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A hand on the scales of justice?

Law enforcement suffers when the FBI plays partisan

FBI director Christopher Wray testifies during a Senate hearing on Nov. 17. Associated Press/Photo by Mariam Zuhaib

A hand on the scales of justice?
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Most Americans reflexively admire and respect the Federal Bureau of Investigations (FBI). Indeed, it has always been one of the great tools of law enforcement that people assume compliance with such an authority, rather than defiance, because most Americans want to be good citizens and cooperate with law enforcement. But behind every interaction with the police is that still subtle, unspoken reality, “If you do not cooperate, things may not go as well for you.”

What is true of individuals is also true of large corporations, including Twitter. Elon Musk, fresh off his purchase of the company, has decided to disclose “The Twitter Files,” original documents from within the company concerning censorship of numerous accounts. Some, primarily those released to journalist Bari Weiss, deal with COVID-19. Others, released through writers Matt Taibbi and Matt Shellenberger, relate to a broader range of topics, including the infamous Hunter Biden laptop. The documents reveal a disturbing pattern of attempts by the FBI to censor discourse in America’s electronic public square.

Typical is an email from an FBI agent in San Francisco on Nov. 10, 2022: “Hello Twitter contacts, FBI San Francisco is notifying you of the below accounts which may potentially constitute violations of Twitter’s Terms of Service for any action or inaction deemed appropriate within Twitter policy.” The agent then provided four accounts flagged for “civic misinformation.” Such speech-crimes include posting jokes like, “Americans, Vote today. Democrats you vote Wednesday [November] 9th.” Another offending tweet from a self-identified poll worker said, “If you’re not wearing a mask, I’m not counting your vote.”

As I said above, an email from an FBI agent to “Twitter contacts” is not often read as a suggestion. There may be no explicit “or else” contained in the email, but publicity-sensitive, lawsuit-cautious companies understand that compliance with an FBI request is the usual answer, whether or not it comes stapled to a subpoena.

When asked about the disclosures by FoxNews.com, an FBI spokesman replied, “The correspondence between the FBI and Twitter show nothing more than examples of our traditional, longstanding, and ongoing federal government and private sector engagements, which involve numerous companies over multiple sectors and industries. As evidenced in the correspondence, the FBI provides critical information to the private sector in an effort to allow them to protect themselves and their customers.”

Our government—including the FBI—has a responsibility to protect free speech, not to censor it.

On the one hand, the FBI statement is quite right. The FBI provides a valuable service to American companies when it comes to topics like Chinese espionage, computer hacking, and intellectual property theft. America’s superpower status is tightly tied to its economic might, and our enemies know this. The FBI and other law enforcement agencies play an important role in protecting our economy from those who would undermine our nation through the soft underbelly of private sector institutions.

On the other hand, the FBI statement is obviously wrong. A joke like telling voters from the other party to vote on Wednesday is as old as the republic itself. It is not the job of FBI agents to sit in their cubicles on Twitter, clicking refresh, looking for individual accounts posting election-related satire. Our government—including the FBI—has a responsibility to protect free speech, not to censor it.

If these emails were the extent of the FBI’s mistake, it would be sufficiently disheartening, and should lead to serious accountability at the top. But what’s far more worrisome is how this fits into a pattern of “misinformation” censorship across government agencies, from Homeland Security to Health & Human Services. There’s also an equally disturbing pattern of politicization at the FBI and U.S. Department of Justice, from selective investigations and prosecutions of pro-lifers to the raid on a former president’s home to the investigation of politically active parents as domestic terrorists.

As I said at the beginning, Americans cooperate with law enforcement for two reasons. There is the implicit, “or else we will bring the hammer.” But that threat is rarely needed, because most Americans most of the time want to be helpful because they assume the boys in blue are the good guys.

That is a noble and praiseworthy assumption, and one I share. But the FBI’s job of fighting crime will be a lot harder if a significant portion of the country, overwhelmingly self-identifying as conservative Republicans, no longer trusts the agency. To avoid that outcome, the agency must repair its image by rejecting what appears as a partisan agenda and return to its core crime-fighting mission without fear or partisan favor.

Daniel R. Suhr

Daniel R. Suhr is an attorney who fights for freedom in courts across America. He has worked as a senior adviser for Wisconsin Gov. Scott Walker, as a law clerk for Judge Diane Sykes of the U.S. Court of Appeals for the 7th Circuit, and at the national headquarters of the Federalist Society. He is a member of Christ Church Mequon. He is an Eagle Scout, and he loves spending time with his wife Anna and their two sons, Will and Graham, at their home near Milwaukee.

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