Elon Musk’s release of internal Twitter communications to Substack journalists, Matt Taibbi and Bari Weiss is stirring the political pot in a big way. So far, we don’t have all the documents from the Twitter archive or even all those made available to Taibbi and Weiss. Nor do we have their full analyses of same. But what has been released promises to be more damning to Twitter, its former principals, the FBI and the 2020 Biden Campaign Committee than most people had feared (or hoped). Because we’re still at the speculation stage, I’m not now commenting on the countless issues that will or could be raised. It’s just too early for that.
The point of this post is to raise the possibility that Twitter may have played the part, not of a private entity, but an arm of the government, specifically the FBI. As such, its behavior, particularly regarding the Hunter Biden laptop fiasco, may well have rendered it legally a public entity required to comply with the Constitution and federal civil rights statutes.
Several times in the past, I’ve argued that Big Tech companies that wield vast power to limit or allow speech should be required by statute to behave as if they were governmental entities, i.e., to allow all the speech required of a city, state or federal agency. To me, that would be a straightforward solution to the problem of private companies using their private status to quash free expression that, in this brave new world of social media, requires their services to exist. Moreover, it would provide a ready-made set of legal guidelines – 200 years of jurisprudence on what is and isn’t permissible speech – on which those platforms could rely in deciding individual post/don’t-post questions.
But, in the absence of such a statute, we have a significant body of law on the issue of when a private entity is considered a public one for the purpose of deciding constitutional and civil rights issues. Now, that law isn’t exactly crystal clear. Essentially, whether a private party acts in a governmental capacity depends on the facts of each individual case and there are three possibilities for such a finding:
[First,] the public function test, which asks whether the private entity performed a function traditionally and exclusively performed by government;100 [second,] the compulsion test, which asks whether the state significantly encouraged or exercised coercive power over the private entity’s actions;101 and [third,] the joint participation test, which asks whether the role of private actors was “pervasively entwined” with public institutions and officials.102
Now, in the case of Twitter’s actions leading up to Election Day 2020, it apparent that neither #’s 1 nor 2 above applies. Clearly, censoring news stories on behalf of one presidential candidate and against another isn’t a traditional function of government. Nor do we know of any compulsion exercised by the FBI or the Department of Justice against Twitter. Indeed, it appears the social media platform was all too willing to do the government’s bidding.
But the third option above looks tailor-made for Twitter. According to the New York Post, Twitter officials met with as many as seven FBI agents on a weekly basis and the agent in charge of those meetings was on record as virulently anti-Trump. As reported by the Post’s Miranda Devine, the FBI had had the laptop in its possession for about a year at the time it alerted Twitter’s head of “site integrity,” Yoel Roth and others of a possible “hack-and-leak” operation involving Hunter Biden that would come sometime in October. (Twitter’s policy was to refuse to post material that had been “hacked and leaked.”)
Of course, since the FBI had the laptop in its possession, knew what was on it and that it hadn’t been hacked, it was impossible that the material thereon could have been. But it reported the matter to Twitter anyway and, when the Post ran its Biden laptop bombshell, Twitter executives immediately quashed the story and suspended the Post’s account. They did so despite the fact that, within two days of the FBI’s contact, internal emails showed that Twitter employees knew that “hack-and-leak” was nothing but a pretext to keep the story from becoming widely circulated.
Two weeks later, Twitter partially lifted the suspension, but by then, the official story – uncritically parroted by the MSM – that the laptop “had all the earmarks of Russian disinformation,” had taken firm root and crowded out all other possible explanations. In short, Twitter had given the MSM vital time in which to produce an unchallengeable pro-Biden/anti-Trump narrative, just days before the election.
Those weekly meetings, plus the fact that Twitter never seems to have acted contrary to FBI wishes regarding censorship of tweets, while not alone dispositive of the issue, strongly suggest exactly the type of “joint participation” the law envisions to impose on nominally private entities the constitutional requirements of governmental ones.
Plus,
The FBI also warned Facebook to be on “high alert” for a “dump” of “Russian propaganda” before the 2020 election, in terms specific enough that it “fit the pattern” of The Post’s story, CEO Mark Zuckerberg told podcast host Joe Rogan in August.
Facebook also censored The Post ahead of Twitter’s throttling of the story in October, pending “fact checks” that never appear to have been done.
In short, the peek we’ve received at the inner doings of social media giants and the FBI strongly suggests the possibility that, in fact, they were acting as a cat’s paw for the nation’s most powerful law-enforcement agency. If so, they could face liability under federal civil rights statutes, a fact that could be of considerable import when those very doings may have meant the difference in the outcome of a presidential election and the loss of a once-in-a-decade scoop to the nation’s fourth-largest newspaper.
