Warnock, Musk, and the First Amendment
It's been a busy Dec. 2 - Dec. 8
Hats off to super organized and committed Georgia Democrats and Raphael Warnock for winning a full six-year term for the incumbent senator! Warnock won by a decisive three points in the no-longer ruby red
Peach State.
Warnock treated in-person and TV viewers to a moving, beautifully crafted acceptance speech–the kind retired high school English teachers like The Resistant Grandmother (TRG) appreciate, as demonstrated by my nodding frequently while dabbing glistening eyes.
Warnock’s undulating yet symmetrical syntax, cultural references, and well-placed metaphors took the acceptance speech genre to the next level, and it’s too bad there aren’t more like it. Perhaps the honor of following in Martin Luther King’s footsteps as pastor of the Ebenezer Baptist Church in Atlanta self-selects people who know a thing or two about inspiring a crowd.
Back to the valley
But now it’s time to “get back down into the valley to do the work,” as Pastor Warnock advised us. And in that mode TRG has been working up a lather over the unholy triad of Elon Musk, Kevin McCarthy/the incoming Republican Congress, and Donald Trump. More specifically, I'm concerned about what McCarthy and company plan on doing to prop up Trump–the man midterm voters resoundingly rejected along with Trumpism, the sorry movement he’s left in his wake.
While midterm voters turned thumbs down on Trump-inspired election-deniers, chaos, deep divisions in government, and attack-dog politics, House GOP’ers plan to make the upcoming 118th Congress a veritable Roman festival of the afore-mentioned attack-dog politics, chaos, and division without doing much of anything else.
Instead of developing a governing agenda to address immigration, inflation, and crime–all issues Republicans ran on this year–Republicans are digging in for non-stop investigations.
GOP Agenda: Inflation-Out; Hunter Biden-In
Hunter Biden tops the list. But so does the Department of Justice, for prosecuting Jan. 6 insurrectionists, and the FBI for its warrant-driven search at Mar-a-Lago for dozens of boxes of stolen national security documents, while more looted documents there are still turning up.
GOP House members will subject the rest of us to the alternate reality now also being propagated by the engineer-come-social media mogul Elon Musk, whose recent forays into investigative reporting would be laughable if not so dangerous for responsible journalism in the U.S.
In my November 22, posting, “Kevin McCarthy is Elon Musk-ing the GOP,” TRG wrote that McCarthy was bringing the same kind of disarray to the American Congress as Musk was bringing to Twitter. And events in the last two weeks have only reinforced that view.
They just don’t get it
McCarthy, Trump acolyte Marjorie Taylor Greene (R-GA), James Comer (R-KY), and other revenge-hungry House members don’t seem to understand that midterm voters rejected Trump and what he stands for. And Musk doesn’t comprehend that flying off the handle on behalf of Trump is not only out-of-step with growing anti-Trump sentiments, but also not a good look for a social media CEO.
An engineer by trade without journalistic experience or training, Musk did well by spearheading the battery-driven car, but has now sullied his reputation by taking on the alt-right mindset and promoting it using Twitter. But the price has been disastrous, revelatory (about Musk’s judgment), and even comic, in that Musk has been made to look foolish.
What happened centers around an article that appeared in the tabloid New York Post in October 2020, less than a month before the Nov. 3
presidential election.
The story was based on information obtained allegedly from a laptop Hunter Biden left at a Delaware repair shop and never picked up. The laptop’s contents then fell into hands of alt-right actors, including former Trump staffer and podcaster Steven Bannon and lawyer Rudy Giuliani.
Giuliani’s Ukraine
The October 2020 New York Post story claimed there was a 2015 email on the laptop that suggested the then vice president’s son helped arrange a meeting between his father Joe Biden and an executive at a Ukrainian energy company, Burisma. Hunter Biden served on the board of the company at
the time.
