Jonathan Adler and Congressman Ro Khanna:
Twitter banned links to the story and suspended accounts that shared it, including President Trump’s press secretary and the New York Post itself—arguing that the story violated company policy because it contained information obtained through illegal means. Under the same logic, they’d have to suspend any account that posted the Pentagon Papers, which is protected by New York Times Co. v. U.S. (1971), or the story of Mr. Trump’s leaked tax returns.
As Silicon Valley’s representative in Congress, I reached out to Twitter at the time to share these concerns. In an email meant to be private, but recently made public by Matt Taibbi’s “Twitter Files” thread, I wrote to Twitter’s general counsel that the company’s actions “seemed to be a violation of First Amendment principles.” Although Twitter is a private actor not legally bound by the First Amendment, Twitter has come to function as a modern public square. As such, Twitter has a responsibility to the public to allow the free exchange of ideas and open debate.
Unlike many who comment on such controversies, Rep. Khanna recognizes that whether a company like Twitter is legally obligated to respect free speech principles is a seprate question from whether it is desirable or beneficial for it to do so. That Twitter is not required to provide a robust forum for divergent views and perspectives does not mean it should not do so. Put another way, pointing out that Twitter is not bound by the First Amendment is no answer to criticism of Twitter for selectively suppressing speech or information that is disagreeable or disfavored.