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The Tweets the FBI were asking to be removed were speech protected under the first amendment. It is very likely that this is unconstitutional but at a minimum t

The Tweets the FBI were asking to be removed were speech protected under the first amendment. It is very likely that this is unconstitutional but at a minimum this violates a strong norm in the US that the State does not interfere with people’s speech. When it comes to twitter a court had previously found that Trump could not even block people from his personal Twitter account (a final ruling was never made because trump left office: https://amp.theguardian.com/us-news/2021/apr/05/trump-twitter-block-case-supreme-court-decision https://amp.theguardian.com/us-news/2021/apr/05/trump-twitte... )and now people are going to seriously argue that it’s ok for government officials to advise that Tweets or people should be banned.

deleted 4y ago
[deleted]
refurb 4y ago
Precisely. There is no issue with the FBI investigating crimes using the Twitter platform. I would hope that Twitter tells the FBI to “come back with a warrant” if they want non-public information. But the FBI flagging content for removal. Including “disinformation”? That goes well beyond the remit of the FBI and violates numerous norms of law enforcement influence over public speech. A good analogy would be a debate club being held in a private bar and the police coming by and saying "yeah, that guy you invited to debate, you think you can "handle" that for us?". It’s frankly shocking how many people on HN are like “meh…what’s the big deal?”
- Apocryphon 4y ago
  The FBI already does this IRL even pre-Twitter, and no one batted an eye. https://www.fbi.gov/how-we-can-help-you/safety-resources/scams-and-safety/common-scams-and-crimes/election-crimes-and-security https://www.fbi.gov/how-we-can-help-you/safety-resources/sca... > Intentionally deceiving qualified voters to prevent them from voting is voter suppression—and it is a federal crime. > Bad actors use various methods to spread disinformation about voting, such as social media platforms, texting, or peer-to-peer messaging applications on smartphones. They may provide misleading information about the time, manner, or place of voting. This can include inaccurate election dates or false claims about voting qualifications or methods, such as false information suggesting that one may vote by text, which is not allowed in any jurisdiction. If that debate club guy was spreading voter misinformation, the FBI would come by and investigate him, too.
  - refurb 4y ago
    Right, investigate them for committing a crime. That’s the FBI’s job. If they see voter suppression on Twitter they can get a warrant forcing Twitter to turn over the account identity (and prosecute them) and take down the tweet. But that’s not what’s happening here is it? The FBI is asking Twitter to take down tweets (some of them obvious jokes) without a warrant or evidence of any crime being committed. That’s what’s happening. No different than your local cops coming to the bar you like and asking for you to be kicked out. Would that be ok?
    - Apocryphon 4y ago
      As per another informative response in this thread, that is allowed by various court rulings, even if it is not a great look. https://reason.com/volokh/2021/07/19/when-government-urges-private-entities-to-restrict-others-speech/ https://reason.com/volokh/2021/07/19/when-government-urges-p... > [A.] Generally speaking, courts have said "yes, that's fine," so long as the government speech doesn't coerce the intermediaries by threatening prosecution, lawsuit, or various forms of retaliation. (Indeed, I understand that government officials not uncommonly ask newspapers, for instance, not to publish certain information that they say would harm national security or interfere with an ongoing criminal investigation.) Here's a sample of appellate cases so holding: > [B.] On the other hand, where courts find that the government speech implicitly threatened retaliation, rather than simply exhorting or encouraging third parties to block speech, that's unconstitutional. > [C.] Does it matter whether the government acts systematically, setting up a pipeline for requests to the media? One can imagine courts being influenced by this, as they are in some other areas of the law; but I know of no First Amendment cases so holding. > [D.] Now in some other areas of constitutional law, this question of government requests to private actors is treated differently, at least by some courts. Say that you rummage through a roommate's papers, find evidence that he's committing a crime, and send it to the police. You haven't violated the Fourth Amendment, because you're a private actor. (Whether you might have committed some tort or crime is a separate question.) And the police haven't violated the Fourth Amendment, because they didn't perform the search. The evidence can be used against the roommate. > But say that the police ask you to rummage through the roommate's papers. That rummaging may become a search governed by the Fourth Amendment, at least in the eyes of some courts: "the government might violate a defendant's rights by 'instigat[ing]' or 'encourag[ing]' a private party to search a defendant on its behalf." > Likewise, "In the Fifth Amendment context, courts have held that the government might violate a defendant's rights by coercing or encouraging a private party to extract a confession from a criminal defendant." More broadly, the Supreme Court has said that "a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State." > So maybe there's room for courts to shift to a model where the government's mere encouragement of private speech restrictions is enough to constitute a First Amendment violation on the government's part. So basically it sounds like this could be the makings of a very fascinating case, if it holds up in court, but there is ample legal precedent of the government doing pretty much what happened on Twitter, already. > No different than your local cops coming to the bar you like and asking for you to be kicked out. Would that be ok? I may not like it, and it may not be morally okay, but I am almost certain cops are able to do that, because that is the system we have created.
ethanbond 4y ago
The government’s right to request information control and private entities’ right to decline those requests is well established and non-controversial. They cannot coerce or threaten, but there’s no evidence of that happening, and if Twitter felt otherwise they could go ahead and sue the government and win. Well established.

deleted 4y ago

[deleted]

refurb 4y ago

Precisely. There is no issue with the FBI investigating crimes using the Twitter platform. I would hope that Twitter tells the FBI to “come back with a warrant” if they want non-public information. But the FBI flagging content for removal. Including “disinformation”? That goes well beyond the remit of the FBI and violates numerous norms of law enforcement influence over public speech. A good analogy would be a debate club being held in a private bar and the police coming by and saying "yeah, that guy you invited to debate, you think you can "handle" that for us?". It’s frankly shocking how many people on HN are like “meh…what’s the big deal?”

Apocryphon 4y ago
The FBI already does this IRL even pre-Twitter, and no one batted an eye. https://www.fbi.gov/how-we-can-help-you/safety-resources/scams-and-safety/common-scams-and-crimes/election-crimes-and-security https://www.fbi.gov/how-we-can-help-you/safety-resources/sca... > Intentionally deceiving qualified voters to prevent them from voting is voter suppression—and it is a federal crime. > Bad actors use various methods to spread disinformation about voting, such as social media platforms, texting, or peer-to-peer messaging applications on smartphones. They may provide misleading information about the time, manner, or place of voting. This can include inaccurate election dates or false claims about voting qualifications or methods, such as false information suggesting that one may vote by text, which is not allowed in any jurisdiction. If that debate club guy was spreading voter misinformation, the FBI would come by and investigate him, too.
- refurb 4y ago
  Right, investigate them for committing a crime. That’s the FBI’s job. If they see voter suppression on Twitter they can get a warrant forcing Twitter to turn over the account identity (and prosecute them) and take down the tweet. But that’s not what’s happening here is it? The FBI is asking Twitter to take down tweets (some of them obvious jokes) without a warrant or evidence of any crime being committed. That’s what’s happening. No different than your local cops coming to the bar you like and asking for you to be kicked out. Would that be ok?
  - Apocryphon 4y ago
    As per another informative response in this thread, that is allowed by various court rulings, even if it is not a great look. https://reason.com/volokh/2021/07/19/when-government-urges-private-entities-to-restrict-others-speech/ https://reason.com/volokh/2021/07/19/when-government-urges-p... > [A.] Generally speaking, courts have said "yes, that's fine," so long as the government speech doesn't coerce the intermediaries by threatening prosecution, lawsuit, or various forms of retaliation. (Indeed, I understand that government officials not uncommonly ask newspapers, for instance, not to publish certain information that they say would harm national security or interfere with an ongoing criminal investigation.) Here's a sample of appellate cases so holding: > [B.] On the other hand, where courts find that the government speech implicitly threatened retaliation, rather than simply exhorting or encouraging third parties to block speech, that's unconstitutional. > [C.] Does it matter whether the government acts systematically, setting up a pipeline for requests to the media? One can imagine courts being influenced by this, as they are in some other areas of the law; but I know of no First Amendment cases so holding. > [D.] Now in some other areas of constitutional law, this question of government requests to private actors is treated differently, at least by some courts. Say that you rummage through a roommate's papers, find evidence that he's committing a crime, and send it to the police. You haven't violated the Fourth Amendment, because you're a private actor. (Whether you might have committed some tort or crime is a separate question.) And the police haven't violated the Fourth Amendment, because they didn't perform the search. The evidence can be used against the roommate. > But say that the police ask you to rummage through the roommate's papers. That rummaging may become a search governed by the Fourth Amendment, at least in the eyes of some courts: "the government might violate a defendant's rights by 'instigat[ing]' or 'encourag[ing]' a private party to search a defendant on its behalf." > Likewise, "In the Fifth Amendment context, courts have held that the government might violate a defendant's rights by coercing or encouraging a private party to extract a confession from a criminal defendant." More broadly, the Supreme Court has said that "a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State." > So maybe there's room for courts to shift to a model where the government's mere encouragement of private speech restrictions is enough to constitute a First Amendment violation on the government's part. So basically it sounds like this could be the makings of a very fascinating case, if it holds up in court, but there is ample legal precedent of the government doing pretty much what happened on Twitter, already. > No different than your local cops coming to the bar you like and asking for you to be kicked out. Would that be ok? I may not like it, and it may not be morally okay, but I am almost certain cops are able to do that, because that is the system we have created.

ethanbond 4y ago

The government’s right to request information control and private entities’ right to decline those requests is well established and non-controversial. They cannot coerce or threaten, but there’s no evidence of that happening, and if Twitter felt otherwise they could go ahead and sue the government and win. Well established.