What Are Heterodox Free Speech Warriors Doing About Trump's Censorship-Industrial Complex? Nada
Trump is issuing subpoenas demanding social media platforms hand over data about ICE protesters but the 'Twitter Files' agitators couldn't care less
For the last five years, we had to endure an endless, breathless parade of hyperbole regarding the so-called “censorship industrial complex.” We were told, repeatedly and at high volume, that the Biden administration flagging content for review by social media companies constituted a tyrannical overthrow of the First Amendment. In the Missouri v. Biden (later Murthy v. Missouri) case, Judge Terry Doughty, a Trump appointee, in a decision that seemed to consist entirely of Twitter threads pasted into a judicial ruling, declared that the White House sending angry emails to Facebook “arguably involves the most massive attack against free speech in United States’ history.”
Never mind that the Supreme Court later reviewed the evidence and found that the platforms frequently ignored those emails, showing a lack of coercion, leading them to reverse the lower courts for lack of standing. To the “Twitter Files” crowd and the self-anointed “free speech absolutists,” the mere existence of government officials simply requesting private companies to look at terms of service violations was a sign of the end of the Republic.
So, surely, now that the Department of Homeland Security is issuing administrative subpoenas—legal demands that bypass judges entirely—to unmask the identities of anonymous political critics, these same warriors are storming the barricades, right?
Right? Riiiiight?
According to a disturbing new report from The New York Times, DHS is aggressively expanding its use of administrative subpoenas to demand the names, addresses, and phone numbers of social media users who simply criticize Immigration and Customs Enforcement (ICE):
In recent months, Google, Reddit, Discord and Meta, which owns Facebook and Instagram, have received hundreds of administrative subpoenas from the Department of Homeland Security, according to four government officials and tech employees privy to the requests. They spoke on the condition of anonymity because they were not authorized to speak publicly.
Google, Meta and Reddit complied with some of the requests, the government officials said. In the subpoenas, the department asked the companies for identifying details of accounts that do not have a real person’s name attached and that have criticized ICE or pointed to the locations of ICE agents. The New York Times saw two subpoenas that were sent to Meta over the last six months.
This is not a White House staffer emailing a company to say, “Hey, this post seems to violate your Covid misinformation policy, can you check it?” This is the federal government using the force of law—specifically, a tool designed to bypass judicial review—to strip the anonymity from domestic political critics. If Judge Doughty thought ignored emails were the “most massive attack on free speech in history,” I am curious what he would call the weaponization of the surveillance state to dox critics of law enforcement. Or … would he think it’s fine, because it’s coming from his team?
As the Times reveals, this is really all about intimidation: “Mr. Loney of the A.C.L.U. said avoiding a judge’s ruling was important for the department to keep issuing the subpoenas without a legal order to stop. ‘The pressure is on the end user, the private individual, to go to court,’ he said.”
The DHS claims this is about “officer safety,” but documenting the public actions of law enforcement officers in public spaces is a foundational First Amendment right. The moment these subpoenas are actually challenged in court by competent lawyers, the DHS cuts and runs:
The account owner alerted the A.C.L.U., which filed a motion on Oct. 16 to quash the government’s request. In a hearing on Jan. 14 in U.S. District Court for the Northern District of California, the A.C.L.U. argued that the government was using administrative subpoenas to target people whose speech it did not agree with. ... Two days later, the subpoena was withdrawn.
This is the government effectively admitting that its demands are legally baseless. They are relying on the high cost of litigation to intimidate both the companies and the individuals. It is a bluff backed by the seal of the Department of Homeland Security.
And this brings us to the most glaring hypocrisy of the current moment: the absolute silence of Elon Musk and X.
Years ago, the “old” Twitter—the one Musk falsely derided as a haven for censorship—was the gold standard for fighting these exact types of demands. In 2017, Twitter famously sued the federal government to stop an administrative subpoena that sought to unmask an anonymous account critical of the Trump administration. Twitter argued, correctly, that unmasking a critic violated the First Amendment. They won. The government withdrew the subpoena.
