David French says any discussion of the Twitter files must consider the government's interest in limiting misinformation

Excuse us, but we think the Twitter files are a pretty big deal. As we reported earlier, Rep. Ted Lieu ended up deleting a tweet calling a tweet that had been censored misinformation after he got fact-checked pretty hard. No, COVID-19 was never a leading cause of death for children.

We’re pretty tired of the word “misinformation” being thrown around to excuse all sorts of bad behavior. We just had a Disinformation Governance Board established whose chair called the Hunter Biden laptop story a “fairytale.” She was picked because she was “the Mary Poppins of misinformation.” It turns out we didn’t need a board because so many other government agencies had their hands inside every social media platform.

Twitchy non-fan David French says that any discussion of the Twitter files has to consider the government’s interest in limiting misinformation. The government might have an interest in it, but Twitter isn’t owned and run by the government, as Amanda Marcotte suggested it should be.

The Twitter files discussion contains so little nuance because it hasn't distinguished different forms of government power. Lots of folks don't know this, but government actors have their own 1A rights even as they're constrained from violating the 1A rights of others. /1

— David French (@DavidAFrench) December 27, 2022

The government clearly has an interest in correcting misinformation that, for example, led to 300,000+ excess deaths due to vaccine refusal, or misinformation that led to the storming of the Capitol on 1/6. Thus, it makes sense that it would take action in response. /2

— David French (@DavidAFrench) December 27, 2022

But the tools available to the government for correcting misinformation are limited, for good reason. The government itself is often a font of misinformation, both deliberate and accidental. Sometimes it lies. Sometimes it makes mistakes. The 1A is vital in this context. /3

— David French (@DavidAFrench) December 27, 2022

Mostly deliberate.

It prevents the government from engaging in coercive viewpoint discrimination and using its police power to dictate the boundaries of the marketplace of ideas. This is the 1A as a shield against government power. But that does not leave the government helpless. /4

— David French (@DavidAFrench) December 27, 2022

At the same time, the 1A also gives the government a powerful sword–its own speech. In fact, it's hard to imagine an elected government without its own voice. We often even consider the power of a person's voice when we vote for them, not just their policies. /5

— David French (@DavidAFrench) December 27, 2022

The government does have its own voice — but that voice doesn’t necessarily have to be Twitter.

That's why courts protect the 1A rights of the government *and* private citizens. At the same time, however, there is recognition that "jawboning"–government efforts to convince or cajole private actors to change their behavior–can cross the line from convincing to coercing. /6

— David French (@DavidAFrench) December 27, 2022

The case law generally grants public officials pretty wide latitude to jawbone away. Even public officials with direct regulatory authority are granted considerable leeway. In fact, I think the state of the caselaw in some circuits is too permissive. /7

— David French (@DavidAFrench) December 27, 2022

It's too willing to overlook comments that look a lot like implied threats. For example, I hope SCOTUS hears the NRA's appeal from a decision holding that "guidance letters" issued by NY's financial regulators were government speech and not coercive /8: https://t.co/a3GUCofDRd

— David French (@DavidAFrench) December 27, 2022

But even SCOTUS clarifies its doctrine to draw sharper lines, the government is still going to have considerable leeway to try to convince or persuade private actors to modify their conduct (such as when the government tries to convince a paper not to publish classified info.) /9

— David French (@DavidAFrench) December 27, 2022

How hard did the government try to convince BuzzFeed not to publish the Steele dossier?

The Twitter Files show pervasive jawboning. (And make no mistake, social media jawboning comes from all sides). But so far lawsuits based on jawboning have failed (https://t.co/du1HwVCq8g) and failed (https://t.co/IQDgqN4TKL) and failed (https://t.co/Aw8vpolaGm) /10

— David French (@DavidAFrench) December 27, 2022

As the document dumps keep coming, we'll no doubt learn more, but it's important to understand the legal parameters, and they give more leeway to government speech than many folks on this website seem to think. In fact, I'm inclined to think the law gives too much leeway. /11

— David French (@DavidAFrench) December 27, 2022

But any discussion of the issues that doesn't seriously consider the government's interest in limiting the spread of dangerous misinformation and the government's own speech rights isn't fully engaging with the issue. Just as . . . /12

— David French (@DavidAFrench) December 27, 2022

any discussion of the issues that doesn't seriously consider the idea that pervasive government interaction can sometimes cross into coercion isn't fully engaging with private 1A rights. Everyone wants things to be clear, but the line between convincing and coercing is not. /end

— David French (@DavidAFrench) December 27, 2022

It’s pretty clear.