Here Ukraine becomes an ironic backdrop of the Biden/Giuliani story. Ukraine was the impetus for the first Donald Trump impeachment trial in 2019. Trump was impeached based on telephone and witness evidence showing the 45th president tried to extort Ukrainian President Volodymyr Zelensky for dirt on Joe Biden in exchange for U.S. weapons Ukraine needed to defend itself against Russian aggression.
Giuliani traveled back and forth to Ukraine and stayed on and off for months, interfering with U.S. foreign policy while trying to sully Biden’s reputation. And so Hunter Biden’s business dealings in the country were also a target of Giuliani’s probe.
So the unclaimed laptop computer left by Hunter Biden in a Delaware repair shop gave Giuliani and others in Trump’s camp just the opening they might need to find dirt.
The tabloid New York Post article relied on documents allegedly taken from the computer to prop up an unsupported argument put forth by Giuliani and other Trump supporters that as vice president Joe Biden had shaped American foreign policy in Ukraine to benefit his son.
An updated Sept. 13, 2021 New York Times article, “What We Know and Don’t Know About Hunter Biden’s Laptop” by Adam Goldman discussed that
plan, saying:
“...the (New York Post) article suggested that the former vice president met with an adviser to a Ukrainian energy company whose board Hunter Biden sat on, Burisma Holdings. The article referred to an email that the adviser, Vadym Pozharskyi, sent to Hunter Biden thanking him for ‘giving an opportunity to meet your father’ and to spend ‘some time together.’”
No good deed goes unpunished
The Times reported that, “Mr. Biden has long said he knew nothing about his son’s business activities in Ukraine.” And there was no evidence on the laptop to suggest the meeting took place.
Twitter posted the New York Post story, but did not take the extra steps of providing links to it or allowing readers to share it. It was a middle-of-the-road position in that it ended up pleasing no one–ticking off the right while also propagating dubious information obtained by dubious means published in the New York Post.
Predictably, the alt-right echosphere blew up, charging the 2020 Twitter management with colluding with Democrats and the FBI in limiting the reach of the story in the last month of the 2020 campaign.
But serious questions about the laptop’s chain of custody after it left Hunter Biden’s possession have since made Twitter’s decision appear justifiable, and reasonable, especially given the limited information available about the authenticity of the laptop at the time.
CNN described the possibility of hacking and altering in an online October 2020 CNN report, “The Anatomy of the New York Post Hunter Biden Story,”
CNN wrote:
“ …the series of stories contained hacked materials and personal email addresses, so Twitter initially prevented people from posting links to the article, sending it via direct message and retweeting it.
“As CNN’s Chief Media Correspondent Brian Stelter noted on Reliable Sources Sunday, ‘We are not talking about fully reliable sources here,’ referring to the New York Post’s story.”
Subsequent analysis of the parts of the harddrive data provided to the Washington Post by a Republican operative who said he obtained the data from Rudy Giuliani authenticated some emails but could not verify everything else on it. The Washington Post wrote:
“The vast majority of the data — and most of the nearly 129,000 emails it contained — could not be verified by either of the two security experts who reviewed the data for The Post. Neither found clear evidence of tampering in their examinations, but some of the records that might have helped verify contents were not available for analysis.” https://www.washingtonpost.com/technology/2022/03/30/hunter-biden-laptop-data
Looking for dirt in all the wrong places
Undaunted, Musk assumed dirty dealings–both on Hunter Biden’s part and that of his now own (former) Twitter staff who determined not to widely circulate the New York Post story.
So when Musk became Twitter’s CEO this October, he then had the means of looking into the company’s internal files involving the 2020 decision and the discussions that led up to it.
In classic classroom tattletale fashion perhaps revealing Musk’s predetermined belief that former Twitter management had made a biased decision to help Biden and hurt Trump, Musk decided to publish
the transcripts.
He then hyped the release with statements promising the files “would tell what really happened.” And then on Friday he Tweeted:
“This will be awesome!” followed by a popcorn emoji representing hardly-contained zeal. This could soon be seen as a rookie mistake.
