the way Zadek owns his laptop ‘Jawboning against Speech’ with Will Duffield (2023). Zadek described Musk as now the sole owner of Twitter, exposing heretofore private information in the Twitter files and in its servers about Twitter’s behavior regarding matters of censorship Life!Line - Guest hosting: Robert Mahoney on The Infodemic (2023).
The constitutional question
Zadek posed what he called a hard legal and constitutional question: when does the Constitution start to have something to say about the behavior of a private company? He asked whether there is a point at which a private company becomes enough like government that it is government—in which case, he said, the First Amendment applies and Twitter has as little right to censor as does the government Life!Line - Guest hosting: Robert Mahoney on The Infodemic (2023). He put the same point in terms of Twitter behaving like a federal agency, arguing that if a court so determined for First Amendment purposes, what Twitter did would be illegal and it could not do it. Zadek stressed that we do not know how it will turn out.
Guest Robert Mahoney, author of The Infodemic: How Censorship and Lies Made the World Sicker and Less Free, said that when he and Joel Simon did their research, Twitter was a different company under the ownership of Jack Dorsey, and that the Twitter Files revelations were new and not part of what they were looking at back in 2020. He said the federal government was not telling Twitter what to do, but that Twitter was acting under public pressure to edit certain content, particularly around tweets from political leaders including Donald Trump and around cures or treatments for COVID such as anti-malarials and hydroxychloroquine, which were at first promoted and then de-amplified by Twitter Life!Line - Guest hosting: Robert Mahoney on The Infodemic (2023).
Jawboning against speech
Will Duffield said there were two important streams of information about jawboning recently, the first being the Twitter Files, and the second a series of lawsuits by the states of Missouri and Louisiana aimed at the CDC and the Biden administration, which revealed communications with Facebook that looked fairly similar to what the Twitter Files showed—evidence the effort was aimed not at one platform but at many ‘Jawboning against Speech’ with Will Duffield (2023). He described a sequence in which members of Congress browbeat platforms in public to moderate more or remove foreign influence; through the Files the private side of that story became visible, with platforms turning to the FBI and then an alphabet soup of intelligence community agencies and State Department operations to forward on requests, all in the background while Congress threatened to regulate them if they did not do more.
Zadek corrected Duffield’s word “decisions”: yes, Twitter made a decision, but it was the kind of decision explained by a dark alley and a gun at your head—your money or your life—a choice, but not quite ‘Jawboning against Speech’ with Will Duffield (2023). Duffield agreed, saying jawboning is often compared to the mafioso suggestion that you have an awfully nice business there, and that it would be a terrible shame if something were to happen to it. Zadek modified the phrase that the power to tax is the power to destroy into the power to regulate is the power to destroy, saying Twitter knew its life could be hell if the power of government were aimed at it, that it could be taken apart or attacked on antitrust grounds, and that government hides behind Twitter to carry out Twitter’s policies ‘Jawboning against Speech’ with Will Duffield (2023).
Remedies
Duffield said nothing is foolproof and the issue is difficult to tackle directly through the courts, even though there is a clear First Amendment issue, because most of the punishment would accrue to the private intermediary being punished for having been bullied. For jawboning by members of Congress, he said the Speech and Debate Clause of the Constitution makes it very hard to prevent, because it lets members debate any subject freely and prevents them from being held liable for their speech even when it constitutes jawboning; the best solutions there are a congressional rule or voting them out ‘Jawboning against Speech’ with Will Duffield (2023). For executive branch jawboning revealed through the Twitter Files and the lawsuits, he said more can be done, because federal employees are not protected the way members of Congress are and can be prohibited from demanding the removal of speech—though he noted the constitutional difficulty that such employees have speech rights of their own, and that some conversations concern unlawful communications, foreign influence operations, or ISIS. His most fruitful route was reporting requirements: if government employees must report every private communication with platforms, the record may discourage demands and make it easier for individuals to sue when jawboning leads to removal of their speech.
Zadek offered his own example of jawboning: the Dear Colleague Letter, in which the Department of Education wrote to college presidents and provosts during the Obama administration stating its view that colleges should protect the rights of women under Title IX. Zadek noted that the Department of Education exists primarily to disperse money, so a letter from it carried the weight of life and death for a recipient—your money or your life ‘Jawboning against Speech’ with Will Duffield (2023). Duffield added that the power of the purse is supposed to be reserved to Congress and that past jawboning cases involved government contracts and the defense space, where steel companies faced the threat that previously gotten contracts would be awarded to competitors. He dated the current vogue of jawboning to the wake of the 2016 election, when Senator Dianne Feinstein told the platforms they had created their services, it was their problem, and if they did not do something about it, Congress would. During COVID, he said, it intensified again.
Across episodes
The topic is touched in the January 2, 2023 Life!Line episode with Robert Mahoney, the January 31, 2023 episode with Will Duffield, and the February 1, 2023 episode also with Duffield. The episodes show a shift of emphasis rather than a development in the argument: Mahoney, closest in time to the releases, stressed that the Files were new and not part of his book’s research, while Duffield by the following weeks had absorbed them into a broader account of jawboning in which the Files are one of two streams of information, the other being the Missouri and Louisiana lawsuits, and moved from describing the pressure to proposing remedies.