If a tweet declares war, is it illegal to take it down?

Background: twitter’s TOS lets them take down violent tweets, but violent tweets by world leaders are newsworthy, but they took down a fatwa, but they’re pondering some kind of head of state or world leader exception, but they’ll continue to enforce it selectively.

If a country chose for some reason to declare war via twitter, and twitter spun their Wheel of TOS and took down the tweet, would twitter be exposed to serious legal consequences? I think there’s an argument for ‘maybe’. The case law here is completely unprepared for the internet.

‘Only congress is empowered to declare war’ you might say. Technically yes, but executive war power and permanent war are in vogue this century.

This 9/11 OLC memo claims presidential authority to fight terrorists without asking. More recently, someone wasted 59 Tomahawks and an airstrip without asking congress first.

An AUMF or other document from congress could be announced on twitter by an elected official in congress or the executive branch.

A less exciting version of this question that’s legally similar: if there’s a war on and a tweet contains a threat or warning of military force (by the US), is it illegal to take it down.

The federal crime of treason is ‘levying war’ against the US or ‘adhering to’ (helping?) its enemies. But the case law here is sparse. Treason intersects with speech in the Tokyo Rose case from WW2: she served 6 years for treason in a women’s prison in West Virginia because she ‘did speak into a microphone concerning the loss of ships’.

Contempt of congress is another vague power that could apply. That’s mostly used to punish people who refuse to give congressional testimony, but in theory applies to interfering with any ‘proceeding of congress’, i.e. the declaration of a war.

Lincoln tried to apply military law to civilians during the Civil War to suppress dissent. Interesting case law here is Ex parte Milligan, where the supreme court made it pretty hard to try civilians under military law because their actions didn’t take place in the theater of war. Before this went to appeal, these guys had death by hanging on their minds. The charges were aid and comfort, insurrection, disloyal practices, ‘violation of the laws of war’, that sort of thing.

Is twitter the theater of war? With multiple nation states participating in cyber warfare, the answer could be ‘maybe’.

States of war or emergency often produce new laws which are applied right away. They also activate laws that are not normally in effect and which have sparse case law.

The Espionage Act of 1917 was Woodrow Wilson’s brainchild to control public opinion at home. The history of first amendment case law begins with the judicial response to this.

In asking congress to pass the act, Wilson said that press censorship was ‘absolutely necessary to the public safety’, and the congressional debate on the act contained two sides of an argument that americans are pretty used to after 100 years of back and forth on this.

Less nuanced, Wilson’s attorney general Gregory said this about dissenters:

Gregory convinced Wilson to support vigilante groups like the APL who looted german-american homes, wiretapped people, and committed gaudy public executions. Wilson finally spoke against them after they whipped a minister at an anti-war rally.

The justification for entering the war was that germany sank the Lusitania, a civilian vessel. When german-americans objected that it was carrying weapons, Wilson said:

If you think we’re past this as a society: after 9/11 John Ashcroft said ‘To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics … give ammunition to America’s enemies’.

Parts of the Espionage Act were repealed in 1921, and the law has been defanged by some 1st amendment case law, but enough remains in effect. It’s been used to go after the pentagon papers guy and more recently Edward Snowden.

You may say we’re protected against future wet ink laws by a strong history of 1st amendment rulings in the 20th century. But courts have no idea what to do about the internet and have been using the new technology as an excuse to roll back some free speech protections.

The 5th circuit in Bell v Itawamba weakened Tinker, a major 20th-century supreme court case on student speech at school. Tinker ruled student speech is not subject to disciplinary action if it’s non-disruptive. Thomas in 1979 permitted students to circulate a nasty newspaper because it was all happening off campus. Bell ended that by saying a rap posted to youtube was effectively on campus.

If case law deems the internet to be on-campus it may also be in the theater of war.

Twitter can try to defend themselves against a treason or wet ink prosecution by pointing at their TOS. “We’re not levying war against the state, we’re just doing what we agreed to do.”

If there’s case law on using a contract to defend against a treason charge, I haven’t seen it. In general, contracts don’t empower you to perform any act that would be criminal otherwise. For example, if you owe someone money under a contract, they can’t use force to collect it – that would be stealing. They need to use the court system.

There’s an ‘on behalf’ argument you can make. In theory the twitter TOS are a service twitter provides to protect their users, so TOS enforcement isn’t being done to you, it’s being done for you. But there’s a weird ‘l’etat c’est moi’ thing going on here – if an individual who represents the state posts a military thing, twitter is acting against the state in taking it down, not against that individual person.

Also, twitter hasn’t promised to enforce their TOS – it’s discretionary, which may mean that like most TOS terms this one is effectively garbage. I think there must be some way in which selective enforcement exposes consumer companies to future liability but I think this is wishful thinking on my part.

Sue! The courts are great. Twitter doesn’t even have a mandatory arbitration provision, this would go straight to SF County and probably end up in the very unfair ninth circuit. It would be a spectator sport.

If twitter wanted heads of state off their platform, they would have asked them long ago. They put up with everything because like the rest of the internet they grow in the light cast by celebrities. They can’t afford to have these world-changing debates happening on another short text platform.

Source: Github.io

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