Judging Freedom - FBI Interference & the 2020 Election

Episode Date: December 7, 2022

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Hi everyone, Judge Andrew Napolitano here for Judging Freedom. Today United States, the news just keeps dripping out sort of Elon Musk's way of teasing people so that they'll use Twitter, dripping out about involvement of people from the government or from the Democratic National Committee, or a little of both, in influencing the news cycle in 2020. So what we know so far is it's pretty clear that Twitter suppressed stories that it felt would hurt Joe Biden or help Donald Trump or both during the 2020 presidential election. And they can do that. I mean, we're talking about the old Twitter, the Jack Dorsey Twitter. If it was owned by Democrats and run by Democrats and financed by Democrats and influenced by Democrats, Fox News could put its spin in favor of Republicans and against Democrats on the news that it delivers.

But two interesting phenomenon have occurred with respect to Twitter in 2021 is it's pretty clear that the DNC, the Democratic National Committee, was intimately involved in advising Twitter about what stories to suppress. Again, it's a private platform. It can do it. It's also pretty clear that one of the people involved in suppressing stories, a guy named Peter Baker, who was the Associate General Counsel for Twitter and a Democrat. So far, nothing wrong with that. Except Mr. Baker's immediately preceding job was as general counsel to the FBI. So did he use any secrets or information he obtained when he worked for the government to suppress these stories hurtful to Joe Biden? Or was he a conduit for the FBI to bring about the suppression of stories? So here's the law. The law is it's a private bulletin board, Twitter. They can post what they want. They can take down what they want.

They can refuse to post what they want. They can do down what they want. They can refuse to post what they want. They can do it to help Democrats. They can do it to hurt Republicans. They can do it overtly or covertly. But if the government, not ex-government people, but current government people, are asking Twitter for favors, then we have a very, very serious constitutional issue. Why? Well, the First Amendment prohibits the government from interfering with the freedom of speech. It does not prevent Twitter from interfering with the freedom of speech on its own bulletin board. But if Twitter is interfering with speech on its own bulletin board as a favor to the

government, presumably FBI agents that didn't want Trump to get reelected, I don't know this to be so. So this is a hypothetical. If Twitter was doing this as a favor to these FBI agents, then we have what's called a symbiotic relationship. This hand is the FBI. This hand is Twitter. My fingers are intertwined. They're together. The FBI and Twitter are working together to enhance each other. If that's the case, then an injured party can ask the court to impose on Twitter in the future the same restraints that the First Amendment imposes on the government. What does that mean? That means that Twitter would not be able to suppress stories because of their content, because Twitter was caught acting as the agent of the government. The other interesting question is, we know what Twitter, if this is true,

if it's true, in this hypothetical, we know what Twitter did for the government. What did the government do for Twitter? That's the interesting part. There needs to be a symbiotic relationship where they both benefit from this. So a liberal Democrat FBI agent may have benefited because his nemesis Donald Trump didn't get reelected, but he's using the power of the government in an illicit way. What favors did these people in the government who influenced Twitter offer to Twitter? Was it we'll leave you alone? Was it we won't investigate this? Or here's some interesting information that we came up with in our investigation of fill in the blank that you might want to know about. Again, these are all hypotheticals. I give you these hypotheticals to explain the law. So the law is when the private actor, Twitter, and the government

actor in this hypothetical now, the FBI, are so intertwined together, that's called Twitter is engaging in state action. You don't know if what Twitter is doing is coming from its heart or is doing a favor for the FBI. And when that happens, and it's properly before a court finds that Twitter was doing the FBI's bidding, they're not going to award damages to anybody. They're just going to enter an order prohibiting Twitter from suspending anybody's privileges or blocking anybody's postings on the basis of the content of the speech. Orville interpose with some neutral monitor in Twitter. So none of that is good. The government shouldn't be involved in Twitter. The FBI shouldn't be asking for favors from Twitter, and the courts shouldn't tell Twitter how to do their business. But Twitter may very well have shot itself in the foot here. Of course, again, in an

interesting bit of irony, this is the old Twitter that did it, the Jack Dorsey Twitter, but the new Twitter, the more libertarian version, not purely libertarian because Elon Musk, and I've called him out on this, has suppressed the speech of Ye. His speech is hateful, but he's got the right to speak, and suppress the speech of Alex Jones, both because of the content of speech, but it's the new Twitter that will suffer because of the involvement with the government of the old Twitter, if this theory of the FBI influencing Twitter is true. More as we get it. And a lot more is going to come out because Elon Musk is a master at keeping everybody's attention.

So he's drip, drip, dripping information. He's using a well-respected journalist, Matt Taibbi, who many of us know, to get this out there. And some of it he's releasing itself. So when I say more to come as we get it, in this case, you can count on more coming from Twitter. More as we get it. Judge Napolitano for judging freedom.