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No, You Do Not Have a Constitutional Right to Post Hunter Biden’s Dick Pic on Twitter

Elon Musk and Matt Taibbi’s First Amendment follies.
December 3, 2022
No, You Do Not Have a Constitutional Right to Post Hunter Biden’s Dick Pic on Twitter
Elon Musk and a Twitter logo are seen in this illustration photo in Warsaw, Poland on 30 November, 2022. The revamped Blue Twitter subscription might not be available as in-app purchase on Apple devices when it eventually relaunches. The decision presumably was made so that Twitter can dodge Apples 30 percent cut of App Store purchases. While Elon Musk is publicly tweeting his displeasure with Apple, it appears he wants to avoid having to pay Apples fees. (Photo by STR/NurPhoto via Getty Images)

While normal humans who denied Republicans their red wave were enjoying an epic sports weekend, an insular community of MAGA activists and online contrarians led by the world’s richest man (for now) were getting riled up about a cache of leaked emails revealing that the former actor James Woods and Chinese troll accounts were not allowed to post ill-gotten photos of Hunter Biden’s hog on a private company’s microblogging platform 25 months ago.

Now if you are one of the normals—someone who would never think about posting another person’s penis on your social media account; has no desire to see politicians’ kids’ penises when scrolling social media; doesn’t understand why there are other people out there who care one way or another about the moderation policies surrounding stolen penis photos; or can’t even figure out what it is that I’m talking about—then this might seem like a gratuitous matter for an article. Sadly, it is not.

Because among Republican members of Congress, leading conservative media commentators, contrarian substackers, conservative tech bros, and friends of Donald Trump, the ability to post Hunter Biden’s cock shots on Twitter is the number-one issue in America this weekend. They believe that if they are not allowed to post porno, our constitutional republic may be in jeopardy.

I truly, truly wish I were joking.

Here’s a synopsis for the blessedly uninitiated:

On Friday, Elon Musk promised to reveal “what really happened with the Hunter Biden story suppression by Twitter.” It turns out that he had provided a trove of internal corporate documents to the Tulsi Gabbard of Substack, Matt Taibbi, who said they amounted to a “unique and explosive story”—revealing the juicy details inside Twitter’s decision to suppress the New York Post’s Hunter Biden laptop story, which had previously been rejected by such liberal outlets as Fox News and the Wall Street Journal due to its suspicious provenance. Taibbi agreed to divulge these private emails on Twitter itself rather than via his Substack as part of a “few conditions,” which he does not detail, that were imposed on him, presumably by Musk or a Musk factotum.

The documents Taibbi tweeted on Friday were titillating in the way that reading private correspondence revealing what people were really saying around a controversial subject always is, but nothing new was learned about the contours of the story. The leak mostly relitigates two facts that have already received much ink across the media: 1) How Twitter throttled the New York Post’s initial story about Hunter’s laptop based on what we now know was an incorrect assessment of its source; and 2) How political campaigns and government agencies have worked with social media companies—in this case Twitter—to flag troubling content.

On the first point, the emails confirm the essential consensus that has come into focus in reporting on the matter: Twitter got out over its skis on the ban and a typical corporate bureaucratic goat rope ensued as the company tried to “unfuck” the situation, as one employee put it. To say that this is not a new revelation would be an understatement given that Twitter’s former CEO Jack Dorsey admitted that this was a mistake over a year ago.

As such it was the latter point that drove the most hysterical discussion online on Friday.

The most retweeted installment in Taibbi’s thread (so far) was this, which purported to show the Biden campaign directing Twitter to delete specific tweets:

This supposed smoking gun resulted in Musk responding to his own journalistic stenographer on Twitter with a fire emoji and the comment “If this isn’t a violation of the Constitution’s first amendment, what is.” Musk was so impressed with this digital citizen’s arrest, that he made it his pinned tweet, after which the MAGA attaboys for Musky came hot and heavy.

Right-wing commentator Buck Sexton (real name), said this was a “bright red line violation” and that Biden should be IMPEACHED for it. Rep. James Comer (R-TN) was on Fox promising that everyone at Twitter involved with this would be brought before the House Oversight committee. Rep. Billy Long retweeted several MAGA influencers praising Elon for, among other things, “exposing corruption at the highest levels of society” (Projection Alert). Meanwhile Kari Lake hype man Pizzagate Jack Posobiec declared this the “biggest story in modern presidential election history,” claimed that “we can never go back to the country we were before this moment,” and donned this “a digital insurrection.”

In reality, all they really had was a digital erection.

The offending material that Taibbi revealed was removed by Twitter at the Biden campaign’s request turns out to have been a bunch of links to Hunter Biden in the buff.

There was a tweet from a Chinese account featuring a naked woman on top of Hunter Biden, as well as a family photo. Two pictures of Hunter Biden’s penis, one with another woman in the background. Taibbi’s next list of material was removed by Twitter after being flagged by the Democratic National Committee. They include a picture of Hunter Biden smoking crack and getting his feet rubbed and a link to a Hunter Biden sex tape.

And that’s the big hubbub. Social media company removes unwanted dick pics: News at 11.

As someone who once consulted for social media companies on content moderation issues, let me tell you, the amount of eggplant-related terms of service violations that these platforms review in a given year is so voluminous that we have not yet invented an artificial intelligence machine capable of counting them.

Yet Taibbi and Musk are trying to turn this mundane moderation matter into the story of the century by emphasizing a few misconceptions about how platforms work with political campaigns and what First Amendment obligations they do or do not have. To debunk a few of them:

1. Campaigns of all ideological stripes have direct lines into social media companies and make requests about offending content. There is nothing at all strange about what is shown in these emails. If Jeb’s kid’s grundle was posted by a Chinese troll, we surely would’ve flagged that for the company in the hopes they deleted it, and I suspect their internal correspondence on the matter would’ve been identical. This would not have been a “demand” or a “dictate” from our campaign, mind you. Companies can do what they want.

2. In this specific instance, the requests came from a campaign that has absolutely no government authority at all. At the time of the correspondence in question, Joe Biden was a private citizen running for office, while Donald Trump was the president. Taibbi acknowledges that Trump’s White House made requests that “were received and honored” and that “there’s no evidence—that I’ve seen—of any government involvement in the laptop story.” So if there are any First Amendment issues at play here—and I don’t believe there are since neither Musk nor Taibbi have demonstrated that the government made any mandates on Twitter—they would, in this case, only relate to the material that Trump wanted removed.

3. Why MAGA Republicans and Elon Musk are so adamant that people be able to post photos of Hunter’s johnson is something that should probably be explored with their respective preachers or psychiatrists, but it is certainly not a matter for constitutional scholars or litigators. While Mr. Lisbon from the Virgin Suicides may derive a depraved type of happiness from publishing pictures of other people’s genitals on a private company’s public bulletin board without the approval of those pictured, the First Amendment does not bestow upon him the right to prevent the company from taking down the offending material.

To sum up what we learned: Big penis, little news, First Amendment not under threat.

Musk and Taibbi have promised more editions of the “Twitter Files” in the coming days, maybe next time they won’t come up so limp.

Tim Miller

Tim Miller is The Bulwark’s writer-at-large and the author of the best-selling book Why We Did It: A Travelogue from the Republican Road to Hell. He was previously political director for Republican Voters Against Trump and communications director for Jeb Bush 2016.