FBI may have violated First Amendment with Twitter moderation requests, experts warn

The FBI may have violated the First Amendment by asking Twitter to moderate certain speech, as revealed in a recent “Twitter Files” release, constitutional experts tell Fox News Digital.

A Twitter Files installation released by Substack journalist Matt Taibbi last week revealed Twitter’s former head of security, Yoel Roth, apparently attended weekly meetings with the FBI, the Department of Homeland Security and the Director of National Intelligence about moderating misinformation ahead of the 2020 election.

In October 2020, just weeks before the election, the FBI prompted Twitter to take action after it flagged two tweets related to alleged voter fraud, according to a screenshot of internal communications posted by Taibbi. Twitter responded by slapping a label that said “Learn how voting is safe and secure” on one of the tweets from a GOP Indiana politician, according to the screenshot.

Screenshots also showed Twitter’s current policy director, Nick Pickles, and a marketing employee discussing how the company detects misinformation partly through “partnerships” with the FBI and DHS.


To further complicate matters, Jim Baker, Twitter’s former deputy general counsel, got his top job at the social media giant after playing a key role in pushing the Trump-Russia collusion narrative during his time at the FBI, where he served as general counsel.

New Twitter CEO Elon Musk fired Baker this month due to concerns about his “possible role in suppressing information important to the public dialogue.” It was later reported that Baker had a hand in vetting, without Musk’s knowledge, the first installation of the Twitter Files that detailed the company’s suppression of the New York Post’s Hunter Biden laptop story ahead of the 2020 election.

Jim Baker, left, and Elon Musk.
(Getty Images)

Baker’s name surfaced in the Twitter Files due to internal company discussions about the laptop story, during which he concluded, “It’s reasonable for us to assume” that the laptop story came from hacked materials despite other employees’ protests.

The White House on Friday said it had no involvement in pressing Twitter to censor information and that no one had been in contact with Baker before his firing.

“It’s up to private companies to make these types of decisions,” White House press secretary Karine Jean-Pierre insisted. “We were not involved. I can say that we were not involved.”

White House press secretary Karine Jean-Pierre holds the daily news conference in the Brady Press Briefing Room at the White House Dec. 8, 2022, in Washington, DC

White House press secretary Karine Jean-Pierre holds the daily news conference in the Brady Press Briefing Room at the White House Dec. 8, 2022, in Washington, DC
(Chip Somodevilla/Getty Images)

National Security Council Strategic Communications Coordinator John Kirby similarly told Fox News on Sunday that the Biden administration is not “directing private social media companies on how to manage their content.”

“It’s up to these social media companies to determine how they’re going to manage their content,” he said.

It’s a stark contrast from last year, when White House press secretary Jen Psaki boasted that the White House was in “regular touch with social media platforms,” ​​working to combat the spread of disinformation on COVID-19.

“We are in regular touch with the social media platforms, and those engagements typically happen through members of our senior staff and also members of our COVID-19 team … specifically on the pandemic,” Psaki said in July 2021.

Heritage Foundation Senior Legal Fellow Hans von Spakovsky told Fox News Digital that while Twitter is a private company that is free to moderate content, the company could be viewed as an agent for the federal government if it is found to be taking its direction.

“The First Amendment applies to the government and prohibits censorship by government agencies and entities, not private actors,” von Spakovsky said.

“However, when a private company is censoring information based on direction, coordination and cooperation with the government, then legally it may be considered to be acting as an agent for the government, and it may be found to be violating the First Amendment.”


Ilya Shapiro, director of constitutional studies at the Manhattan Institute, told Fox News Digital the Twitter Files controversy is “worse” than cases he’s previously covered regarding government and Big Tech “collusion,” because “when the FBI ‘asks’ for something, that’s pretty serious.”

George Mason University professor David Bernstein told Fox News Digital that, “absent a true national security emergency, it’s inappropriate for anyone with a political role in the government to be exerting pressure or even lobbying Twitter regarding content.”

“The FBI is a trickier case,” he said. “If there is no political interference, the FBI sharing information with Twitter is not inherently inappropriate. For example, the FBI could share information that a Twitter account is linked to a known terrorist group. However, there is obviously a line between properly sharing information and a government agency unduly pressing an agency, especially if there is a threat of retaliation attached. Without knowing more about exactly what the FBI was doing, I can’t say which side of the line it was on.”

Elon Musk acquired Twitter Oct. 27, 2022.

Elon Musk acquired Twitter Oct. 27, 2022.
(Getty Images)

Robert J. Delahunty, a senior distinguished fellow at the University of St. Thomas School of Law and a Washington fellow at the Claremont Institute’s Center for the American Way of Life, told Fox News Digital there isn’t enough information yet to determine whether Twitter acted as a government agent and that a congressional investigation is needed.

“We now know from the [Twitter Files] that the intelligence community interacted on a regular basis with Twitter and other platforms, seemingly to ‘advise’ them to monitor what the IC considered objectionable content,” Delahunty said. “We do not yet know enough about the nature of those interactions to be able to say whether the platforms in effect became agents of the government. They may have.

“The next Congress must make it a top priority to investigate the (apparently extensive) contacts between the intelligence community and the platforms to determine whether what amounted to governmental censorship of political speech took place.”


Multiple congressional Republicans have signaled they would support such an investigation.

“Some fingers are getting pointed at the FBI’s Washington, DC, office in ways that are really troublesome,” Sen. Cynthia Lummis, R-Wyo., told Cowboy State Daily. “The accumulation of accusations pointed at the FBI’s Washington, DC, bureau, I think, make it ripe for serious investigation by Congress.”

“For far too long Big Tech has operated with unchecked power,” Rep. Elise Stefanik, RN.Y., told CNY Central. “In the majority, House Republicans will hold Big Tech accountable and investigate its attempt to silence conservative viewpoints, including its egregious, biased censorship of the Hunter Biden laptop story. To create a government accountable to the people, we will further expose the weaponized DOJ and intelligence agencies’ complicit involvement in pushing and suppressing stories for political purposes, and we will hold them accountable.”

Rep. Elise Stefanik, R-NY, speaks during a news conference on the FBI search of former President Trump's home in Florida with members of the House Intelligence Committee at the US Capitol in Washington, DC, Aug. 12, 2022.

Rep. Elise Stefanik, R-NY, speaks during a news conference on the FBI search of former President Trump’s home in Florida with members of the House Intelligence Committee at the US Capitol in Washington, DC, Aug. 12, 2022.
(The Washington Post via Getty Images)

The release of the Twitter Files began Dec. 2 with journalist Matt Taibbi revealing internal efforts to suppress the New York Post’s Hunter Biden story in 2020. Journalist Bari Weiss reported the second installation of the Twitter Files on Thursday, revealing the company “blacklisting” or shadow banning certain tweets and users. Parts three and four were dedicated to outlining what led to former President Trump being removed from Twitter Jan. 8, 2021. Musk reinstated Trump’s Twitter account in November.


The fifth installation reported by Weiss on Monday revealed that staffers believed that tweets written by Trump about the events of Jan. 6, 2021, had not actually violated its policies despite the company saying they did at the time.

Musk has implied that a future installation of the Twitter Files would involve efforts to those who criticized COVID-19 policies.

The FBI did not respond to Fox News Digital’s request for comment.

Fox News’ Joseph A. Wulfsohn contributed to this report.


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