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Here's the 1st amendment for reference: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abrid

Here's the 1st amendment for reference: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." How exactly does the FBI asking a private sector company to take down posts violate this amendment?

spoiler 4y ago
When governments ask companies to do something, they usually must comply though lol
- ethanbond 4y ago
  Literally not true. They can simply decline and if the Govt wants to come after them they can sue each other and in cases where it’s legal content then Twitter will win. This is extremely well established and not even remotely weird or some dark unexplored corner of Constitutional law. Edit: Here’s a link with some relevant case law. 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... Disagree with the established precedent if you want, but if you do, I’d recommend picking a different battleground than whatever this Twitter Files fiasco is. This stuff isn’t even on the questionable end of the spectrum.
  - koolba 4y ago
    Any voluntary request from the government comes with an implied consequence for refusal or an implied benefit for acceptance. They don’t have to say it out loud for the message to come across.
    - ethanbond 4y ago
      By this logic the government can’t use the Report Tweet button either, right?
      - koolba 4y ago
        Unless it’s in the furtherance of catching or stopping an active criminal, I’d say no. Why would we be wasting government resources alerting private companies of their terms of service anyway?
        ethanbond 4y ago
        I don’t think it’s a waste of government resources to be reporting people who are trying to suppress voting by e.g. giving incorrect polling dates or locations. Also don’t think it’s a waste to try to prevent ISIS recruiting material from reaching more confused and angry young men. Both are legal though!
        TeeMassive 4y ago
        The Taliban were on Twitter...
        ethanbond 4y ago
        And?
        TeeMassive 4y ago
        Well clearly the FBI don't find the Taliban bad enough for some reasons...
        ethanbond 4y ago
        Or… it turns out that the FBI has specific mandates and they include things like “counter election disinformation” and it doesn’t include things like “report every bad guy on Twitter.” This is only confusing starting from your own incorrect premise.
        TeeMassive 4y ago
    - ModernMech 4y ago
      If Twitter was being coerced by the government, they could have said so in court. They are a multibillion dollar multinational corporation with deep pockets and connection in high places, not a helpless mom and pop.
    - candybar 4y ago
      Republicans - and Trump specifically - have been directly threatening Twitter for years to try to get them to act in a way that benefits them and you think this "implied consequence for refusal" is some big issue?
  - Amezarak 4y ago
    You're right, this isn't unexplored. The ACLU says this specific example is unconstitutional. There's also been legal cases about this in the past. It's illegal for the government to do this. "They could sue if they don't want to do it" does not make the request legal. https://twitter.com/aclu/status/1587198479608303622 https://twitter.com/aclu/status/1587198479608303622 What's shocking is that people's perceptions of what's legal have changed so dramatically in just a few years. I can't imagine anyone making these arguments in 2005. It seems some powerful interests have been able to successfully co-opt SV companies and change the entire public conversation about what the First Amendment means. I would like to know a lot more about what's going on here. I don't think the same tired arguments about "disinformation" and "social harmony" that have been trotted out for centuries against free speech have suddenly gained all this credence by accident.
    - ethanbond 4y ago
