The Twitter Files are a collection of documents released by a number of different journalists from Twitter over the past three or four years, recounting decisions that Twitter has made and engagements that it has had with the federal government. They were set in motion by Elon Musk’s purchase of all of the outstanding stock of Twitter. ‘Jawboning against Speech’ with Will Duffield (2023)
Origins and release
Bob Zadek described Musk’s purchase as an economic activity that “seemed impulsive to me,” after which Musk owned Twitter the way Zadek owns his laptop. That purchase, Zadek said, set in motion the Twitter Files and the baring of what he called a scary aspect or new approach of jawboning, challenging core free speech in America. ‘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 over the recent past, specifically regarding matters of censorship. He characterized the release as a drip, drip, drip over time. [[episodes/life_line___guest_hosting__robert_mahoney_on__the|Life!Line - Guest hosting: Robert Mahoney on The Infodemic (2023)]]
Robert Mahoney, co-author with Joel Simon of The Infodemic: How Censorship and Lies Made the World Sicker and Less Free, said that when they did their research for the book, Twitter was a different company under the ownership of Jack Dorsey, and that it had nothing to do with Elon Musk. Everything Zadek had been saying about the revelations in the last week in the Twitter Files was new and was not part of what they were looking at back in 2020. [[episodes/life_line___guest_hosting__robert_mahoney_on__the|Life!Line - Guest hosting: Robert Mahoney on The Infodemic (2023)]]
What the documents show
Will Duffield described two important streams of information about jawboning recently, the first being the Twitter Files. He said that before these documents became public, and before the level of engagement the CDC had with Facebook was known, such decisions were taken to be solely private, and platforms suffered reputational harms as a result. People thought of the platforms as biased or out to get them at times, until the tranches of emails and the like appeared, because they were not able to see government’s hand behind the scenes. The New Face of Government Censorship (2023)
Duffield said that much of what he wrote about in his paper concerned congressional jawboning: members of Congress in public, browbeating platforms to moderate more or remove foreign influence. It was only through the Twitter Files, he said, that the private side of that story or the aftereffect became visible—after being browbeaten by Congress and jawboned by them, platforms turned to the FBI and then an alphabet soup of intelligence community agencies, State Department operations, and others to forward on requests, all in the background while Congress threatened to regulate them if they did not do more. ‘Jawboning against Speech’ with Will Duffield (2023)
Duffield also pointed to a series of lawsuits by the states of Missouri and Louisiana aimed at the CDC and the Biden administration, which revealed a lot of their communications with Facebook that look fairly similar to what is seen in the Twitter Files. This was not just aimed at one platform, he said, but at many. The government, and in particular the intelligence community after 2016 in the wake of concerns about Russian influence, slowly overwhelmed these platforms with requests and demands, all backed by the specter of potential regulation or other regulatory harm if platforms did not comply and change their tunes. When overwhelmed, especially facing multitudes of suggested foreign accounts, platforms failed to do their due diligence, did not have the time or resources to, and defaulted into accepting these government demands and removing speech in response to them. The New Face of Government Censorship (2023)
The constitutional question
Zadek framed the central legal question raised by the disclosures: when does the Constitution start to have something to say about the behavior of a private company? He asked whether there is a point in time when a private company becomes enough like government that it is government, and said that if it crosses that line and behaves more like government or does the government’s bidding, then it is not a big jump to say it is government, so that the First Amendment applies and Twitter has as little right to censor as does the government. [[episodes/life_line___guest_hosting__robert_mahoney_on__the|Life!Line - Guest hosting: Robert Mahoney on The Infodemic (2023)]]
Zadek said that Twitter, albeit a private enterprise, had lots of very interesting, intense, intimate contacts with the federal government, and that the federal government had a substantial degree of control over what Twitter allowed to be published, allowed to be circulated, allowed to be promoted, and what Twitter suppressed so that it was not available to the public. In doing so, he said, Twitter got to do the bidding of the government. He asked how that differs from a federal agency doing it, and said that if Twitter was behaving like a federal agency, it would not be a giant step for a court to determine that insofar as the First Amendment is concerned, Twitter is a governmental agency—not for all purposes, but for First Amendment purposes. [[episodes/life_line___guest_hosting__robert_mahoney_on__the|Life!Line - Guest hosting: Robert Mahoney on The Infodemic (2023)]]
Mahoney qualified the picture. He said that from what he had seen of the revelations of the last week that Musk had been putting out, he did not think the federal government was telling Twitter what to do. Rather, Twitter was acting under public pressure to edit certain content, particularly around tweets that came from some political leaders, including Donald Trump, around cures or treatments for COVID, such as anti-malarials, hydroxychloroquine, and others. Those things were at first promoted and then Twitter started to de-amplify them—in other words, not to promote them. [[episodes/life_line___guest_hosting__robert_mahoney_on__the|Life!Line - Guest hosting: Robert Mahoney on The Infodemic (2023)]]
Jawboning and the “decision” correction