Dec. 2 “Twitter Files”
The files were published on Twitter on Friday night, Dec. 2 via a Tweet by Matt Taibbi, the former Rolling Stone reporter and now independent writer on the Substack platform. Taibbi said they were provided to him by Twitter management, presumably by Musk himself.
Once a hard-hitting, left-leaning journalist who famously went after one of the left’s favorite targets, Wall Street, Taibbi has more recently become a favorite with the alt-right blogosphere as his politics have inched ever closer to Trump. For example, Taibbi has asserted that Donald Trump had never colluded with Russians. Even Kevin McCarthy doesn’t believe that. (https://www.huffpost.com/entry/mccarthy-trump-putin-pays_n_591cc97ce4b03b485cae64c2)
No “October Surprise”
The files describe the Twitter decision of October 2020, just weeks before the Nov. 3 presidential election. October is in many respects a dangerous month for candidates who fear an “October Surprise,” some potentially damaging news released about a candidate without enough time for rebuttal.
This happened in October 2016 as then-FBI Director James Comey started up a new offshoot of the Hillary Clinton emails investigation.
Although in July of that year Comey announced the email inquiry showed no wrong-doing other than “carelessness,” Comey announced on Oct. 28, about two weeks before the Nov. 8 election, that he was re-opening the probe based on new information.
On Nov. 6–only two days before the 2016 election–Comey announced he had found nothing illegal and was closing the case. But the damage was done. Clinton then lost to Trump in the Electoral College count, quite possibly because of the October Surprise.
Clinton’s loss followed by the disastrous four years of the Trump presidency sensitized the media of the need to be wary of abetting false or dubious narratives so close to an election in any way.
Nevertheless, in October 2020, the New York Post published its unsupported story. Vanity Fair and other news sources reported that, because of the story’s sensational and unproven content, the New York tabloid’s reporters who were tasked to write the story requested their names be removed before publication, so no bylines appeared.
Bannon and Giuliani
Since then, various media outlets have analyzed laptop data, but in October 2020 that hadn’t been done. Adding to the story’s potential unreliability was the fact that the laptop’s content was made available by former Trump staffer and podcast host Steve Bannon and Trump lawyer Rudy Giuliani, famous for his on-going quest to find whatever dirt on the Bidens he could dredge or conjure up either in the Ukraine, China, or anywhere else.
The Post, the New York tabloid-style newspaper known for its alarming headlines in 72 point type and its Fox News-owning publisher, Rupert Murdoch, could have taken more time to verify the veracity of the content, but did not. It ran the story about the laptop’s contents, such as they were.
Twitter posted the story, but chose to do so without giving readers the ability to circulate it more widely from the Twitter site. The alt-right blogosphere has long speculated that Twitter chose to rein in the story’s circulation in October 2020 due to pressure from FBI or Biden campaign sources. But no evidence of that contention has appeared on the laptop or anywhere else.
But once Musk officially closed the deal to buy Twitter in late October of this year, he went looking for the Twitter files that could confirm or refute the right’s claims.
Rashomon
Finding the files, Musk decided they confirmed FBI/Biden collusion to not publish the story. But others with a more discerning, practiced eye have concluded they did nothing of the kind.
Instead, Twitter executives like Brandon Borrman asked if the story could be restrained as part of the platform’s policy. And other executives such as ex-CEO Dick Costolo and former head of “trust and safety” Yoel Roth debated the legality and wisdom of publishing unverified material that could have been hacked, according to “The Twitter Files Explained” by Blake Montgomery, Yahoo News.
So why did Musk see things so differently? The reaction was reminiscent to Rashomon, a 1950 Japanese film that tells a story from differing points of view based on personal perspectives and biases. It shows how unreliable narrators, those whose biases get in the way of objectivity, can deliberately or unconsciously skew reality to fit their aims.