      Not clear what you mean by “this specific example” given that your linked article is about DHS’s defunct Disinformation board and AFAIK this board never even became operational (and in any case hasn’t been mentioned in Twitter Files). It seems to me rather that all these folks shocked to hear this stuff just haven’t been paying attention to either their high school civics course or to current events of the last 20 years. You actually think the FBI doesn’t report content? Obviously they do. You don’t think the FBI gets a privileged reporting line over newuser1848391? Obviously they do. You don’t think Twitter regularly gets content moderation requests, from governments or elsewhere, that they simply decline? Obviously they do. And you don’t think they sometimes get content moderation requests from governments or elsewhere that they oblige? Obviously they do. Here’s a good overview of relevant case law: 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... Will you also be surprised to hear that almost all private companies can (and many will) simply choose to hand over your private data to the government upon warrantless request?
      - Amezarak 4y ago
        I never said I was shocked about it. The government and particularly agencies like the FBI have long engaged in illegal abuses of their power, ranging from illegal speech restrictions like this to the knowing legal persecution of innocent people to outright murder and blackmail. Nor is it news to me that companies are increasingly voluntarily sharing vast amounts of data with the government, to the point that the surveillance state we feared has come to pass as a corporate-state partnership. What I’m surprised about is the increasing number of people who see it as normal and acceptable, or choose to dismiss it as “oh, this has been happening.” Yeah, that doesn’t make it okay.
- UncleMeat 4y ago
  That’s why every company has adopted NISTs password guidance and those that refused had their CEOs thrown in prison.
- acdha 4y ago
  What do you hope to accomplish with a low-effort comment which everyone knows is wrong? We’re talking about the FBI here so one of the events I’d expect most HN commenters to be familiar with is their dispute with Apple: https://en.wikipedia.org/wiki/FBI%E2%80%93Apple_encryption_dispute https://en.wikipedia.org/wiki/FBI%E2%80%93Apple_encryption_d... Since then, Apple has stepped up their end to end encryption stance, which seems like the opposite of what you’re implying.
themgt 4y ago
How exactly does the FBI asking a private sector company to take down posts violate this amendment? In our system, law including the Constitution is interpreted by the judiciary. You could as well ask "where is the Miranda warning in the Bill of Rights?" The actual precedents around "jawboning" are murky and contradictory, but it's well-established that the government can step over the line in violating constitutionally protected rights via informal coercion. https://www.lawfareblog.com/informal-government-coercion-and-problem-jawboning https://www.lawfareblog.com/informal-government-coercion-and...
- candybar 4y ago
  In that case, Republican politicians publicly complaining about social media moderation in threatening terms would be far more problematic than the FBI notifying Twitter of tweets that are in violation of their TOS. Yet I don't remember the "Free Speech" proponents doing anything but applauding these types of "informal coercion."
  - mikrotikker 4y ago
    That's one of the falsiest equivalencies I ever did see
    - candybar 4y ago
      It's actually not equivalent - we're seeing a lot of accuasations here that the FBI "coerced" Twitter or that the FBI requests were "partisan" - there's actually no evidence in these files for these claims. On the other hand, there's plenty of public evidence that Republican politicians were trying to coerce Twitter to accomplish explicitly partisan aims. Yet here we are.
emmelaich 4y ago
https://en.wikipedia.org/wiki/Penumbra_(law) https://en.wikipedia.org/wiki/Penumbra_(law)
- notacoward 4y ago
  Oh, you mean the doctrine that is openly vilified by the "originalist" majority of the US Supreme Court? Not that consistency is their strong point or anything, but maybe that's not the authoritative answer you thought it was. FWIW, to appease the cowardly-downvote brigade, I personally believe the concept of a penumbra is valid and important. But the world doesn't always bend to my will. Merely invoking the concept without considering current context is weak because it won't convince anyone of anything. If you want to make an argument based on that, you'll have to put in a bit more effort than just pasting a link.
  - TeeMassive 4y ago
    And your point is?
    - notacoward 4y ago
