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February 16, 2023
The reporting on internal Twitter documents released by its new owner has emboldened the US House Judiciary Committee in its bid to hold big tech accountable for its censorship activities.
Representative Jim Jordan, Chairman of the House Judiciary Committee, has sent almost identical letters to the CEOs of Alphabet (Google), Amazon, Apple, Meta (Facebook) and Microsoft. It briefly explains why he has attached a subpoena demanding they hand over internal documents, primarily concerned with any communications they may have had with the executive branch (i.e. presidency) on the matter of censorship on their platforms.
“To develop effective legislation, such as the possible enactment of new statutory limits on the Executive Branch’s ability to work with Big Tech to restrict the circulation of content and deplatform users, the Committee on the Judiciary must first understand how and to what extent the Executive Branch coerced and colluded with companies and other intermediaries to censor speech,” the letter opens.
It goes on to explain that the subpoenas are only being demanded because previous efforts to engage with the companies resulted in a “woefully inadequate” response. Jordan is a Republican and there has long been suspicion that Big Tech companies are ideologically biased against conservatives. Eagle-eyed readers will have noticed the absence of Twitter from the list of subpoenaed companies. That’s because Jordan considers Elon Musk’s decision to open up Twitter’s internal documents to journalistic scrutiny a sufficient level of transparency.
“In contrast to [company name], Twitter recently set a benchmark for how transparent Big Tech companies can be about interactions with government over censorship,” the letter concludes. “The Twitter Files have exposed how Big Tech and the federal government have worked hand in hand in ways that undermine First Amendment principles. Numerous internal documents from Twitter reflect the weaponization of the federal government’s power to censor speech online. It is necessary for Congress to gauge the extent to which this occurred at [company name] as well.
Of the companies cited, Alphabet and Meta are the more conspicuous public platform owners, but such is the size and power of Big Tech that it’s reasonable to assume the tentacles of the other three extend to areas of concern for freedom of speech. It also seems safe to assume that, in addition to the access Musk gave reporters, he has also been happy to cooperate with Jordan and his committee on such matters. The other companies have until 23 March to hand over the demanded documents.
In a good week for free speech in the US, the subpoenas come hot on the heels of a ruling by a New York District Court that a piece of legislation passed by New York State, called the Hateful Conduct Law, is unconstitutional. The law seeks to impose state definitions of hateful conduct on internet platforms and oblige them to publish their policies on how to counter it, a clear attempt at state censorship.
The ruling by Judge Andrew Carter starts by citing precedent. “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’” Matal v. Tam, 137 S. Ct. 1744, 1764 (2017) (citations omitted).
With the well-intentioned goal of providing the public with clear policies and mechanisms to facilitate reporting hate speech on social media, the New York State legislature enacted N.Y. Gen. Bus. Law § 394-ccc (“the Hateful Conduct Law” or “the law”). Yet, the First Amendment protects from state regulation speech that may be deemed “hateful” and generally disfavors regulation of speech based on its content unless it is narrowly tailored to serve a compelling governmental interest.
The Hateful Conduct Law both compels social media networks to speak about the contours of hate speech and chills the constitutionally protected speech of social media users, without articulating a compelling governmental interest or ensuring that the law is narrowly tailored to that goal. In the face of our national commitment to the free expression of speech, even Case 1:22-cv-10195-ALC Document 29 Filed 02/14/23 Page 1 of 21 2 where that speech is offensive or repugnant, Plaintiffs’ motion for preliminary injunction, prohibiting enforcement of the law, is GRANTED.
In other words, it’s not for the state to determine what is ‘hateful’ and it’s unconstitutional for it to use that definition as a pretext and mechanism for censorship. You can read expert analysis of the decision here. As we concluded in our Twitter Files report, if there has to be censorship it needs to be governed by due process. Big Tech and the US state have both acted to circumvent due process by censoring surreptitiously and unilaterally but these developments offer hope they will be held accountable.
As the Editorial Director of Telecoms.com, Scott oversees all editorial activity on the site and also manages the Telecoms.com Intelligence arm, which focuses on analysis and bespoke content.
Scott has been covering the mobile phone and broader technology industries for over ten years. Prior to Telecoms.com Scott was the primary smartphone specialist at industry analyst Strategy Analytics’. Before that Scott was a technology journalist, covering the PC and telecoms sectors from a business perspective.
Follow him @scottbicheno
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