Instead of raising the roof, the Dec. 2 release of Twitter’s 2020 files barely registered a ho-hum on the outrage meter. The predominant response was, ”What’s all the fuss about?” Even former Trump attack dog and staffer Sebastian Gorka Tweeted that he was “underwhelmed.”
Predictable Fox
But Fox News pundits like Tucker Carlson and other members of the alt-right media blasted the files as evidence the 2020 Biden campaign, the FBI, and Twitter were conspiring to “deny the public of its First Amendment rights!”
But, which rights? To learn or not learn in 2020 about something through inaccurate, incomplete, unverified information? The response to the story divided along predictably political–and professional–lines as most of the reaction centered around the well-reasoned wisdom in the 2020 Twitter decision to hold back.
The tale of different reactions was captured in a Dec. 4 New York Times article, “A Very Modern Media Maelstrom.” The article described:
“...a window into the fractured modern landscape of news, where a story’s reception is often shaped by readers’ assumptions about the motivations of both reporters and subjects.
“...the transcripts revealed discussion among reasonable people debating the journalistic propriety of promoting an article of dubious parentage and credibility.”
Adding injury to insult
But the new-to-media Musk was undaunted about his decision to suggest nefarious intentions on his company’s part. As if releasing dubious information were not enough, Musk added injury to insult by allowing the names and personal emails of the members of 2020 Twitter’s legal, policy, and communication teams to be published by Taibbi’s release of the materials, leading to a predictable onslaught of harassment and death threats by alt-right Trump trolls jacked up by Fox, et al.’s rants.
The blowback and ridicule Musk has received may have inspired what little apology he has uttered since publishing the files on Dec. 2.
Musk said he was sorry he allowed the public outing of Twitter staff members’ identities by posting the names and emails of the former staffers who participated in the discussions. Still, Musk has not apologized for the release itself.
TRG’s take
What the Twitter Files release does show is that an untutored, impulsive man has taken the helm of one of the world’s major social media platforms. It’s a tale of a person so rich and powerful he doesn’t know what he doesn’t know, or care enough to find out. And, that the people who remain around Musk are too dependent on continued employment to dare speak up and help him get steadier at the wheel.
If Musk really wanted to do a good job, he might have looked up First Amendment law prior to taking on Twitter. If he had, he would have learned that the First Amendment is more about responsibility than smarmy Tweets.
For example, people cannot yell “fire in a crowded theater,” and expect First Amendment protection, according to Justice Oliver Wendell Holmes in Schenck v. U.S. in 1919, an iconic case that began to define the responsibilities inherent in the First Amendment. In other words, the First Amendment is not absolute; there are exceptions based on the rights of others, too.
Another First Amendment case, New York Times v. Sullivan of 1964, further defined press freedoms and responsibilities. Although giving wide latitude to the press to promote the free flow of information in a free society, it said the press must not act with “false and reckless disregard for the truth.”
The Times v. Sullivan standard is currently at the heart of the Dominion voting machines case against Fox News Corp that allowed its prime time hosts to claim without evidence that Dominion voting machines were rigging the vote for Joe Biden in 2020.
If Twitter executives had decided to open up the New York Post story for wider circulation without knowing the information in it was or was not written, for example, by Russian hackers or other bad actors, could “reckless disregard” not have been applied in such a case? Using the “reckless disregard” standard it seems 2020 Twitter management had made the prudent decision, while Elon Musk, were he in their shoes at the time, would have not.
Chilling effect
Now, by mocking and outing Twitter’s former staffers for having showed caution, Musk risks creating a chilling effect for his current (remaining) employees, discouraging them from exercising the kind of abundance of caution that a responsible expression of First Amendment freedoms requires.
We’ve seen rich, willfully ignorant men wield power before, specifically between 2017-2021 during the Donald Trump presidency. But instead of viewing that time as a cautionary tale, Elon Musk may be considering it Twitter’s blueprint for 2022 and beyond.
–trg