Below is my column in the Hill on the first hearings this week to be held by the Select Subcommittee on the Weaponization of the Federal Government. It could be one of the most consequential investigations for free speech in decades if it pulls back the curtain on government censorship programs. After the historic release of the Twitter Files by Elon Musk, questions remain on any similar coordination with other social media companies with federal agencies like the FBI to target views considered “disinformation” or “misinformation.”
Here is the column:
This coming week a new House select subcommittee will hold its first hearing on the FBI and the possible “weaponization” of government agencies. A variety of such controversies have contributed to plunging public trust in government and the FBI in particular.
The role of the FBI in prior scandals will remain a point of heated debate in Congress. However, members of both parties should be able to agree on the need to investigate one of the most serious allegations: Censorship by surrogate.
Many of the allegations of FBI bias are worthy of investigation. Some of those allegations are problems of personnel who can be removed. But a far more menacing problem has emerged in recent months with the release of information from Twitter.
The “Twitter files” revealed an FBI operation to monitor and censor social media content — an effort so overwhelming and intrusive that Twitter staff at one point complained internally that “they are probing & pushing everywhere.” The reports have indicated that dozens of FBI employees worked on the identification and removal of material on a wide range of subjects and that Twitter largely carried out their requests.
Nor was it just the FBI, apparently. Emails reveal FBI figures like a San Francisco assistant special agent in charge asking Twitter executives to “invite an OGA” (or “Other Government Organization”) to an upcoming meeting. A week later, Stacia Cardille, a senior Twitter legal executive, indicated the OGA was the CIA, an agency under strict limits regarding domestic activities.
Twitter’s own ranks included dozens of ex-FBI agents and executives, including James Baker, who featured greatly in prior FBI instances of alleged bias.
The Twitter files also show various FBI offices monitoring social media and flagging “misleading” information on various subjects.
The dozens of disclosed emails are only a fraction of Twitter’s files and do not include still-undisclosed but apparent government coordination with Facebook and other social media companies. Much of that work apparently was done through the multi-agency Foreign Influence Task Force (FITF), which operated secretly it seems to censor citizens.
Ironically, during the outcry over establishing a Disinformation Governance Board at the Department of Homeland Security, Biden administration officials had to have known they already were employing an extensive censorship system. When the administration finally relented and disbanded the disinformation board, that censorship work appears to have continued unimpeded through the FITF and agency censors.
According to reports, one email in August 2022 sent “long lists of newspapers, tweets or YouTube videos” deemed to be voicing “anti-Ukraine narratives.” Even satirical and comedy sites reportedly were pegged by the social media police.
What is most striking is that the FBI was not responding to false claims about its operations. Instead, these censorship demands were the result of policing “misinformation” and “disinformation” on subjects ranging from political corruption to elections.
Some apologists continue to defend this process, saying the FBI was only objecting to disinformation the way that citizens did on Twitter. That is not true; the government reportedly used back channels and regular meetings to flag unacceptable statements. Indeed, even if it were true, many things are more dangerous when done by government. When your neighbor attacks your opinion, it is just the crank next door. But when it is your government on the attack, it is far more threatening and stigmatizing.
Even if this operation did not cross the constitutional line, there are ample reasons why a democracy does not want the government in the business of targeting those whom it views as misleading or misinforming the public. While the FBI has every reason to pursue criminal fraud, this operation appears to have targeted speech it deemed harmful to political or social discourse.
For years, many politicians and pundits have dismissed free-speech concerns by noting that the First Amendment only applies to the government. So long as corporations do the censoring, they contend, it is not a free-speech problem.
This obviously is wrong on several fronts.
The First Amendment is not the exclusive measure of free speech. Corporate censorship of political commentaries or news stories are denials of free speech that harm our democratic system.
Second, this is a First Amendment violation. The Twitter files have substantiated long-standing concerns over “censorship by surrogate” or proxy. As with other amendments like the Fourth Amendment, which protects against unreasonable searches or seizures, the government cannot use private agents to do indirectly what it cannot do directly. Just as a police officer cannot direct a security guard to break into an apartment and conduct a search, the FBI cannot use Twitter to censor Americans.
To be fair, there were occasions when Twitter reportedly balked at government demands for raw political censorship — in one case, a demand by Rep. Adam Schiff (D., Cal.) led a frustrated Twitter censor to object that “We don’t do this.”
Nevertheless, Twitter’s management certainly now seems to admit that the company worked as an agent of the FBI and carried out most demands for social media suspensions, removals or blocks of individuals. At the same time, the FBI pushed for closer collaboration on content removal.
We do not know the full extent of this operation or its impact, but Congress should want to know if the FBI and other agencies created a system of censorship-by-surrogate. The only reason we now have Twitter’s previously secret communications is because an eccentric billionaire bought the company.
The broader effort with other companies could well constitute the largest censorship program ever run by the government — a system designed to escape both public and judicial scrutiny. It also shows how it is no longer necessary to have a “Ministry of Information” to maintain a state media: You can have an effective state media by consent rather than by coercion or control.
The FBI’s response to disclosure of these long-secret communications is particularly chilling. When some critics denounced it as raw censorship, the FBI accused them of being “conspiracy theorists … feeding the American public misinformation.” So, criticism of the FBI’s work to censor citizens resulted in an official statement denouncing those citizens.
None of these denials or attacks succeed, however. The public understands the threat and strongly supports an investigation into the FBI’s role in censoring social media. Despite the push for censorship by some politicians and pundits, most Americans still want free-speech protections. It is in our DNA.
This country was founded on deep commitments to free speech and limited government — and that constitutional tradition is no conspiracy theory.
Jonathan Turley is the Shapiro Professor of Public Interest Law at The George Washington University. Follow him on Twitter @JonathanTurley.