Twitter Admits in Court Filing: Elon Musk Is Simply Wrong About Government Interference At Twitter

Content Moderation

from the confirmation-idiocy dept

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, “[i]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:

Plaintiffs appear to contend (Pls.’ Ex. 1 at 16-17) that the new materials support an inference of state action in Twitter’s suspension of Trump’s account because they show that certain Twitter employees initially determined that Trump’s January 2021 Tweets (for which his account was ultimately suspended) did not violate Twitter’s policy against inciting violence. But these materials regarding Twitter’s internal deliberations and disagreements show no governmental participation with respect to Plaintiffs’ accounts. See Pls.’ Exs. A.5.5, A-49-53.5

Plaintiffs are also wrong (Ex. 1 at 15-16) that general calls from the Biden administration to address alleged COVID-19 misinformation support a plausible inference of state action in Twitter’s suspensions of Cuadros’s and Root’s accounts simply because they “had their Twitter accounts suspended or revoked due to Covid-19 content.” For one thing, most of the relevant communications date from Spring 2021 or later, after Cuadros and Roots’ suspensions in 2020 and early 2021, respectively, see Pls.’ Ex. A.46-A.47; Am. Compl. ¶¶124, 150. Such communications that “post-date the relevant conduct that allegedly injured Plaintiffs … do not establish [state] action.” Federal Agency of News LLC v. Facebook, Inc., 432 F. Supp. 3d 1107, 1125-26 (N.D. Cal. 2020). Additionally, the new materials contain only general calls on Twitter to “do more” to address COVID-19 misinformation and questions regarding why Twitter had not taken action against certain other accounts (not Plaintiffs’). Pls.’ Exs. A.43-A.48. Such requests to “do more to stop the spread of false or misleading COVID-19 information,” untethered to any specific threat or requirement to take any specific action against Plaintiffs, is “permissible persuasion” and not state action. Kennedy v. Warren, 66 F.4th 1199, 1205, 1207-12 (9th Cir. 2023). As this Court previously held, government actors are free to “urg[e]” private parties to take certain actions or “criticize” others without giving rise to state action. Dkt. 165 at 12-13. Because that is the most that the new materials suggest with respect to Cuadros and Root, the new materials would not change this Court’s dismissal of their claims.

Twitter’s filing is like a beat-by-beat debunking of the conspiracy theories pushed by the dude who owns Twitter. It’s really quite incredible.

First, the simple act of receiving information from the government, or of deciding to act upon that information, does not transform a private actor into a state actor. See O’Handley, 62 F.4th at 1160 (reports from government actors “flagg[ing] for Twitter’s review posts that potentially violated the company’s content-moderation policy” were not state action). While Plaintiffs have attempted to distinguish O’Handley on the basis of the repeated communications reflected in the new materials, (Ex. 1 at 13), O’Handley held that such “flag[s]” do not suggest state action even where done “on a repeated basis” through a dedicated, “priority” portal. Id. The very documents on which Plaintiffs rely establish that when governmental actors reported to social media companies content that potentially violated their terms of service, the companies, including Twitter, would “see if [the content] violated their terms of service,” and, “[i]f [it] did, they would follow their own policies” regarding what content-moderation action was appropriate. Pls.’ Ex. A.13 at 165:3-17; accord id. at 296:1-4 (“[W]e [the FBI] would send information about malign foreign influence to specific companies as we became aware of it, and then they would review it and determine if they needed to take action.”). In other words, Twitter made an independent assessment and acted accordingly.

Moreover, the “frequen[t] [] meetings” on which Plaintiffs rely heavily in attempting to show joint action fall even farther short of what was alleged in O’Handley because, as discussed supra at 7, they were wholly unrelated to the kinds of content-moderation decisions at issue here.

Second, contrary to Plaintiffs’ contention (Ex. 1 at 11-12), the fact that the government gave certain Twitter employees security clearance does not transform information sharing into state action. The necessity for security clearance reflects only the sensitive nature of the information being shared— i.e., efforts by “[f]oreign adversaries” to “undermine the legitimacy of the [2020] election,” Pls.’ Ex. A.22. It says nothing about whether Twitter would work hand-in-hand with the federal government. Again, when the FBI shared sensitive information regarding possible election interference, Twitter determined whether and how to respond. Pls.’ Ex. A.13 at 165:3-17, 296:1-4.

Third, Plaintiffs are also wrong (Ex. 1 at 12-13) that Twitter became a state actor because the FBI “pay[ed] Twitter millions of dollars for the staff [t]ime Twitter expended in handling the government’s censorship requests.” For one thing, the communication on which Plaintiffs rely in fact explains that Twitter was reimbursed $3 million pursuant to a “statutory right of reimbursement for time spent processing” “legal process” requests. Pls.’ Ex. A.34 (emphasis added). The “statutory right” at issue is that created under the Stored Communications Act for costs “incurred in searching for, assembling, reproducing, or otherwise providing” electronic communications requested by the government pursuant to a warrant. 18 U.S.C. § 2706(a), see also id. § 2703(a). The reimbursements were not for responding to requests to remove any accounts or content and thus are wholly irrelevant to Plaintiffs’ joint-action theory

And, in any event, a financial relationship supports joint action only where there is complete “financial integration” and “indispensability.” Vincent v. Trend W. Tech. Corp., 828 F.2d 563, 569 (9th Cir. 1987) (quotation marks omitted). During the period in which Twitter recovered $3 million (late 2019 through early 2021), the company was valued at approximately $30 billion. Even Plaintiffs do not argue that a $3 million payment would be indispensable to Twitter.