      Clearly if you read the context, that emmelaich's invocation of the "penumbra" doctrine to suggest that the first amendment covers Twitter's actions is weak. It does not, even when there's a connection to reports from a government agency. There are other arguments for why Twitter's actions were wrong, perhaps even that it's a first-amendment issue, but that one just doesn't work in the context of how the constitution is currently being interpreted. The one-line slam dunk is really anything but. Also, please read the guidelines about low-effort comments.
      - emmelaich 4y ago
        Actually, I just thought it was a useful concept for anyone arguing about the literal meaning of the constitution. Wasn't especially arguing for either side. Though having the FBI and Twitter policy people being in such close communication must be eyebrow raising at least. And it a little bizarre honestly.
FollowingTheDao 4y ago
> How exactly does the FBI asking a private sector company to take down posts violate this amendment? Imagine if the FBI came to your house and asked you to take down a sign in your front yard.
- petesergeant 4y ago
  It would definitely make me question how much I cared about the sign, and ask myself difficult questions about why the FBI were getting involved. I’d probably even engage a lawyer. But it’s not clear to me I’d take it down if — after all of this — I’d decided keeping it up was the right choice?
- deleted 4y ago
  [deleted]
- acdha 4y ago
  That might cause me to ask questions like how I felt about the message on the sign. If it was, say, my support for a political candidate I’d be calling the ACLU and local media. If, as in the case of Twitter, it was something untrue about the upcoming election left by someone at a party who I’d already had to ask to behave better, I would probably regret only that I hadn’t asked them to take their sign and leave earlier.
tomohawk 4y ago
1: The 14th amendment significantly expanded the reach of constitutional protections, primarily to require all government to comply. 2: Did Congress pass a law authorizing the FBI to snoop on social media and use private companies to censor speach? No? Then by what authority was the FBI doing this? The root of the FBIs authority is in law passed by Congress.
- treebeard901 4y ago
  The FBIs authority like many other law enforcement agencies is unfortunately only based on what they are caught doing. Now this is more complicated than it seems because for the longest time, decades, they never even fired an agent for any reason. There is no real oversight at an investigation or agent level since the FBI does not police itself. Few other agencies have the ability to review the FBI and the DOJ often fails to do this as well, they are all part of the same family. Congress has oversight but that is more of an institutional oversight and not down to the agents themselves. And it's basically a fact that all law enforcement is slow or almost never holds itself accountable for anything. This is even more true with a quasi international intelligence agency that the FBI has become. The FBI has always had a unique role in the U.S., and it is disturbing to see corruption hiding behind the political division. The left historically had many problems with the FBI. The history there is clear. The FBI had historically been a conservative type of institution and was often well regarded by the right. This seems to have flipped lately and I wish people could put all of that to the side and take a rational view of information released even in the Twitter files and things like the MLK Tapes podcast.
api 4y ago
AFAIK if the FBI asked, Twitter resisted, and the FBI strong armed them that would be a first amendment issue. I don’t see any sign they resisted or even wanted to resist. That’s not a first amendment issue. You can make an argument that the FBI should not be doing that, but no laws were broken. Also most of this was under the Trump administration. Lastly.. Twitter is a private walled garden. It is not a free speech zone. It wasn’t before Musk bought it and it isn’t now and it never will be.
TeeMassive 4y ago
"We just want to ask a few question" If you think that men in black suits who can put you in jail for simply lying to them or obstructing them then you are vey naive. And that's not even considering all the trouble the DOJ can put organisations through even though they committed no crime. Just their reputation and power is enough to apply pressure.
- mikrotikker 4y ago
  See also, Elons companies getting audited out the wazoo since he broke the establishments favourite toy.

