Did The FBI Violate The First Amendment When It Colluded With Twitter?

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Alexa Schwerha Contributor
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  • The FBI may have violated the First Amendment rights of Twitter users when it flagged accounts for the social media platform to review, several legal experts told the Daily Caller News Foundation.  
  • Twitter became an “agent of the government” when it worked with the FBI to silence specific accounts at the agency’s request, Hans von Spakovsky, manager of the Heritage Foundation’s Election Law Reform Initiative and a senior legal fellow, told the DCNF.
  • Ari Cohn, free speech counsel at TechFreedom, told the DCNF that while the findings of the Twitter Files were “interesting,” he doesn’t believe there are “many legal conclusions to draw from it.”

The FBI has repeatedly flagged Twitter accounts for the social media platform to review and censor over the last few years, raising questions as to whether the agency violated the First Amendment rights of Twitter users, legal experts told the Daily Caller News Foundation.

The Twitter Files, a series of revelations by several journalists based on internal Twitter communications, revealed that FBI agents colluded with Twitter executives to censor users and suppress information, while the agency paid Twitter $3.5 million to compensate them for their time processing the FBI’s requests. This partnership raises questions as to whether the FBI may have violated user’s constitutional rights, legal experts told the DCNF, with some arguing the agency’s involvement in Twitter censorship constitutes a First Amendment violation. (RELATED: ‘Attempting To Discredit The Agency’: FBI Responds To ‘Twitter Files’)

Aaron Terr, director of public advocacy at the Foundation for Individual Rights and Expression (FIRE), told the DCNF that users deserve to know the extent of how the government communicated with Twitter and that it could raise possible “First Amendment issues, although it could be tricky to prove.”

“Twitter is a private company, so the First Amendment doesn’t apply to its independent content moderation decisions. But the First Amendment bars the government from coercing a private actor like Twitter to censor speech,” he explained. “Still, it can be difficult to prove coercion. If all the FBI did was direct Twitter’s attention to content that might violate its terms of service, and Twitter could voluntarily decide what to do about it, that probably isn’t coercive in a way that violates the First Amendment.”

Mike Davis, founder and president of the Internet Accountability Project (IAP) and former Chief Counsel for Nominations to Senate Judiciary Chairman Chuck Grassley, told the DCNF that the FBI’s involvement in working with “Big Tech” to censor American users is a “First Amendment violation that can’t be tolerated.”

“The government cannot outsource unconstitutional actions to the private sector to evade the Constitution. This is likely much more pervasive than Twitter, too. Just imagine what the FBI is doing with Facebook and Google, which are 10 times and 25 times bigger than Twitter,” he said.

The IAP is a conservative watchdog group which is “alarmed by the role Big Tech plays in our society,” according to its website.

The FBI told the DCNF that those who criticize the agency’s involvement are “conspiracy theorists” and who are “feeding the American public misinformation with the sole purpose of attempting to discredit the agency.”

“The correspondence between the FBI and Twitter show nothing more than examples of our traditional, longstanding and ongoing federal government and private sector engagements, which involve numerous companies over multiple sectors and industries,” the FBI said. “As evidenced in the correspondence, the FBI provides critical information to the private sector in an effort to allow them to protect themselves and their customers. The men and women of the FBI work every day to protect the American public.”

Ari Cohn, free speech counsel at TechFreedom, told the DCNF that while the findings of the Twitter Files were “interesting,” he doesn’t believe there are “many legal conclusions to draw from it.”

“Foremost, Twitter is a private company not bound by the First Amendment, and it in fact has a First Amendment right to decide what users and content they will allow,” he said. “Twitter’s content moderation decisions as a general matter do not violate the First Amendment.”

“Twitter was not coerced, though it did take the government’s flags and perspective into account,” he continued. “To transform Twitter’s moderation into state action requires more than what we’ve seen in the Twitter Files.”

Cohn said that users should still be skeptical of the government’s involvement with social media platforms.

“Everyone should be concerned with government attempts to influence what private parties say or publish. It’s simply none of the government’s business, and they should stay out of it,” he concluded.

Hans von Spakovsky, manager of the Heritage Foundation’s Election Law Reform Initiative and a senior legal fellow, told the DCNF that Twitter could be considered an “agent of the government” and, therefore, have violated users’ First Amendment rights.

I think any court looking at this would consider that Twitter became an agent of the government, and that means that the government was, in fact, violating the First Amendment [by] engaging in censorship of American citizens,” he said.

Twitter, itself, also enforced strict mechanisms on the backend of its platform which permitted executives to “shadow ban” and heavily restrict users’ accounts without their knowledge. Executives used a tool called “visibility filtering” to control what information was most prevalent on Twitter feeds, the files showed.

Accounts that were heavily restricted included Turning Point USA founder Charlie Kirk, commentator Dan Bongino and conservative watchdog “Libs of TikTok.”

von Spakovsky told the DCNF that such filtering would be a violation of the First Amendment “if it was being done at the direction of government agents.”

Speaking on what should occur next, Davis told the DCNF that House Republicans should push to investigate the FBI’s involvement when they take control in January. He also called for House Republicans to “subpoena all communications regarding censorship between Big Tech and the federal government.”

“It’s long past time to break up Big Tech monopolists and their outsized influence over American society,” he said.

von Spakovsky claimed that users who were targeted by the FBI should invoke Title 42 Section 1983 of the U.S. Code which permits citizens to sue the government when constitutional rights are violated.

“Even if what the government did was legal, the pressure it put on Twitter to censor lawful speech should concern anyone who cares about free expression as a fundamental value,” Terr said.

Twitter did not immediately respond to the Daily Caller News Foundation’s request for comment.

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