On the January 31, 2023 episode, Duffield said the Twitter Files recount decisions that Twitter has made and engagements that it has had with the federal government. Zadek interrupted to correct him, saying he did not usually do this, and that he would put air quotes around “decisions.” Duffield accepted the correction, saying that many of these decisions are not entirely Twitter’s, because there is another hand involved in making them, or pressure behind the scenes that was not previously known. ‘Jawboning against Speech’ with Will Duffield (2023)
Zadek expanded on the point: yes, Twitter did make a decision, but it was the kind of decision explained by a dark alley, a gun at your head—your money or your life. Duffield agreed that jawboning is often compared to the kind of mafioso suggestion that you have an awfully nice business there. ‘Jawboning against Speech’ with Will Duffield (2023)
Zadek said that the power to regulate is the power to destroy, modifying the phrase that the power to tax is the power to destroy. He said Twitter knows full well that its life could be hell if the power of government is aimed toward it, that it could be taken apart or attacked on antitrust grounds, and that any regulated industry is vulnerable and has little choice but to follow the instructions of government and take the heat for what is really governmental action. The New Face of Government Censorship (2023)
Remedies
Duffield said there are a few remedies and that nothing is foolproof. He said 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, which is being punished for having been bullied. When it comes to jawboning by members of Congress, he said it is very hard to prevent because of a part of the Constitution called the Speech and Debate Clause, which is intended to allow Congress to freely debate any subject but prevents Congress members from being held liable for their speech, even if that speech constitutes jawboning. The New Face of Government Censorship (2023)
The best solutions, Duffield said, are either a congressional rule—because Congress is a club and can make rules for its members, in the same way as it limits nepotism or speaking out of turn—or voting out a member of Congress who has jawboned egregiously. He called both not terribly fulfilling solutions. Outside the congressional space, with the 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, so they can be prohibited from demanding the removal of speech. He noted this becomes constitutionally tricky because federal employees have speech rights of their own, and in some cases their conversations with platforms concern speech that is actually unlawful—criminals communicating with one another, foreign influence operations, ISIS. The New Face of Government Censorship (2023)
Duffield called reporting requirements perhaps the most fruitful route: if government employees or officials are required to report and identify every time they have communicated in private with these platforms, the knowledge that they are going on the record may discourage some demands, and it would make it easier for individuals to sue where jawboning leads to the removal of their speech, because they can more easily identify the actual government official responsible. He said sunlight on the administrative or agency jawboning side may ultimately be the most useful disinfectant, while Congress is a tougher nut to crack. The New Face of Government Censorship (2023)
Across episodes: the pandemic and the earlier origin
The excerpts show the same question argued across the three episodes, with a shift in emphasis. In the January 2 episode, Zadek pressed the constitutional question of when a private company becomes government for First Amendment purposes, while Mahoney, whose book examined social media across platforms and countries, said he did not think the federal government was telling Twitter what to do and described Twitter acting under public pressure. [[episodes/life_line___guest_hosting__robert_mahoney_on__the|Life!Line - Guest hosting: Robert Mahoney on The Infodemic (2023)]]
In the two February 1 excerpts, Duffield located the start of the current vogue of jawboning earlier than the pandemic—in the wake of the 2016 election around concerns about Russian influence or interference, when Senator Dianne Feinstein told platforms that they had created their services, that it was their problem, and that if they did not do something about it, Congress would. He said that opened up this new age of jawboning, and that during COVID it almost intensified again, with a new emergency and President Biden claiming that platforms were killing people by failing to remove COVID disinformation. The New Face of Government Censorship (2023)
Zadek, for his part, said the jawboning became overwhelmingly apparent as a byproduct of the pandemic, and that putting aside the Twitter Files, which were later, jawboning was happening below the radar. He also cited Title IX abuse on college campuses, defended by organizations such as FIRE, as having started with the Dear Colleague Letter—the Department of Education deciding without legislation what it perceived to be a rape culture on college campuses, and writing a letter to college presidents and provosts. Zadek noted that the Department of Education exists primarily to disperse money to the states or to the colleges, so that a letter saying what the department thought universities should be doing carried the weight of life and death to the recipient. Duffield responded that this is why the power of the purse is in a sense supposed to be reserved to Congress, and cited past jawboning cases involving government contracts and the ability to disperse money in the defense space, including how steel companies were jawboned through the threat that contracts previously gotten would be awarded to a competitor. The New Face of Government Censorship (2023)
What the sources do not cover
The excerpts do not state the contents of any particular Twitter Files release, the names of the journalists who released the documents, or the outcome of the Missouri and Louisiana lawsuits. They do not describe any court holding on whether Twitter or another platform is a state actor for First Amendment purposes, and Zadek explicitly said it is not known how the question will turn out. The excerpts also do not give the date of Musk’s purchase of Twitter, the terms of any congressional rule Duffield proposed, or any legislative text.