“Fascism is the stage reached after communism has proved an illusion.” F. A. Hayek.
Lo and behold, with the exposition of the Twitter Files by Elon Musk, it is yet another release of documents pertaining to how our government engaged in conduct whereby it flagrantly and blatantly violated the Constitution. Again. By doing so, it infringed on the rights of average Americans. Not just major players in the public sphere.
Whatever happened to a government of the people, by the people, and for the people? Ever since Woodrow Wilson established what is now known as the D.C. Swamp, and its proliferation since, the United States federal government has taken Abraham Lincoln’s popular phrase…and flipped it on its head.
But, President Reagan’s statement regarding the relationship of the People to its government continues to ring truer with each passing day. Government is not the solution to our problem. Government is the problem. Thankfully, what we have now, they did not, during Reagan’s time: a civil remedy to be monetarily awarded because of government deprivation of individual constitutional rights.
The Twitter Files
For my dear readers unfamiliar with Elon’s Twitter Files, here is a brief summary:
(1) Twitter systemically censored free speech and banned/shadow banned conservative voices, both government officials in the Trump Administration, and private individuals, at the behest of the FBI, Intelligence Community, Department of Defense, and more;
(2) These actions included: building massive blacklists, preventing unwanted tweets from trending, limiting the visibility of entire accounts and tending topics, blocking search results, among other things.
(3) The bans and other actions were entirely arbitrary, and decisions were made by Twitter executives and employees who categorically bend to the far left ideologically. Some would even say they’re commies. (It’s me, I’m Some). And, the worst part;
(4) The FBI paid Twitter $3.4 million dollars (i.e. your tax dollars) for all of this. The total amount from all other government actors is unknown at this time.
That is only a brief synopsis. For a full accounting, go here.
Suing the Federal Government, For Dummies
This blueprint for a federal lawsuit is free for the taking. The Federal Rules of Civil Procedure regarding class action lawsuits apply, as well, for added fun.
Through all my time arguing with my local government about what it can and cannot do (see below), I never thought I would come across such a clear cut case to sue, and win, against the federal government, its respective agencies, and private actors who carried out its demands.
For many years, our legal system has had in place Title 42 U.S.C. § 1983, a civil action (civil lawsuit) for the depravation of rights under the color of law. In short, anyone under the façade of law or state power, who deprives anyone of their constitutional or statutory rights, breaks the law.
Until recently, however, all the law afforded to a prevailing plaintiff was a declaratory judgment. Basically, a piece of paper saying you’re right.
Justice Clarence Thomas, delivering the Court’s nearly unanimous opinion*, changed this. Under Uzuegbunam v. Preczewski, the Court held that the government cannot regulate damage-less, noneconomic activity. With a special emphasis on free speech and religious freedoms. The FBI and others illegally regulated free speech through their communications with Twitter. The agency relationship between the agent and the institution carries with it the “color of law” and the illusion of state power. That is, there was no real law for them to assert power, only their agency.
Justice Thomas in the Court’s opinion added a long-waited cherry on top, vital to whoever takes up this class action. He wrote, Congress places “no minimum-amount-in-controversy requirement on federal courts’ jurisdiction of violations of [federal and constitutional rights].”
In other words, Americans who have had their constitutional rights deprived from them via state action or the color of law, or both, can hit where it hurts: pocketbooks. And not only the FBI’s, et. al, but the private companies, as well.
For almost two years, I have been shadowbanned by Instagram (Facebook). It was obvious to tell, and I collected a plethora evidence. Notably, after the release of the Twitter Files, my engagement has 10x’ed from where it was only a few weeks ago.
If I were a betting man, and I am, something tells me Facebook saw the Twitter Files and does not want a Facebook Files to be released during pre-trial discovery.
We should not let them get their wish.
Tying it All Together
This may come as a shock to some. But private conduct condoned, nodded at, or directed by state actors to deprive people of constitutional rights is, not surprisingly, unconstitutional. It is “axiomatic” the government “may not induce, encourage, or promote private persons to accomplish what [the government] is constitutionally forbidden to accomplish.” Norwood v. Harrison (1973). The government cannot tell Peter to silence Paul. Go figure.
Color me curious, but this would mean the federal government and its respective agencies are forbidden to “induce, encourage, or promote” Twitter, Facebook, Google, et. al. to deprive Americans of their First Amendment right to free speech.
If an FBI or CIA agent requesting that a Twitter executive take a “look” and “do something” about disfavored information, such as the Hunter Biden Laptop fiasco, is not encouraging or promoting. Then, most assuredly, paying them $3.4 million is inducement. Carrot, meet stick.
For plaintiffs to prevail, all that must be proven is the government violated the constitution by “induc[ing], encourag[ing], or promot[ing]” the private actor to deprive someone of their constitutional rights. The actor need not actually deprive. Here, however, we have all parts: the inducement, encouragement, and promotion—and the actual deprivation taking place.
To me, it is shocking no one has filed this class action lawsuit yet. Hopefully, someone will take this blueprint and make whole all Americans who have been deprived of their rights by Big Tech.
Maybe, just maybe, shining spotlights against Twitter, Facebook, Google, et al.’s incestuous relationship with adverse government actors will lead to a tipping point for individual freedoms, and the restoration of the foundation our constitutional republic was built upon. As they say, sunlight is the best disinfectant.
Mackenzie Alan Bettle, Esq. is an attorney licensed in the State of Arizona.