Telegram Creator’s Arrest Makes the Supreme Court’s Murthy Ruling Look Even Worse

Moments after stepping off his private jet at Le Bourget airport outside Paris last week, tech titan Pavel Durov was arrested by French police. The Russian-born billionaire's crime, the BBC reported, stemmed from an alleged "lack of moderation" of Telegram, a cloud-based social media platform Durov owns and operates that boasts nearly one billion monthly users.

Though the arrest did not take place on US soil, George Washington University law professor said the event poses a direct threat to not just free speech in Europe, but the United States.

"This is a global effort to control speech," Turley said on Fox News, noting that European regulators have also put pressure on Elon Musk, a US citizen, to censor Americans, including presidential candidate Donald Trump, through the Digital Services Act.

While the extent to which the US government was involved in Durov's arrest is unclear, reports indicate that the FBI has for years attempted to penetrate Telegram.

In 2017 Wired reported on alleged attempts to "bribe Durov and his staff to install backdoors into its service." More recently, the New York Times reported on Durov's allegation that the FBI attempted to hire a Telegram programmer in order to help the US government breach user data.

"The FBI did not respond to a request for comment," the Times reported.

'A Refusal to Communicate'

Following the arrest of Durov, who was released on bail equivalent to some $5.5 million and is prohibited from leaving France, Time magazine reported that the event had ignited "fierce global debates about the limits of digital freedom of speech, and how much responsibility social media companies should bear over the content on their platforms."

The preliminary charges against Durov primarily stem from allegations that Telegram users are using the message platform in harmful ways, including "crime, illicit transactions, drug trafficking, and fraud."

In this sense, the prosecution's allegations may be true, but as Turley points out, criminals use all kinds of tools and technologies for illicit purposes. But it's not the practice of civilized countries to place corporate executives behind bars over crimes committed by their customers.

"It's like arresting AT&T's CEO because the mob used a telephone," Turley said.

Part of Durov's alleged crime, quite literally, was that he wasn't cooperating sufficiently with government officials, who charged him with a "refusal to communicate, at the request of competent authorities… ."

Though French President Emmanuel Macron said the arrest wasn't political and the nation remains "deeply committed" to free expression, Durov's arrest looks very much like the latest development of what Turley described as the "global effort to control speech."

European leaders have made it clear they are quite happy to censor speech they don't like, whether it's a comment about a politician's weight or criticizing immigration policy, all in the name of protecting people from hate speech, crime, or "disinformation."

Outsourcing Censorship

Americans might be inclined to shrug their shoulders and attribute this to "those crazy Europeans." But this would be a mistake.

It's apparent that many in Washington also want to censor speech and control the flow of information. Just two years ago, many will recall, the Department of Homeland Security (DHS) announced the creation of a new "Disinformation Governance Board."

"The spread of disinformation can affect border security, Americans' safety during disasters, and public trust in our democratic institutions," DHS announced at the time.

This sounds similar to the language of Věra Jourová, the vice president of European Commission for Values and Transparency, who just months prior to the EU's adoption of the Digital Services Act, during a speech at the Atlantic Council, made a case for cracking down on disinformation to protect democracy.

While the Biden Administration pulled the plug on the Disinformation Governance Board shortly after its rollout due to public uproar, it's clear that many in Washington don't begrudge the EU's censorship power; they envy it.

Fortunately for Americans - and unfortunately for federal lawmakers - the First Amendment and decades of court precedents make it much more difficult to suppress speech in the US than in Europe. Because of this, the Censorship Industrial Complex (to borrow a term from Investigative journalist Matt Taibbi) has had to get creative.

Lacking the constitutional authority to censor Americans directly, powers in Washington have, in recent years, outsourced censorship to others. In 2022, the Twitter Files exposed for the first time the government's sprawling censorship apparatus, which involved government officials leaning heavily on social media companies to get them to do the dirty work of censoring problematic information (sometimes, even when the information was true).

Indeed, just days after Durov's arrest, Meta founder and CEO Mark Zuckerberg told the House Judiciary Committee that the White House "repeatedly pressured our teams for months to censor certain COVID-19, including humor and satire."

'A Robust Anti-Trust Program'

The First Amendment, which states "Congress shall make no law…abridging the freedom of speech, or of the press," applies to the government, not private entities. But numerous Supreme Court precedents make it clear that it is unconstitutional for government agencies or officials to coerce private actors to suppress speech on their behalf.

The line between "permissible attempts to persuade and impermissible attempts to coerce" is not always clear, but it's a distinction the high court has explored in many cases in recent decades, including Bantam Books, Inc. v. Sullivan (1963), which concluded that government officials may not use the "threat of invoking legal sanctions and other means of coercion…to achieve the suppression" of disfavored speech.

That the Biden Administration crossed this line is difficult to deny. The White House's high-pressure campaign against Facebook to coerce the social media company to censor speech is well-documented.

Those efforts include veiled threats from Andy Slavitt, the White House Senior Advisor for the COVID-19 Response, who told Facebook on March 15, 2021 that the administration was not impressed with Facebook's censorship efforts and "[i]nternally we have been considering our options on what to do about it." It also includes threats that are less veiled, like when White House Press Secretary Jen Psaki was asked in May 2021 about Facebook's censorship practices, including its decision to keep former President Donald Trump off its platform. Psaki replied that it was the president's view that platforms had a responsibility to protect Americans from "untrustworthy content, disinformation, and misinformation, especially related to COVID-19, vaccinations, and elections" and that Biden also supported "a robust anti-trust program."

