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1 year ago

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constitutional law first amendment social media

Twitter war continues
By Terry A. Hurlbut
Today marked two big actions in the Twitter War, which now has gone to the platform’s staff and bank account. Promptly at 9:00 a.m. Pacific Time, the layoffs began. Most people guess that Elon Musk will fire half the company before he finishes. On the other hand, at least four major brands stopped advertising on the platform, specifically citing Elon’s takeover. Musk himself seems to be striking a defiant attitude, but his actions this week have often been contradictory. And Andrew Torba at Gab Social waits to see whether Twitter will collapse.
The Twitter layoffs
The latest Twitter news comes from The Guardian, NPR, CNN, and PBS Newshour. Layoff notices went out beginning when the company’s San Francisco headquarters opened. Many are asking what sort of provocation might have prompted Musk to act. But in fact, Musk has promised to cut up to 75 percent of the labor force. Most watchers expect him to cut the labor force by 50 percent.
Employees got one of two types of notice, depending on whether they still had a job or not. This tweet has images of the notices:
https://twitter.com/gchahal/status/1588648698623692801
The termination notice tells the employee that he no longer may enter the company premises. But laid-off staff will remain on the payroll through February 2, 2023. This casts serious doubt on the merits of a lawsuit four California employees filed in the U.S. District Court for the Northern District of California, San Francisco Division.
https://twitter.com/stiles/status/1588590544389046272
The suit alleges that Musk is firing people en masse without notice, in breach of the Worker Adjustment and Retraining Notification (WARN) Act. But their remaining on the payroll, even though they are not allowed on company premises anymore, weakens their case.
https://twitter.com/elonmusk/status/1588671155766194176
During this time, you will be on a Non-working Notice period and your access to Twitter systems will be deactivated.
While you are not expected to work during the Non-working Notice period, you are still required to comply with all company policies, including the Employee Playbook and Code of Conduct.
What does “non-working notice” mean?
The “Non-working Notice” seems to be an Elon Muskian innovation. The personnel experts at BrightHR describe the obligations of one leaving voluntarily to “work their notice.” In that discussion they describe Payment In Lieu Of Notice. That allows the employer to let the employee go immediately, so long as the employer “pays the notice.” This would appear to be what Elon Musk has decided to do. He can afford to pay them for the sixty days the WARN Act requires. But he does not want them on the premises or to have moderational or administrative access to the platforms.
And that, more than how long they have to find other jobs, is what really upsets laid-off staff. Here is a typical example:
https://twitter.com/ShannonRSingh/status/1588591603622772736
In addition to “human rights,” other teams that have lost all or most of their staff include (without limitation):
• Curation (tasked with promoting information the team considers most reliable)
• Ethical AI and machine learning
• Marketing and communication
• Search
• Public policy
• Wellness
Employees who had not lost their jobs, received a different notice, which read in part:
Please note that until Monday, Birdhouse is temporarily offline, our office buildings are temporarily closed, and all badge access is temporarily suspended. Offices will reopen Monday, Nov. 7th.
This suggests that the possibility of cybernetic “Parthian shots” concerns Elon. That would also explain his “Non-working Notice” period for the laid-off. At least one user showed some understanding:
https://twitter.com/Gardener196/status/1588669245818572800
Reaction from outside
Outside activists expressed concern that Elon Musk was reneging on certain promises they allege he made to them:
He promised to retain and enforce the election-integrity measures that were on Twitter's books before his takeover. With today's mass layoffs, it is clear that his actions betray his words.
Jessica González, CEO, Free Press (part of #StopToxicTwitter coalition)
She also made one statement CNAV finds difficult to believe:
Twitter was already a hellscape before Musk took over. His actions in the past week will only make it worse.
Tell that to absolutely every conservative commentator who lost one or more accounts. Start with Rep. Marjorie Taylor Greene (R-Ga.).
Four major brands “paused” or terminated all advertising on Twitter:
• Volkswagen (includes Audi)
• General Motors
• General Mills
• Pfizer Pharmaceuticals
Revenue has suffered, and that prompted Elon Musk to send this message:
https://twitter.com/elonmusk/status/1588538640401018880
With regard to moderation, Musk insists that moderational policies remain unchanged.
https://twitter.com/elonmusk/status/1588666105023041536
Actually, that’s Andrew Torba’s problem with Twitter. On his Telegram channel, he said:
Lesson: don’t appease the “activists.”
On the other hand, Musk polled his followers on whether advertisers should support freedom of speech or “political correctness.” 78.3 percent of users voted for freedom of speech.
https://twitter.com/elonmusk/status/1587899771091566595
This could reflect the huffy departure of left-leaning users. But it more likely reflects a silent majority breaking their silence.
About that Twitter moderation
Jennifer González wasn’t through expressing concern about moderation on Twitter:
When you lay off reportedly 50 percent of your staff — including teams who are in charge of actually tracking, monitoring and enforcing content moderation and rules — that necessarily means that content moderation has changed. He cannot enforce content moderation if he doesn’t have the staff to do so. AI alone cannot solve this problem.
Andrew Torba hasn’t commented. But CNAV will guess that he would read the above and say, “Good! Moderation is censorship!”
And what Ms. González has not addressed, is the report by The Intercept that Twitter took government instruction for censorship. (So did Facebook, and they’re probably still taking instruction.) That kind of relationship is flatly illegal, as Justice Clarence Thomas specifically said. (Biden v. Knight First Amendment Inst. At Columbia Univ., Docket 20-197, slip op., Justice Clarence Thomas concurring.)
The platform can’t do that
Although a “private entity is not ordinarily constrained by the First Amendment,” Halleck, 587 U. S., at ___, ___ (slip op., at 6, 9), it is if the government coerces or induces it to take action the government itself would not be permitted to do, such as censor expression of a lawful viewpoint.… The government cannot accomplish through threats of adverse government action what the Constitution prohibits it from doing directly. See ibid.; Blum v. Yaretsky, 457 U. S. 991, 1004–1005 (1982). Under this doctrine, plaintiffs might have colorable claims against a digital platform if it took adverse action against them in response to government threats.
Therefore, Ms. González should take heed. She is demanding that Twitter do something the law tells it not to do. Absolutely anyone whom Twitter has thrown off its platform because the government didn’t like what he said, could sue.
Where this war goes from here, is far from clear. Already Elon Musk has certain people not only admitting but avowing that they made Twitter a censored, biased platform. And they wanted to keep it that way. No wonder Musk locked them out of the buildings and servers. But he might now need to recruit an entirely new set of advertisers. As Lauren Witzke now urges him to do.
Sure, you may lose Pfizer as an advertiser. But there will be hundreds of patriotic businesses ready to fill their slots.
Link to:
The article:
https://cnav.news/2022/11/05/accountability/news-media/twitter-war-continues/