Public-Private Partership In Censorship

Last night Senator Josh Hawley, a very smart lawyer, went on Tucker Carlson’s show to discuss what he and Senator Chuck Grassley have discovered about the Disinformation Board that the Zhou regime has set up. What they appear to have discovered is a scheme for Department of Homeland Security to partner with private media companies to censor views that the government disagrees with. As I said, Hawley is a very smart lawyer and he understands the First Amendment issues that are at stake:

The principle that governs this is that the government cannot use private actors as agents (in the legal sense) to do things that would be unconstitutional if done by the government itself. The DHS document avoids the word “agent”, but the word “partner” appears numerous times and appears to me to amount to the same thing. This leads to complicated legal issues. Here’s a link to a discussion of this principle as applied to a rather distressing case involving a private person who conducted a search as a “partner” with the police—in this case the court decided the private person was not acting as an agent for the government:

WHEN IS A PRIVATE CITIZEN ACTING AS A GOVERNMENT AGENT?

The issues raised with regard to the Disinformation Board would be fairly simple if the Disinformation Board asked Twitter, for example, to ban a specific person—say, Alex Berenson. That’s what Berenson is interested in finding out in his lawsuit, and so he’s very interested in these new developments:

Twitter and the Department of Homeland Security

Newly released documents show the government and little bird getting cozy; don't worry, Twitter, my lawyers and I aren't paying attention to them!

Hawley and Grassley are also interested in discovering whether anything specifically of that sort happened. For the time being, what we know pretty much for sure is that the government wants to “partner” with Twitter and “empower” Twitter to … commit censorship. The question is whether the partnership rises to the status of an agent relationship—do we find Twitter acting at the direction of the government? If Twitter acts out of ideological kinship, does that preclude an agency relationship to the government even when there is consultation and “empowerment” going on? These are the kinds of issues a court would look at if a case like this came before it.

It may be helpful to focus on that word “empower”, which seems to be a definite weasel word. Twitter, in the current state of the law, doesn’t need DHS to “empower” it to commit censorship. As a private media company it’s entitled to do so under the First Amendment—the First Amendment only forbids government censorship, not private censorship. Thus, what we seem to be seeing here is not “empowerment” in it’s normal understanding so much as government steering Twitter toward the ideas that it wants to see censored. The government wants to clue Twitter in to what it thinks ought to be censored as “disinformation.”

So, here’s the general principle that Hawley and Grassley enunciate:

“The First Amendment of the Constitution was designed precisely so that the government could not censor opposing viewpoints – even if those viewpoints were false. DHS should not in any way seek to enlist the private sector to curb or silence opposing viewpoints. [I.e., viewpoints in opposition to the government’s preferred viewpoints.] It is therefore imperative for DHS to provide additional clarity regarding its policies and procedures for identifying and addressing ‘MDM,’ as well as its efforts to ‘operationalize’ public-private partnerships and the steps it is taking to ensure that it does not infringe on the constitutional rights of American citizens.”

But check out what DHS had in mind:

The spread of disinformation presents serious homeland security risks:

• Conspiracy theories about the validity and security of elections may undermine trust in core democratic institutions, amplify threats against election personnel, and jeopardize the voting rights of vulnerable communities.

• Disinformation related to the origins and effects of COVID-19 vaccines or the efficacy of masks undercuts public health efforts to combat the pandemic.

• Foreign terrorists, nation-states, and domestic violent extremist (DVE) groups leverage disinformation narratives to amplify calls to violence, including racially or ethnically motivated and anti-government/anti-authority violence. These actors often amplify and exploit narratives that already exist in public discourse, such as disinformation surrounding the validity of the 2020 election underpinning calls to violence on January 6, 2021.

• Disinformation can complicate the performance of core DHS missions. Falsehoods surrounding U.S. Government immigration policy drive vulnerable populations to pay smugglers to bring them on the dangerous journey to our southern border.

• Disinformation can hamper emergency responders in the aftermath of natural disasters or other incident responses.

Again, it doesn’t take much imagination to understand what the government wants censored under these general guidelines.

Now, here are two paragraphs from the Hawley/Grassley letter. It takes a bit of reading between the lines, but the general thrust seems clear enough. But do we see clues that the government may “empower” Twitter by drawing Twitter’s attention to specific content? I think we may:

Documents also suggest that the Department has been working on plans to “operationalize” its relationships with private social media companies to implement its public policy goals. For example, we obtained draft briefing notes prepared for a scheduled April 28, 2022, meeting between Robert Silvers and Twitter executives Nick Pickles, Head of Policy, and Yoel Roth, Head of Site Integrity. The notes are marked “TBC,” and it is unclear whether the scheduled meeting actually took place. The briefing notes frame the planned meeting between Silvers and the Twitter executives as “an opportunity to discuss operationalizing public-private partnerships between DHS and Twitter, as well as [to] inform Twitter executives about DHS work on MDM, including the creation of the Disinformation Governance Board and its analytic exchange...” According to whistleblower allegations, Nina Jankowicz may have been hired because of her relationship with executives at Twitter. Consistent with these allegations, Silvers’ briefing notes state that both Pickles and Roth know Jankowicz. A recent DHS strategy document further discusses efforts to “[e]mpower partners to mitigate MDM threats.” The document states that in certain cases, federal, state, local, tribal, and territorial or nongovernmental partners “may be better positioned to mitigate MDM Threats based on their capabilities and authorities.” DHS theorizes that “[b]y sharing information, DHS can empower these partners to mitigate threats such as providing information to technology companies enabling them to remove content at their discretion and consistent with their terms of service.”

Let’s see. Might DHS help to educate the “discretion” of nongovermental partners (and what exactly is the legal status of a ‘nongovernmental parter’)? Might DHS offer helpful advice regarding how to frame ‘terms of service’? It doesn’t take much imagination to see that much of the wording is little more than a subterfuge: by sharing information partners will learn exactly what content DHS wants removed.

Collectively, whistleblower allegations and the documents we’ve reviewed raise concerns that DHS could be seeking an active role in coordinating the censorship of viewpoints that it determines, according to an unknown standard, to be “MDM” by enlisting the help of social media companies and big tech. The DGB’s charter also specifically states that the DGB should “serv[e] as the Department’s internal and external point of contact for coordination with state, local, tribal, and territorial partners, the private sector, and nongovernmental actors regarding MDM.”

Yep. “Could be.”