Disclaimer: I’m not a lawyer

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.

  1. Can a tweet declare war
  2. What law would you be breaking by taking it down?
  3. Wet ink & world war 1
  4. 1st amendment precedents are weakening
  5. Is the TOS a defense?
  6. Can/should twitter prevent violent speech by heads of state
  7. Platform risk
  8. Notes

Can a tweet declare war

‘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.

What law would you be breaking by taking 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’.

Wet ink & world war 1

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 this1.

In asking congress to pass the act, Wilson said that press censorship was ‘absolutely necessary to the public safety’2, 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:

May god have mercy on them, for they need expect none from an outraged people and an avenging government

Gregory convinced Wilson to support vigilante groups3 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:

there are citizens of the United States, born under other flags, … who have poured the poison of disloyalty into the very arteries of our national life. … [such] disloyalty … must be crushed4

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.

1st amendment precedents are weakening

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.

Is the TOS a defense?

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.

Can/should twitter prevent violent speech by heads of state

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 let these world-changing debates move to another short text platform.

In their world leaders on twitter post they said:

Blocking a world leader from Twitter or removing their controversial Tweets would hide important information people should be able to see and debate. It would also not silence that leader, but it would certainly hamper necessary discussion around their words and actions.

This is half right. Twitter’s value prop as a news source is that it’s a primary and a secondary source at the same time; you can use your follow graph to tailor what version of the news you get, but for most major events, someone involved with the event will be doing some of the narration, and voices from all sides of the debate will be participating. When twitter creates compelling conversations that start to look like debates, this is self-generating journalism.

The missing piece is the line between enabling debate and enabling follower networks. If the argument is ‘banning political violence hurts twitter without hindering violence’, I don’t agree. Unless you’re a spy, you shouldn’t participate in anything you consider to be evil (paraphrasing Gandhi).

This isn’t a case of twitter saying ‘free speech is a higher good than opposing violence’, which is a statement that is worth debate. Or ‘we’re not the judge, if you want something taken down go to court’. They’re saying, more or less, ‘we don’t allow violence unless kicking you off our platform would cause an exodus to Gab’. And maybe that’s a moral argument too, but it’s a weaker one.

Platform risk

I’m interested in this hypothetical for two reasons:

First, the free speech implications. This scenario is far-fetched, but not as far-fetched as it would have been 20 years ago. And a criminal prosecution of a social platform for taking down a head-of-state tweet, if the platform lost the case, would further erode speech rights that are already under new attack by tech-un-savvy courts.

Second, the platform risk. It really sucks to not own your distribution! Heads of state have joined the club of content owners who can’t properly monetize or compete because your videos are free on youtube and your subscriber list is being mined by facebook. One potential positive outcome of this prosecution would be to clarify what platforms are allowed to censor. I think platforms have seen both sides of this issue and have no ideals left, feel let down by the legislature, and would welcome a clear line from the judiciary on what they can / can’t / must take down.


  1. Perilous Times (Geoffrey Stone), p138 

  2. Stone p149 

  3. Stone, p156 

  4. Stone, p140