Censorship by surrogate: Why Musk’s document dump could be a game-changer
“Handled.” That one word, in response to a 2020 demand to censor a list of Twitter users, speaks volumes about the thousands of documents released by Twitter’s new owner, Elon Musk, on Friday night. As many of us have long suspected, there were back channels between Twitter and the Biden 2020 presidential campaign and the Democratic National Committee (DNC) to ban critics or remove negative stories. Those who attempted to discuss the scandal were simply “handled” and nothing else had to be said.
Finally, the New York Post was suspended from Twitter for reporting on the Hunter Biden laptop scandal. Twitter even blocked users from sharing the Post’s story using a tool designed for child pornography. Even Trump’s press secretary Kayleigh McEnany was suspended for links to the scandal.
Twitter’s ex-security chief, Yoel Roth, later said the decision was a “mistake” but the story “set off every one of my fine-tuned APT28 hack and leak campaign alarm bells.” The reference to the Russian disinformation operation APT28 matched false claims by former US intelligence officers that the laptop was “classic disinformation”.
The Russian disinformation claim was never particularly credible. The Biden campaign never denied that the laptop was Hunter’s; it left it to its media allies. Moreover, recipients of important emails were able to confirm these communications, and US intelligence quickly dismissed the Russian disinformation claim.
The bottom line is that there was no direct evidence of a hack or a Russian conspiracy. Even Roth later admitted that he and others did not believe there was a clear basis for blocking the story, but they did it anyway.
Musk’s dumped Twitter documents not only confirm the worst expectations of some of us, but contain many of the usual suspects of Twitter critics. The documents do not show a clear role or knowledge of former Twitter CEO Jack Dorsey. Instead, the chief censor appears to be Vijaya Gadde, Twitter’s former head of legal affairs who has been criticized as a leading figure against free speech on social media.
There is also James Baker, the controversial former FBI attorney general who is involved in the agency’s Russia collusion investigation. He left the FBI and became Twitter’s assistant general counsel.
Some Twitter executives expressed unease about censoring the story, including former global communications director Brandon Borrman, who asked, “Can we truthfully claim that this is part of politics?” Baker jumped in to support censorship, saying “it’s reasonable for us to assume that they might have been [hacked] and this caution is justified.” Baker thus appears as someone who sees a Russian in every Rorschach inkblot. There was no evidence that the Post’s Hunter Biden material was hacked — none. Nevertheless, Baker found a basis for a “reasonable” assumption that Russians or hackers were behind it.
Many recognized the decision for what it was. A former Twitter employee reportedly told journalist Matt Taibbi: “Hacking was the excuse, but within a few hours, pretty much everyone realized it wasn’t going to last.”
Obviously, bias in the media is nothing new to Washington; newspapers and networks have long run interference for favored politicians or parties. However, this was not a case of a media company nailing its own story to protect a friend. It was a social media company that provides a platform for people to communicate with each other about political, social and personal views. Social media is now more popular as a form of communication than the telephone.
Censoring communications on Twitter is more akin to the telephone company agreeing to disconnect anyone who calls with unfavorable terms. And at the apparent request of the 2020 Biden campaign and the DNC, Twitter appears to have routinely stopped others from discussing or hearing opposing views.
The internal company documents released by Musk reinforce what we have previously seen in other cases of Twitter censorship. A recent federal filing revealed a 2021 email between Twitter executives and Carol Crawford, the Centers for Disease Control and Prevention’s chief digital media officer. Crawford’s back-channel communications sought to censor other “unapproved opinions” on social media; Twitter responded that “with our CEO testifying before Congress this week [it] is hard.”
At the time, Twitter’s Dorsey and other technology chiefs were about to appear at a House hearing to discuss “misinformation” on social media and its “content modification” policies. I had just testified about private censorship in circumventing the First Amendment as a type of censorship-by-surrogate. Dorsey and the other CEOs were asked about my warning about a “little brother” problem, a problem that private entities do for the government that they cannot legally do for themselves. In response, Dorsey insisted that “we don’t have a censorship department.”
The implications of these documents become more serious as the Biden campaign became the Biden administration. These documents show that a back channel existed with Biden campaign officials, but the same back channels appear to have continued to be used by Biden administration officials. If so, that would be when Twitter may have gone from a campaign ally to a surrogate for government censorship. As I have previously written, the administration cannot censor critics and cannot use agents for that purpose under the First Amendment.
That is precisely what Musk is now claiming. When the documents were released, he tweeted: “Twitter acting per se to suppress free speech is not a violation of the First Amendment, but acting under orders from the government to suppress free speech, without judicial review, is.”
The incoming Republican House majority has promised to investigate — and Musk has made that process much easier by delivering on his promise of full transparency.
Washington has fully mobilized in its all-out war against Musk. Still, with a record number of users signing up with Twitter, it seems clear that the public isn’t buying censorship. They want more, not less, freedom of speech.
That may be why political figures like Hillary Clinton have enlisted foreign governments to force censorship on citizens: if Twitter can’t be trusted to censor, perhaps the EU would be the ideal surrogate to rid social media of these meddling posters.
The release of these documents has provided a level of exposure rarely seen in Washington, where such cases are usually only “handled”. The political and media corporations are generally unstoppable forces – but they may have met their first solid object in Elon Musk.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.