spoiler 4y ago

When governments ask companies to do something, they usually must comply though lol

ethanbond 4y ago
Literally not true. They can simply decline and if the Govt wants to come after them they can sue each other and in cases where it’s legal content then Twitter will win. This is extremely well established and not even remotely weird or some dark unexplored corner of Constitutional law. Edit: Here’s a link with some relevant case law. 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... Disagree with the established precedent if you want, but if you do, I’d recommend picking a different battleground than whatever this Twitter Files fiasco is. This stuff isn’t even on the questionable end of the spectrum.
- koolba 4y ago
  Any voluntary request from the government comes with an implied consequence for refusal or an implied benefit for acceptance. They don’t have to say it out loud for the message to come across.
  - ethanbond 4y ago
    By this logic the government can’t use the Report Tweet button either, right?
    - koolba 4y ago
      Unless it’s in the furtherance of catching or stopping an active criminal, I’d say no. Why would we be wasting government resources alerting private companies of their terms of service anyway?
      - ethanbond 4y ago
        I don’t think it’s a waste of government resources to be reporting people who are trying to suppress voting by e.g. giving incorrect polling dates or locations. Also don’t think it’s a waste to try to prevent ISIS recruiting material from reaching more confused and angry young men. Both are legal though!
        TeeMassive 4y ago
        The Taliban were on Twitter...
        ethanbond 4y ago
        And?
        TeeMassive 4y ago
        Well clearly the FBI don't find the Taliban bad enough for some reasons...
        ethanbond 4y ago
        Or… it turns out that the FBI has specific mandates and they include things like “counter election disinformation” and it doesn’t include things like “report every bad guy on Twitter.” This is only confusing starting from your own incorrect premise.
        TeeMassive 4y ago
  - ModernMech 4y ago
    If Twitter was being coerced by the government, they could have said so in court. They are a multibillion dollar multinational corporation with deep pockets and connection in high places, not a helpless mom and pop.
  - candybar 4y ago
    Republicans - and Trump specifically - have been directly threatening Twitter for years to try to get them to act in a way that benefits them and you think this "implied consequence for refusal" is some big issue?
- Amezarak 4y ago
  You're right, this isn't unexplored. The ACLU says this specific example is unconstitutional. There's also been legal cases about this in the past. It's illegal for the government to do this. "They could sue if they don't want to do it" does not make the request legal. https://twitter.com/aclu/status/1587198479608303622 https://twitter.com/aclu/status/1587198479608303622 What's shocking is that people's perceptions of what's legal have changed so dramatically in just a few years. I can't imagine anyone making these arguments in 2005. It seems some powerful interests have been able to successfully co-opt SV companies and change the entire public conversation about what the First Amendment means. I would like to know a lot more about what's going on here. I don't think the same tired arguments about "disinformation" and "social harmony" that have been trotted out for centuries against free speech have suddenly gained all this credence by accident.
  - ethanbond 4y ago
    Not clear what you mean by “this specific example” given that your linked article is about DHS’s defunct Disinformation board and AFAIK this board never even became operational (and in any case hasn’t been mentioned in Twitter Files). It seems to me rather that all these folks shocked to hear this stuff just haven’t been paying attention to either their high school civics course or to current events of the last 20 years. You actually think the FBI doesn’t report content? Obviously they do. You don’t think the FBI gets a privileged reporting line over newuser1848391? Obviously they do. You don’t think Twitter regularly gets content moderation requests, from governments or elsewhere, that they simply decline? Obviously they do. And you don’t think they sometimes get content moderation requests from governments or elsewhere that they oblige? Obviously they do. Here’s a good overview of relevant case law: 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... Will you also be surprised to hear that almost all private companies can (and many will) simply choose to hand over your private data to the government upon warrantless request?
    - Amezarak 4y ago
      I never said I was shocked about it. The government and particularly agencies like the FBI have long engaged in illegal abuses of their power, ranging from illegal speech restrictions like this to the knowing legal persecution of innocent people to outright murder and blackmail. Nor is it news to me that companies are increasingly voluntarily sharing vast amounts of data with the government, to the point that the surveillance state we feared has come to pass as a corporate-state partnership. What I’m surprised about is the increasing number of people who see it as normal and acceptable, or choose to dismiss it as “oh, this has been happening.” Yeah, that doesn’t make it okay.
UncleMeat 4y ago
That’s why every company has adopted NISTs password guidance and those that refused had their CEOs thrown in prison.
acdha 4y ago
What do you hope to accomplish with a low-effort comment which everyone knows is wrong? We’re talking about the FBI here so one of the events I’d expect most HN commenters to be familiar with is their dispute with Apple: https://en.wikipedia.org/wiki/FBI%E2%80%93Apple_encryption_dispute https://en.wikipedia.org/wiki/FBI%E2%80%93Apple_encryption_d... Since then, Apple has stepped up their end to end encryption stance, which seems like the opposite of what you’re implying.

themgt 4y ago

How exactly does the FBI asking a private sector company to take down posts violate this amendment? In our system, law including the Constitution is interpreted by the judiciary. You could as well ask "where is the Miranda warning in the Bill of Rights?" The actual precedents around "jawboning" are murky and contradictory, but it's well-established that the government can step over the line in violating constitutionally protected rights via informal coercion. https://www.lawfareblog.com/informal-government-coercion-and-problem-jawboning https://www.lawfareblog.com/informal-government-coercion-and...

candybar 4y ago
In that case, Republican politicians publicly complaining about social media moderation in threatening terms would be far more problematic than the FBI notifying Twitter of tweets that are in violation of their TOS. Yet I don't remember the "Free Speech" proponents doing anything but applauding these types of "informal coercion."
- mikrotikker 4y ago
  That's one of the falsiest equivalencies I ever did see
  - candybar 4y ago
    It's actually not equivalent - we're seeing a lot of accuasations here that the FBI "coerced" Twitter or that the FBI requests were "partisan" - there's actually no evidence in these files for these claims. On the other hand, there's plenty of public evidence that Republican politicians were trying to coerce Twitter to accomplish explicitly partisan aims. Yet here we are.

