It is amazing the degree to which some people will engage in confirmation bias and believe absolute nonsense, even as the facts show the opposite is true. Over the past few months, we’ve gone through the various “Twitter Files” releases, and pointed out over and over again how the
explanations people gave for them simply
don’t match up with the underlying documents.
To date, not a single document revealed has shown what people now falsely believe: that the US government and Twitter were working together to “censor” people based on their political viewpoints. Literally none of that has been shown at all. Instead, what’s been shown is that Twitter had a competent trust & safety team that debated tough questions around how to apply policies for users on their platform and did not seem at all politically motivated in their decisions. Furthermore, while various government entities sometimes did communicate with the company, there’s little evidence of any attempt by government officials to compel Twitter to moderate in any particular way, and Twitter staff regularly and repeatedly rebuffed any attempt by government officials to go after certain users or content.
Now, as you may recall, two years ago, a few months after Donald Trump was banned from Twitter, Facebook, and YouTube, he sued the companies, claiming that the
banning violated the 1st Amendment. This was hilariously stupid for many reasons, not the least of which is because at the time of the banning Donald Trump was the President of the United States, and these companies were very much private entities. The 1st Amendment restricts the government, not private entities, and it absolutely does not restrict private companies from banning the President of the United States should the President violate a site’s rules.
As expected, the case
went poorly for Trump, leading to it
being dismissed. It is currently on appeal. However, in early May, Trump’s lawyers filed a motion to effectively try to reopen the case at the district court, arguing that the
Twitter Files changed everything, and that now there was proof that Trump’s 1st Amendment rights were violated.
In October of 2022, after the entry of this Court’s Judgment, Twitter was acquired by Elon Musk. Shortly thereafter, Mr. Musk invited several journalists to review Twitter’s internal records. Allowing these journalists to search for evidence that Twitter censored content that was otherwise compliant with Twitter’s “TOS”, the journalists disclosed their findings in a series of posts on Twitter collectively known as the Twitter Files. As set out in the attached Rule 60 motion, the Twitter Files confirm Plaintiffs’ allegations that Twitter engaged in a widespread censorship campaign that not only violated the TOS but, as much of the censorship was the result of unlawful government influence, violated the First Amendment.
I had been thinking about writing this up as a story, but things got busy, and last week Twitter (which, again, is now owned by Elon Musk who has repeatedly made ridiculously misleading statements about what the Twitter Files showed) filed its response, where they say (with risk of sanctions on the line) that
this is all bullshit and nothing in the Twitter Files says what Trump (and Elon, and a bunch of his fans) claim it says. This is pretty fucking damning to anyone who believed the nonsense Twitter Files narrative.
The new materials do not plausibly suggest that Twitter suspended any of Plaintiffs’ accounts pursuant to any state-created right or rule of conduct. As this Court held, Lugar’s first prong requires a “clear,” government-imposed rule. Dkt. 165 at 6. But, as with Plaintiffs’ Amended Complaint, the new materials contain only a “grab-bag” of communications about varied topics, none establishing a state-imposed rule responsible for Plaintiffs’ challenged content-moderation decisions. The new materials cover topics ranging, for example, from Hunter Biden’s laptop, Pls.’ Exs. A.14 & A.27-A.28, to foreign interference in the 2020 election, Pls.’ Exs. A.13 at, e.g., 35:15-41:4, A.22, A.37, A.38, to techniques used in malware and ransomware attacks, Pls.’ Ex. A.38. As with the allegations in the Amended Complaint, “t is … not plausible to conclude that Twitter or any other listener could discern a clear state rule” from such varied communications. Dkt. 165 at 6. The new materials would not change this Court’s dismissal of Plaintiffs’ First Amendment claims for this reason alone.
Moreover, a rule of conduct is imposed by the state only if backed by the force of law, as with a statute or regulation. See Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999) (regulatory requirements can satisfy Lugar’s first prong). Here, nothing in the new materials suggests any statute or regulation dictating or authorizing Twitter’s content-moderation decisions with respect to Plaintiffs’ accounts. To the contrary, the new materials show that Twitter takes content-moderation actions pursuant to its own rules and policies. As attested to by FBI Agent Elvis Chan, when the FBI reported content to social media companies, they would “alert the social media companies to see if [the content] violated their terms of service,” and the social media companies would then “follow their own policies” regarding what actions to take, if any. Pls.’ Ex. A.13 at 165:9-22 (emphases added); accord id. at 267:19-23, 295:24-296:4. And general calls from the Biden administration for Twitter and other social media companies to “do more” to address alleged misinformation, see Pls.’ Ex. A.47, fail to suggest a state-imposed rule of conduct for the same reasons this Court already held the Amended Complaint’s allegations insufficient: “[T]he comments of a handful of elected officials are a far cry from a ‘rule of decision for which the State is responsible’” and do not impose any “clear rule,” let alone one with the force of law. Dkt. 165 at 6. The new materials thus would not change this Court’s determination that Plaintiffs have not alleged any deprivation caused by a rule of conduct imposed by the State.
Later on it goes further:
www.techdirt.com