In other words, while Slavitt was putting immense pressure on Facebook behind the scenes to censor "untrustworthy content," the White House was publicly saying Facebook needed to more aggressively monitor and remove problematic content - and, by the way, the federal government has the power to break up your company if you don't comply.

All of this explains why Facebook, in 2021, began to remove and suppress content that ran afoul of the COVID State. Some of the content that was removed was no doubt false, of course. Some of it was simply problematic, like claims that COVID-19 might have emerged from the Wuhan Institute of Virology, something most US agencies today, including the FBI and CIA, believe is true.

What's clear is that the White House's pressure and threats had an impact on Facebook's policies. Zuckerberg, who in leaked conversations with employees in 2019 acknowledged the "existential" threat of antitrust regulators, admits he caved under the White House's coercion, something he today regrets.

"I believe the government pressure was wrong, and I regret that we were not more outspoken about it," Zuckerberg wrote in an August 26 letter to House Judiciary Chairman Jim Jordan. "I also think we made some choices that, with the benefit of hindsight and new information, we wouldn't make today."

'Not a Message This Court Should Send'

In June, in Murthy v Missouri, the Supreme Court had the opportunity to address what the US District Court for the Western District of Louisiana described as "a far-reaching and widespread censorship campaign" by federal officials.

Sadly, the high court punted on the matter, arguing that the plaintiffs of the case lacked legal standing.

"We begin - and end - with standing," Justice Amy Coney Barrett wrote in the majority opinion. "At this stage, neither the individual nor the state plaintiffs have established standing to seek an injunction against any defendant. We therefore lack jurisdiction to reach the merits of the dispute."

Among those who lacked standing, according to Barrett, was Jill Hines, a healthcare activist who advocates that people have the right to say no to medical procedures. Hines, the co-director of Health Freedom Louisiana, a group opposed to mask and vaccine mandates, had her Facebook page suppressed during the pandemic. Barrett stated that Hines had the strongest case for standing, but had failed to demonstrate that the restrictions against her "are likely traceable to the White House and the CDC."

Not all justices agreed.

In his dissenting opinion, which was joined by Justices Clarence Thomas and Neil Gorsuch, Justice Samuel Alito argued the evidence of the case "was more than sufficient to establish Hines's standing."

Standing aside, Alito warned that by shirking its responsibility to hold government actors accountable for their coercive efforts to pressure private entities into censoring information on their behalf, the high court was sending a dangerous signal to those in power attempting to control and suppress political speech.

"Officials who read today's decision…will get the message," Alito wrote. "If a coercive campaign is carried out with enough sophistication, it may get by. That is not a message this Court should send."

'The Indispensable Right'?

The extent to which Pavel Durov's arrest stems from the involvement of any US agency or official is unclear. But it could be the latest example of what Turley describes as censorship by surrogate.

US agencies and officials cannot legally censor users themselves, but they can get others to do their dirty work for them. We know today that the FBI was deeply involved in efforts to control the flow of information on Twitter, as well as Facebook. This is an obvious example of censorship by surrogate, but leaning on social media companies is hardly the only method US officials have at their disposal to control or suppress speech.

US officials can lean on advertisers and ad organizations - like the Global Alliance for Responsible Media, an initiative run by the World Federation of Advertisers that was abruptly shutdown after Elon Musk sued it over alleged antitrust activities. And they can lean on other governments - and they probably are.

It would be naive to believe that Macron arrested Durov without at least the blessing of US officials, who had taken a deep interest in both the Russian billionaire and Telegram. Nor is Durov the only person being targeted by those behind the global effort to control speech. Elon Musk, who bought Twitter (now rebranded as X) and exposed the FBI's shenanigans there, has become a target in not just the EU but also Brazil, where the social media platform is reportedly under the risk of being deplatformed.

"The question for Americans is whether we're going to allow these global censors to basically control speech from Europe," says Turley, author of The Indispensable Right: Free Speech in an Age of Rage.

All of this censorship, of course, is taking place in the name of some "greater good." Indeed, it's not uncommon for those most loudly supporting censorship to do so in the name of protecting democracy. But as I've pointed out, democracy without free speech is like a picnic without food. It's not pointless, but a charade.

The whole point of a constitutional system is to protect the rights of individuals, and when governments themselves become the primary transgressors of these rights, you no longer have a benevolent government; you have a tyrannical one. And free speech is arguably the most fundamental of these rights.

"If the freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter," George Washington famously said in "The Newburgh Address."

The Supreme Court had an opportunity to put some of the bad government actors in place in Murthy v Missouri, a case that clearly showed government officials coercing private companies to censor information on their behalf, which Justice Alito described as "blatantly unconstitutional."

The United States may come "to regret the Court's failure to say so," Alito observed, and he might be right.

The right to free speech is indeed indispensable, but it appears that those who believe otherwise may have already found bigger fish than Facebook and X to act as their censorship surrogates - and perhaps more stringent methods.

If you doubt this, just ask Pavel Durov, who in 2014 fled Russia after the Kremlin "tightened its grip over the Internet" - only to find himself a prisoner in the West a decade later.

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