David you're an embarrassment to critical thought. Muted.

— Andrew Palmer (@AndrewHMPalmer) December 27, 2022

“It’s ok to throw out countless babies because it’s legitimate to throw out the bath water.” pic.twitter.com/krrS0FFTLq

— Brian Rose (@drbtrose) December 27, 2022

Interesting you have gone fr this is non-story because no coercion taking place, to coercion was coming fr private campaigns & committees so not 1A violation, to maybe there was coercion from gov’t, but it’s v nuanced & not clear. At no point any concern for, y’know, free speech.

— Megan Basham (@megbasham) December 27, 2022

Also, there is no reverence for spirit of 1A here. There is pharisaical hair splitting. I think if you showed even smallest alarm at how gov’t has been strong arming social media giants to silence citizens, this might gain hearing beyond those who want the censorship to continue.

— Megan Basham (@megbasham) December 27, 2022

FFS dude silencing private citizens is not the same as "correcting misinformation" and you fucking know it.

— Social Distance Champion (@realchrishynes) December 27, 2022

This is an absurdly bad take. If a private actor willingly participates with the government to infringe on censorship of American citizens, they are state actors. Everything else you said is just wordy deflection.

— Kyle Lamb (@kylamb8) December 27, 2022

The government absolutely cannot bypass 1st Amendment protections by using third-party NGOs.

— often uncommon 👊 (@oftenuncommon) December 27, 2022

Dude – the govt has plenty of ways to get it's message out without coercing private entities to stifle free speech. That's not nuance – that's abuse of power.

— Douglas Dunklin (@DougDunklin) December 27, 2022

I nominate this tweet in two year end categories:

“Largest Intellectual Pretzel”

and

“Most Obvious Apology for The Regime”

— Just the Facts (@jonatha26052632) December 27, 2022

My goodness your desperate flailing to excuse away censorship is somewhere beyond embarrassing

— Ian Miller (@ianmSC) December 27, 2022

One hopes the boots he enjoys licking come down on him soon. Would love to see it.

— AKRobby (@akrobby) December 27, 2022

Won't someone think about the rights of Big Brother?

— Visibility Filtering SlothB77 (@ScottySols) December 27, 2022

The gov’t has no valid interest in coercing, compelling, facilitating, or soliciting a private entity to do for them what it could not constitutionally do for itself.

Shame on you, you sad broken footstool

— Dan, Human Tetris Wizard and Guy in a Chair (@Libertybibbledy) December 27, 2022

OMFG. If a university did this to students with social media 20 years ago, you and FIRE would have been all over it, but now you are an apologist for government censoring speech. You should be ashamed of who you have become post trump.

— Sexy Dad Bod Mike (@bod25mike) December 27, 2022

This is the best your guys in the CIA and FBI could come up with for you?

— Aedwyne de Leon (@EMPDL) December 27, 2022

There is no "nuance" that permits the government to coerce others out of expressing their opinion.

This is why the Sedition Act was struck down under Wilson. Gov coercion of speech, by any means, is unconstitutional.

— TarienCole (@TarienCole) December 27, 2022

This whole thread is just a straw man. No one disputes the governments right to speak or even lie. The press secretary goes on tv and lies every day. What they can’t do is use the color of government authority to convince/cajole others to suppress the speech of Americans.

— Matt Wright (@mattwr) December 27, 2022

Your most embarrassing moment yet. Carrying water for the Feds. Incredible

— WTHisGoingon? (@NotJoshSeattle) December 27, 2022

Can’t the United States government build its own Twitter? It probably could, and it would cost $1 trillion and take seven years. It could be reserved just for federal employees. This reminds us of New Zealand Prime Minister Jacinda Ardern calling freedom of speech on the internet a “weapon of war” at the UN. “How do you tackle climate change if people don’t believe it exists,” went her reasoning. As she told the country in 2020, “We will continue to be your single source of truth…. Unless you hear it from us it is not the truth.”