The Volokh Conspiracy
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Rep. Khanna on Twitter, Free Speech, and the Hunter Biden Story
A Democratic member of Congress laments how Twitter handled the New York Post's reporting on Hunter Biden's laptop.
Last Friday, Twitter released internal e-mails and other files related to the company's decision to suppress the New York Post's reporting about on the contents of Hunter Biden's recovered laptop in advance of the 2020 election. The materials were released through a Twitter thread by independent writer Matt Taibbi,
In today's WSJ, Democratic Representative Ro Khanna explains why he laments Twitter's handling of the controversy, even though it may have benefitted his political party.
Twitter's suppression [of the Hunter Biden story] violated the First Amendment principles Brennan articulated in [New York Times v.] Sullivan. Twitter banned links to the story and suspended accounts that shared it, including President Trump's press secretary and the New York Post itself—arguing that the story violated company policy because it contained information obtained through illegal means. Under the same logic, they'd have to suspend any account that posted the Pentagon Papers, which is protected by New York Times Co. v. U.S. (1971), or the story of Mr. Trump's leaked tax returns.
As Silicon Valley's representative in Congress, I reached out to Twitter at the time to share these concerns. In an email meant to be private, but recently made public by Matt Taibbi's "Twitter Files" thread, I wrote to Twitter's general counsel that the company's actions "seemed to be a violation of First Amendment principles." Although Twitter is a private actor not legally bound by the First Amendment, Twitter has come to function as a modern public square. As such, Twitter has a responsibility to the public to allow the free exchange of ideas and open debate.
Unlike many who comment on such controversies, Rep. Khanna recognizes that whether a company like Twitter is legally obligated to respect free speech principles is a seprate question from whether it is desirable or beneficial for it to do so. That Twitter is not required to provide a robust forum for divergent views and perspectives does not mean it should not do so. Put another way, pointing out that Twitter is not bound by the First Amendment is no answer to criticism of Twitter for selectively suppressing speech or information that is disagreeable or disfavored.
More from Rep. Khanna:
I agreed with Twitter's decision to take down explicit photos of Hunter Biden and to prevent algorithmic amplification of the Post story. But there's a difference between sharing and artificially amplifying. Social-media companies shouldn't have bots that amplify speech in the first place—they add chaos to the dialogue. They certainly shouldn't be abusing people's data by using it to target them with sensational content. We need to uphold the sovereign right to our data. Even so, the story itself shouldn't have been censored, and those who shared it shouldn't have been suspended. That went too far.
To the extent Twitter makes value decisions on the forum—types of conspiracy theories or hate-inciting content that gets removed or isn't promoted—the company should have clear and public criteria. Elon Musk has said Twitter will be "more aggressive than ever, using technology to reduce the reach of hateful Tweets and prevent their amplification." Transparency into how decisions are made, including some recourse to appeal, is crucial—with some independent committee or board that will thoughtfully consider a complaint of censorship.
A robust defense of First Amendment principles online is more important than ever. Citizens in our polarized country need to have conversations with each other based on mutual respect. Suppressing speech we don't like leaves us blind to alternative perspectives that help us see the whole, complex truth.