Twitter (the old company, not the new monstrosity known as X) has a long history of this. In 2012, they challenged a court ruling that said users had no standing to protect their data. In 2014, they sued the DOJ for the right to be transparent about surveillance requests.
Contrast that with today. The Times report notes that Google, Meta, and Reddit have received these subpoenas. It mentions that Twitter previously fought them. But there is zero indication that Elon Musk’s X—the platform ostensibly dedicated to “free speech absolutism”—is lifting a finger to stop this. While Musk is busy personally promoting racist ahistorical nonsense, the actual surveillance state is knocking on the door, demanding the identities of political critics. And we’ve yet to see anything suggesting Musk is even remotely willing to push back on his friends in the administration he helped get elected, and then gleefully was a part of for a few months.
And where are the scribes of the “Twitter Files”? Where is the outrage from the people who told us that the FBI warning platforms about foreign influence operations was a crime against humanity?
Matt Taibbi, who has spent the last few years on the confused idea that platform moderation is state censorship, offered a tepid, hedging response on X, saying: “If it’s true, I think it’s terrible”—before immediately pivoting to a strange whataboutism regarding investigations into actual proven Russian attempts at election interference.
It is true, Matt. The New York Times saw the subpoenas. The ACLU is fighting them in court. This isn’t a vague “if.” This is the government using administrative power to bypass the Fourth Amendment to violate the First Amendment.
It seems like we actually found that “censorship industrial complex,” huh?
Meanwhile, Michael Shellenberger and Bari Weiss seem to have nothing to say. Weiss now runs CBS News, which has its own problems with government pressure on speech—the network just pulled a Colbert interview with a Democratic politician after FCC Chair Brendan Carr threatened consequences for talk shows that don’t coddle Republicans. As far as I can tell, neither CBS News nor Weiss’s Free Press has mentioned the DHS subpoena story. The Free Press is instead running think pieces on how we may “regret” the release of the Epstein files. Really speaking truth to power there!
This is what so many of us kept pointing out throughout the “Twitter Files” hysteria: the “free speech” grift was never about protecting individuals from the state. It was about protecting a specific type of speaker from the social consequences of their speech. The framework was always selectively deployed—outrage when a platform enforces its own rules against their allies, silence when the surveillance state comes for their critics.
The Trump administration is betting on that asymmetry. Its betting that Google, Meta, Reddit, and Discord will quietly comply rather than spend millions in litigation over users who aren’t famous enough to generate headlines. Its betting that the “free speech absolutists” will look the other way because the targets are the wrong kind of dissident.
Right now, the only institution consistently fighting these subpoenas is the ACLU. The platforms are folding. The “Twitter Files” journalists are hedging. And the man who bought a social media company specifically to be a “free speech” champion is busy posting memes.
Turns out we found the censorship industrial complex. And everyone who spent years warning us about it just shrugged.
An earlier version of this article was first published in Techdirt.
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Right-wing groups that scream about freedom of speech often are interested only in freedom of speech for people who support their views. If you disagree with them, they’re much less interested.
Everyone who is involved in Greater Trumpistan is a hypocrite, end of. Is the left guilty of soft censorship? Absolutely, and it's about time we got serious about it. Is banning the ideas of the left through government restraint or threatened lawsuits better? No, it's arguably far worse because that's *hard* censorship, the kind explicitly banned by the First Amendment. They're both bad, and FIRE (the Foundation for Individual Rights and Expression) have been doing yeoman's work standing up against both varieties. The partisanship and polarization in this country (and others...looking at you, Keir Starmer) is so bad that very few people have the consistency to stand on the principle of free expression. That's why I give Greg Lukianoff and FIRE such high marks, because both the Lefty profs and MAGA goons seem absolutely happy to suppress ideas they don't like. It takes courage, the strength of your convictions, and a good moral compass to fight against all prior restraint. (http://www.fire.org/)