emmelaich 4y ago

https://en.wikipedia.org/wiki/Penumbra_(law) https://en.wikipedia.org/wiki/Penumbra_(law)

notacoward 4y ago
Oh, you mean the doctrine that is openly vilified by the "originalist" majority of the US Supreme Court? Not that consistency is their strong point or anything, but maybe that's not the authoritative answer you thought it was. FWIW, to appease the cowardly-downvote brigade, I personally believe the concept of a penumbra is valid and important. But the world doesn't always bend to my will. Merely invoking the concept without considering current context is weak because it won't convince anyone of anything. If you want to make an argument based on that, you'll have to put in a bit more effort than just pasting a link.
- TeeMassive 4y ago
  And your point is?
  - notacoward 4y ago
    Clearly if you read the context, that emmelaich's invocation of the "penumbra" doctrine to suggest that the first amendment covers Twitter's actions is weak. It does not, even when there's a connection to reports from a government agency. There are other arguments for why Twitter's actions were wrong, perhaps even that it's a first-amendment issue, but that one just doesn't work in the context of how the constitution is currently being interpreted. The one-line slam dunk is really anything but. Also, please read the guidelines about low-effort comments.
    - emmelaich 4y ago
      Actually, I just thought it was a useful concept for anyone arguing about the literal meaning of the constitution. Wasn't especially arguing for either side. Though having the FBI and Twitter policy people being in such close communication must be eyebrow raising at least. And it a little bizarre honestly.

FollowingTheDao 4y ago

> How exactly does the FBI asking a private sector company to take down posts violate this amendment? Imagine if the FBI came to your house and asked you to take down a sign in your front yard.

petesergeant 4y ago
It would definitely make me question how much I cared about the sign, and ask myself difficult questions about why the FBI were getting involved. I’d probably even engage a lawyer. But it’s not clear to me I’d take it down if — after all of this — I’d decided keeping it up was the right choice?
deleted 4y ago
[deleted]
acdha 4y ago
That might cause me to ask questions like how I felt about the message on the sign. If it was, say, my support for a political candidate I’d be calling the ACLU and local media. If, as in the case of Twitter, it was something untrue about the upcoming election left by someone at a party who I’d already had to ask to behave better, I would probably regret only that I hadn’t asked them to take their sign and leave earlier.

tomohawk 4y ago

1: The 14th amendment significantly expanded the reach of constitutional protections, primarily to require all government to comply. 2: Did Congress pass a law authorizing the FBI to snoop on social media and use private companies to censor speach? No? Then by what authority was the FBI doing this? The root of the FBIs authority is in law passed by Congress.

treebeard901 4y ago
The FBIs authority like many other law enforcement agencies is unfortunately only based on what they are caught doing. Now this is more complicated than it seems because for the longest time, decades, they never even fired an agent for any reason. There is no real oversight at an investigation or agent level since the FBI does not police itself. Few other agencies have the ability to review the FBI and the DOJ often fails to do this as well, they are all part of the same family. Congress has oversight but that is more of an institutional oversight and not down to the agents themselves. And it's basically a fact that all law enforcement is slow or almost never holds itself accountable for anything. This is even more true with a quasi international intelligence agency that the FBI has become. The FBI has always had a unique role in the U.S., and it is disturbing to see corruption hiding behind the political division. The left historically had many problems with the FBI. The history there is clear. The FBI had historically been a conservative type of institution and was often well regarded by the right. This seems to have flipped lately and I wish people could put all of that to the side and take a rational view of information released even in the Twitter files and things like the MLK Tapes podcast.

api 4y ago

AFAIK if the FBI asked, Twitter resisted, and the FBI strong armed them that would be a first amendment issue. I don’t see any sign they resisted or even wanted to resist. That’s not a first amendment issue. You can make an argument that the FBI should not be doing that, but no laws were broken. Also most of this was under the Trump administration. Lastly.. Twitter is a private walled garden. It is not a free speech zone. It wasn’t before Musk bought it and it isn’t now and it never will be.

TeeMassive 4y ago

"We just want to ask a few question" If you think that men in black suits who can put you in jail for simply lying to them or obstructing them then you are vey naive. And that's not even considering all the trouble the DOJ can put organisations through even though they committed no crime. Just their reputation and power is enough to apply pressure.

mikrotikker 4y ago
See also, Elons companies getting audited out the wazoo since he broke the establishments favourite toy.