I mean, if you read Techdirt, you already knew about all this, because we debunked the nonsense “government paid Twitter to censor” story months ago, even as Elon Musk was falsely tweeting exactly that. And now, Elon’s own lawyers are admitting that the company’s owner is completely full of shit or too stupid to actually read any of the details in the Twitter files. It’s incredible.

It goes on. Remember how Elon keeps insisting that the government coerced Twitter to make content moderation decisions? Well, Twitter’s own lawyers say that’s absolute horseshit. I mean, much of the following basically is what my Techdirt posts have explained:

The new materials do not evince coercion because they contain no threat of government sanction premised on Twitter’s failure to suspend Plaintiffs’ accounts. As this Court already held, coercion requires “a concrete and specific government action, or threatened action” for failure to comply with a governmental dictate. Dkt. 165 at 11. Even calls from legislators to “do something” about Plaintiffs’ Tweets (specifically, Mr. Trump’s) do not suggest coercion absent “any threatening remark directed to Twitter.” Id. at 7. The Ninth Circuit has since affirmed the same basic conclusion, holding in O’Handley that “government officials do not violate the First Amendment when they request that a private intermediary not carry a third party’s speech so long as the officials do not threaten adverse consequences if the intermediary refuses to comply.” 62 F.4th at 1158. Like the Amended Complaint, the new materials show, at most, attempts by the government to persuade and not any threat of punitive action, and thus would not alter the Court’s dismissal of Plaintiffs’ First Amendment claims.

FBI Officials. None of the FBI’s communications with Twitter cited by Plaintiffs evince coercion because they do not contain a specific government demand to remove content—let alone one backed by the threat of government sanction. Instead, the new materials show that the agency issued general updates about their efforts to combat foreign interference in the 2020 election. For example, one FBI email notified Twitter that the agency issued a “joint advisory” on recent ransomware tactics, and another explained that the Treasury department seized domains used by foreign actors to orchestrate a “disinformation campaign.” Pls.’ Ex. A.38. These informational updates cannot be coercive because they merely convey information; there is no specific government demand to do anything—let alone one backed by government sanction.

So too with respect to the cited FBI emails flagging specific Tweets. The emails were phrased in advisory terms, flagging accounts they believed may violate Twitter’s policies—and Twitter employees received them as such, independently reviewing the flagged Tweets. See, e.g., Pls.’ Exs. A.30 (“The FBI San Francisco Emergency Operations Center sent us the attached report of 207 Tweets they believe may be in violation of our policies.”), A.31, A.40. None even requested—let alone commanded—Twitter to take down any content. And none threatened retaliatory action if Twitter did not remove the flagged Tweets. As in O’Handley, therefore, the FBI’s “flags” cannot amount to coercion because there was “no intimation that Twitter would suffer adverse consequences if it refused.” 62 F.4th at 1158. What is more, unlike O’Handley, not one of the cited communications contains a request to take any action whatsoever with respect to any of Plaintiffs’ accounts.6

Plaintiffs’ claim (Ex. 1 at 14) that the FBI’s “compensation of Twitter for responding to its requests” had coercive force is meritless. As a threshold matter, as discussed supra at 10, the new materials demonstrate only that Twitter exercised its statutory right—provided to all private actors—to seek reimbursement for time it spent processing a government official’s legal requests for information under the Stored Communications Act, 18 U.S.C. § 2706; see also id. § 2703. The payments therefore do not concern content moderation at all—let alone specific requests to take down content. And in any event, the Ninth Circuit has made clear that, under a coercion theory, “receipt of government funds is insufficient to convert a private [actor] into a state actor, even where virtually all of the [the party’s] income [i]s derived from government funding.” Heineke, 965 F.3d at 1013 (quotation marks omitted) (third alteration in original). Therefore, Plaintiffs’ reliance on those payments does not evince coercion.

What about the pressure from Congress? That too is garbage, admits Twitter:

Congress. The new materials do not contain any actionable threat by Congress tied to Twitter’s suspension of Plaintiffs’ accounts. First, Plaintiffs place much stock (Ex. 1 at 14-15) in a single FBI agent’s opinion that Twitter employees may have felt “pressure” by Members of Congress to adopt a more proactive approach to content moderation, Pls.’ Ex. A13 at 117:15-118:6. But a third-party’s opinion as to what Twitter’s employees might have felt is hardly dispositive. And in any event, “[g]enerating public pressure to motivate others to change their behavior is a core part of public discourse,” and is not coercion absent a specific threatened sanction for failure to comply….

White House Officials. The new materials do not evince any actionable threat by White House officials either. Plaintiffs rely (Ex. 1 at 16) on a single statement by a Twitter employee that “[t]he Biden team was not satisfied with Twitter’s enforcement approach as they wanted Twitter to do more and to deplatform several accounts,” Pls.’ Ex. A.47. But those exchanges took place in December 2022, id.— well after Plaintiffs’ suspensions, and so could not have compelled Twitter to suspend their accounts. Furthermore, the new materials fail to identify any threat of government sanction arising from the officials’ “dissatisfaction”; indeed, Twitter was only asked to join “other calls” to continue the dialogue

Basically, Twitter’s own lawyers are admitting in a court filing that the guy who owns their company is spewing utter nonsense about what the Twitter Files revealed. I don’t think I’ve ever seen anything quite like this.

Guy takes over company because he’s positive that there are awful things happening behind the scenes. Gives “full access” to a bunch of very ignorant journalists who are confused about what they find. Guy who now owns the company falsely insists that they proved what he believed all along, leading to the revival of a preternaturally stupid lawsuit… only to have the company’s lawyers basically tell the judge “ignore our stupid fucking owner, he can’t read or understand any of this.”

Filed Under: coercion, content moderation, donald trump, elon musk, elvis chan, fbi, matt taibbi, twitter files
Companies: twitter