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Below is my column in Fox.com on the potential criminal liability for Twitter executives, particularly Jack Dorsey, after the release of the Twitter files. While more material is being released, the files appear to contradict denials of Dorsey that there was no censorship or shadow banning targeting conservatives. As I note below, there are obvious defenses and much must still be learned about the underlying facts. However, Dorsey and others should clearly retain counsel in light of the contradictions in these files.

Here is the column:

The latest Twitter disclosures have raised potential legal liability for Twitter and its executives. No one appears more at risk than Twitter’s former CEO Jack Dorsey.

It is an ironic turn of events since Dorsey supported the takeover by Elon Musk and has called for all files to be released without filtering. Dorsey has the feel of a “designated defendant,” someone who was pushed forward by others to take any legal hit.

On its face, Dorsey has vulnerability after the latest release. He was repeatedly asked by members of Congress about censoring and shadow-banning, which has now been confirmed in these files.

In September 2018, Dorsey testified under oath and denied what these files appear to now confirm. Rep. Mike Doyle, D., Pa., asked, “Social media is being rigged to censor conservatives. Is that true of Twitter?”

Dorsey responded, “No.”

Doyle then asked “Are you censoring people?”

“No,” Dorsey said.

“Twitter’s shadow-banning prominent Republicans… is that true?” Doyle asked.

Dorsey again said no.

Dorsey was also asked about my prior testimony on private censorship in circumventing the First Amendment as a type of censorship by surrogate. Dorsey and the other CEOs were asked about my warning of a “‘little brother’ problem, a problem which private entities do for the government that which it cannot legally do for itself.” In response, Dorsey insisted that “we don’t have a censoring department.”

It now appears that the entire company was operating as a censoring department. However, there were in fact super-censors. Dorsey did not mention the Strategic Response Team-Global Escalation Team (SRT-GET), which operated above what journalist Bari Weiss described as “a level beyond official ticketing, beyond the rank-and-file moderators following the company’s policy on paper.”

That group reportedly included Vijaya Gadde, head of Legal, Policy and Trust; Yoel Roth, the global head of Trust and Safety; CEOs Jack Dorsey and Parag Agrawal, and others.

Notably, others at the company made similar denials as Dorsey but may not have done so under oath. In 2018, Gadde and head of product Kayvon Beykpour expressly declared, “We do not shadow-ban. And we certainly don’t shadow-ban based on political viewpoints or ideology.”

Even if untrue, lying in public is generally not a crime. However, when you repeat a lie to federal investigators or Congress or the courts, it becomes a federal offense.

The question is whether Dorsey was left in the dark on these decisions. He was reportedly a member of SRT-GET. However, some of the files indicate that these decisions may have been made without his knowledge. That includes the decision on the Hunter Biden laptop scandal, which Dorsey called a “total mistake.”

Dorsey could quibble over the term “shadow-banning” but the question was obviously meant as a follow-up to the inquiry over “rigging” discourse on the platform. He could also stress other answers, where he tied “shadow-banning” to a more subjective notion of political bias. For example, Dorsey also repeated these statements in public, including an appearance with Sean Hannity on Fox, when he was asked if “Twitter has ever been involved in shadow-banning, Dorsey again categorically denied such practices: “We do not shadow-ban according to political ideology or viewpoint.”

For most people, Dorsey’s comments clearly suggested that there was no shadow-banning. However, he could claim that he knew that they were shadow-banning but that they were not doing so “according to political ideology or viewpoint.” That is clearly refuted by the new files showing a hair-triggered censorship system directed against conservative and Republican posters.

The other defense is lack of knowledge, but, even if accepted, that will raise the question of whether this was a case of a designated defendant or willful blindness. 

In some cases, there is a suspicion that corporations will assign some executive to sign off on compliance or certifications as the fall guy or designated defendant if things go wrong. The chump is often a junior lawyer or executive who takes personal responsibility for certifying a false fact.

Dorsey is clearly no chump or junior executive. The question is then whether this was a case of willful blindness or an attempt by other executives like Gadde or Roth to give him plausible deniability by keeping him in the dark.  He then became the public face in unequivocally and confidently denying practices like shadow-banning.

The greatest defense for Dorsey may be found in the Justice Department itself. Any prosecution of Twitter executives could prove a hard sell for Attorney General Merrick Garland, whose department has been repeatedly accused of pronounced political bias. 

While Garland has aggressively pursued contempt sanctions against Trump associates, it is not clear if he would prove as aggressive with Democratic allies like Dorsey or other Twitter executives. He could face that question if the House under the GOP pursues perjury or contempt sanctions.

Dorsey once said about Twitter that “It’s really complex to make something simple.” He may now be hoping that his answers before Congress were simple enough to make any prosecution complex.

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