During recent testimony before the House Judiciary Committee, FBI director Christopher Wray flatly denied the allegation that the FBI has called on social media companies to censor content.
“What we do is alert them,” Wray said. “But at the end of the day, we’re very clear that it’s up to the social media companies to decide whether to do something about it or not.”
Wray is correct that, based on current evidence, the FBI has not explicitly demanded that social media companies censor any specific posts or news stories. But he fails to acknowledge a point made by Rep. Darrell Issa: “The suggestion of the most powerful law enforcement operation is not a suggestion. It is in fact effectively an order.”
Issa’s comment was a bit hyperbolic, but it’s not far off. In fact, it echoes a point the Supreme Court made nearly 60 years ago: Americans “do not lightly disregard public officers’ thinly veiled threats to institute criminal proceedings against them if they do not come around.”
Much is said in our current discourse about the existence and effect of power imbalances. Power and influence are consequential aspects of any relationship or interaction, and one side can sometimes exploit that leverage to get its way without explicit threats.
When your boss asks if you can stay late or come in on the weekend, you can say no. But in the back of your mind, you know there may be consequences. Maybe he passes you over for promotion. Or maybe you’re one of the first laid off when the going gets tough.
It’s not hard to see a similar dynamic when the government sends “suggestions” to private individuals or companies over which it exercises law enforcement or regulatory authority. Wray noted the FBI’s intentions were merely to alert social media platforms of problematic content for potential removal. But are we supposed to believe the FBI would be equally satisfied with either outcome — removal or retention?
When the FBI floods social media platforms with “alerts” about content it obviously wants taken down, it doesn’t deserve a pass just because it didn’t say out loud: “or else.” (Not to mention we don’t know everything that was said in frequent closed-door meetings between the Bureau and the platforms.)
The FBI isn’t @JoeBlow with 49 Twitter followers reporting a tweet. It’s arguably the most powerful law enforcement agency in the free world. The FBI uses the weight and authority of its office to lean on platforms in an attempt to do what the First Amendment forbids it from doing directly: suppress protected speech. This tactic is called “jawboning,” and is not something we should blithely accept in a society committed to free expression as a fundamental value, even if an argument can be made the government’s actions stop just short of crossing a constitutional red line.
And communications of this kind can violate the First Amendment when they become coercive or the government becomes overly involved in private platforms’ decision-making, as the recent federal court ruling in Missouri v. Biden shows. The court extensively documented the substantial pressure put on social media platforms by the FBI and other federal agencies.
For example, as early as 2017, FBI officials regularly met with senior staff in charge of content moderation at Twitter, Facebook, Google/YouTube, and other social media companies. The FBI had special communications channels with the platforms through which it would forward reports of “misinformation” or other content or accounts it wanted them to review, before following up on the specific actions taken by the platforms.
According to the court, examples of alleged Russian disinformation flagged by the FBI included an anti-Hillary Clinton post, a post advocating secure borders, a Black Lives Matter post, and a pro-Second Amendment post. The FBI also admitted it would “probe” platforms for details about algorithms they use and how they enforce terms of service.
All of this was enough for the court to conclude the FBI provided such “significant encouragement” to the platforms to censor protected speech that it likely violated the First Amendment.
That decision is now under review by the U.S. Court of Appeals for the Fifth Circuit. But regardless of the appeal’s outcome, nobody should be comfortable with the extent of the FBI’s (or the other agencies’) interference in protected editorial decisions of private online platforms.
Of course, this is not to say government officials can’t express their thoughts and opinions on issues of the day. They generally can, if their job descriptions permit it, or when they’re speaking off the clock as private citizens. But when the feds frequently meet with and send official communications to social media companies through designated backchannels — behind closed doors, outside of public view — with the purpose of suppressing constitutionally protected speech, they’ve moved well beyond simply using their bully pulpit to advocate views or policies.
For Wray, that might not be a big deal. For everyone else, it should be a jarring reminder of the insidious ways government jawboning can serve as an end run around the First Amendment.
Aaron Terr is director of public advocacy at the Foundation for Individual Rights and Expression, a nonpartisan nonprofit dedicated to defending and sustaining the individual rights of all Americans to free speech and free thought.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller.