Free Speech Is Now a Crime

The FBI is bearing down. Instead of reflecting on revelations of systematic violations of Americans’ constitutional rights, the bureau is defending its actions. By treating free speech as a crime, the FBI is destroying itself.

Instead of inviting discussion of the recent “Twitter files” revelations, and engaging non-kept journalists and policy people in a real public discussion, the FBI has broken its silence and has gone into attack mode.

The bureau did not question the authenticity of any of the correspondence between former Twitter officials and the FBI. Instead, it defended the contents as illustrating normal, standard procedure.

That procedure, as described in the documents, includes warrantless collection of information against people agents indirectly acknowledged had committed no crime—but whose opinions and representations of facts, even if innocently inaccurate, could become grounds for criminal investigation and prosecution.

The Twitter files, which owner Elon Musk released in raw form to journalists and the public, show a breakdown of professionalism in the FBI so profound that the institution now considers free speech a crime.

Exhibit A: An FBI National Election Command Post “Request for Coordination with Twitter,” dated November 6, 2022, complained “tweets by certain accounts that may warrant additional action due to the accounts being used to spread misinformation about the upcoming election.”

This is a primary source internal document that Musk provided to journalist Matt Taibbi. In it, the Command Post seeks action against American citizens not for being part of a foreign intelligence operation, or even for maliciously spreading chaos but for exercising constitutionally protected speech.

In the email, the FBI sought to issue “preservation letters” against 25 Twitter accounts. Preservation letters are issued to save information before any evidence of guilt is collected. The purpose is to ensure that the information is not deleted before the government can present a search warrant, which the FBI cannot do until it has probable cause.

By the FBI’s own standards, none of its targets was committing any crime. At worst, they were suspected of spreading “misinformation.” The bureau properly defines misinformation as “false or misleading information spread mistakenly or unintentionally.”

It’s a good definition. By definition, misinformation is innocent. It isn’t a law enforcement issue. It isn’t a counterintelligence matter. It’s protected speech. No statute empowers the FBI to police free speech, however inaccurate such speech might be.

The FBI is deliberately blurring a decades-long distinction between constitutionally protected misinformation (a word rarely used until 2016), and malicious disinformation. Disinformation is the English translation of the Russian word dezinformatsiya, a Soviet term of KGB tradecraft to plant false and misleading information for the purpose of achieving operational or strategic objectives. That word, too, didn’t enter the popular American lexicon until about 2016.

The FBI knows the difference. By statute, the FBI is responsible for detecting and neutralizing foreign disinformation. Good training and discipline in years past ensured that every FBI agent and analyst knew it.

Yet the Twitter documents reveal that FBI headquarters and field offices from coast to coast have deliberately segregated inaccurate information (however the FBI judges inaccuracy), as a crime or foreign menace.

Project Veritas discovered this last October, before the Twitter revelations, revealing an internal FBI list of “election crimes.” One of those “crimes” is “misinformation” about voter fraud. In its own operational document, the FBI thus considered misinformation a crime before the November 6 National Election Command Post memo sought the warrantless searches. 

Even so, in that election crimes list—which the FBI termed a cheat sheet—the bureau properly differentiated between misinformation and disinformation. In practice, though, it blurred if not erased that distinction. The FBI opened cases against those people who, by the use of its own terminology, it knew were innocent of malice, prepping for warrantless searches for crimes not committed.

The Twitter documents are a disaster for the FBI. They show that from coast to coast and at all levels, FBI discipline and professionalism have severely broken down. The redacted email addresses and context of communications show that it isn’t the case of a few bad agents. The command post is run out of the top-heavy bureaucracy at FBI headquarters in Washington, D.C.. It coordinates with all 56 field offices nationwide. Some of the FBI agents are named in the documents. The Twitter revelations show an extensive audit trail.

The bureau has crossed far over the line from protecting the country against hostile foreign disinformation operations to violating American citizens’ constitutionally protected free speech.

Rather than address the huge document dump from Twitter, acknowledge public concerns, invite dialogue, or investigate any problems, the FBI defiantly attacked. 

After days of silence, the bureau issued a statement on Wednesday defending the content of the documents as “nothing more than examples” of ordinary procedures. Then it whipped out its “misinformation” label: “It is unfortunate that conspiracy theorists and others are feeding the American public misinformation with the sole purpose of attempting to discredit the agency.” 

That’s all it is: conspiracy theorists peddling misinformation, which, by the way, the FBI now considers a crime.

About J. Michael Waller

J. Michael Waller is senior analyst for strategy at the Center for Security Policy. He holds a Ph.D. in international security affairs at Boston University and for 13 years was the Annenberg Professor of International Communication at the Institute of World Politics.

Photo: iStock/Getty Images

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