Trump supporters cycled through increasingly desperate explanations for why the Jimmy Kimmel situation was totally legitimate. First came the absurd “low ratings” defense—because sure, networks routinely cancel shows minutes before taping due to sudden ratings revelations and just hours after the chair of the FCC threatens them with “we can do this the easy way or the hard way.” And also, if it was low ratings, how do you explain why they brought the show back after less than a week? When that collapsed under basic scrutiny, they pivoted to something even more dishonest: claiming Brendan Carr’s explicit threats to Disney are somehow identical to what the Biden administration did, and falsely claiming this makes hypocrites of those who agreed with the ruling in Murthy v. Missouri.
This false equivalency isn’t just wrong—it’s embarrassingly so. But since MAGA supporters are now running with it (and some mainstream outlets are credulously repeating it), it’s worth demolishing the argument piece by piece. Of course, the people pushing this narrative won’t bother with the details and will immediately skip to the comments to shout “you lie!” without addressing the actual points raised here as to why they’re wrong, but for everyone else, let’s dig in.
You can see some of this nonsense in a NY Times article over the weekend by Peter Baker, in which a White House spokesperson claimed (falsely) that (1) Trump supported free speech, and (2) Biden censored social media:
Asked about the disparate justifications offered by Mr. Trump and administration officials, Abigail Jackson, a White House spokeswoman, said, “President Trump is a strong supporter of free speech, and he is right — F.C.C. licensed stations have long been required to follow basic standards.” She added that “the Biden administration actually attacked free speech by demanding social media companies take Americans’ posts down.”
Vice President JD Vance likewise pointed to allegations of censorship lodged against President Joseph R. Biden Jr. to defend the Trump administration’s actions. “The bellyaching from the left over ‘free speech’ after the Biden years fools precisely no one,”he wrote on social mediaon Friday.
That NY Times article was even worse originally, as there was a quote from so-called “presidential historian” Craig Shirley claiming (falsely) that “President Biden” forced social media companies to deplatform Donald Trump in 2021:
It says something about Trump’s all-out war on free speech that the New York Times couldn’t find a more credible person than “presidential historian” Craig Shirley to defend it. www.nytimes.com/2025/09/21/u…
Craig Shirley, a presidential historian and biographer of President Ronald Reagan, said Mr. Trump’s experience was so searing that he did not believe the president would improperly restrain others’ free speech, whatever his public exhortations.
“We all especially know Biden used government to censor Trump, kicking him off many media platforms, a clear violation of the law,” Mr. Shirley said. “As his own First Amendment rights were abridged, my guess is he’s especially sensitive to anyone else seeing their First Amendment rights taken away.”
Except that’s just factually wrong, as even a basic understanding of linear time (let alone a simple fact check) would have determined. Donald Trump was banned from most platforms on January 7th and 8th in 2021. When DONALD TRUMP WAS PRESIDENT, not Joe Biden. It was literally impossible for Biden to “censor Trump” at the time. Indeed, when it happened we wrote an article about why this clearly was not censorship, but a difficult choice private companies had to make about encouraging safety. You know, like how the MAGA crowd is now demanding that platforms silence anyone who speaks ill of Charlie Kirk.
The Times later quietly removed the first half of Shirley’s quote without noting the correction—a telling admission that even they recognized how factually bankrupt it was. Beyond the basic chronological impossibility, the entire premise is absurd: Trump was deplatformed by private companies exercising their own editorial judgment in the days after he had actively encouraged the storming of the US Capitol in an effort to prevent the peaceful handover of power… not government coercion.
That said, this idea that Biden “censored” people on social media keeps making the rounds, and in particular some have been arguing that the Supreme Court said that this was okay in Murthy vs. Missouri, and are then claiming that people who supported the administration in that case have nothing to complain about. Here are a few examples:
All three of those tweets are just factually incorrect in embarrassing ways. Many people have pointed out to them in the replies (correctly) that the Supreme Court’s ruling in Murthy was about standing, not the merits, but that’s not even what’s so egregious here.
The more important thing is the reason why the Murthy ruling was about standing, which was that the Supreme Court correctly found that none of the plaintiffs in the original case presented enough evidence to suggest they have standing to challenge the administration’s actions. Five times in the ruling, Justice Amy Coney Barrett mentions “no evidence.”
The clear implication, which all these people pointing to Murthy are missing, is that if they had actual evidence of coercion by government officials then they would have had standing. Nothing (literally nothing) in the Murthy case “blesses” or “supports” the idea that it’s okay for government officials to coerce intermediaries into silencing speech. It just says you can’t just claim that happened without any evidence to back it up.
At no point did the ruling condone government pressure on intermediaries to silence speech. Quite the contrary. Rather, the ruling in Murthy (and also confirmed a few weeks earlier in the Vullo ruling, which was heard on the same day as Murthy, so clearly both issues were on the Justices’ minds) was:
No, the government cannot coerceintermediaries to suppress speech that is protected by the First Amendment
But if an intermediary suppresses your speech as a private entity, to have standing, you need to show that it was actually in response to government pressure and you can’t just handwave that away.
To understand this, it really helps to read Vullo and Murthy together (again, remembering that the two cases were effectively heard together). We quoted from Vullo a lot in our first post, but as a refresher, from the opinion:
A government official can share her views freely and criticize particular beliefs, and she can do so forcefully in the hopes of persuading others to follow her lead. In doing so, she can rely on the merits and force of her ideas, the strength of her convictions, and her ability to inspire others.What she cannot do, however, is use the power of the State to punish or suppress disfavored expression….
This is the core distinction that bad faith readers of what happened keep ignoring. There is a fundamental difference between using the bully pulpit to persuade and using the power of the government with threats to punish in a manner that is coercive.
The Supreme Court in Vullo and Murthy made it clear that government coercion is not allowed. The people claiming Murthy said otherwise either didn’t read or understand Murthy, or they’re bad faith liars.
While the Murthy ruling rejected the plaintiffs’ claims, at no point did it say it made it okay for government actors to make coercive threats. It said the opposite. Indeed, contrary to the various tweets saying Murthy blessed what Carr was doing, it says that if you can show actual coercion from a specific government actor, then you have standing to make a case. From the majority decision:
But we must confirm that each Government defendant continues to engage in the challenged conduct, which is “coercion” and “significant encouragement,” not mere “communication.”
Carr’s actions provide a textbook example of the coercion that Murthy and Vullo prohibit. He went on a podcast, explicitly threatened a media company with regulatory retaliation (“we can do this the easy way or the hard way”), and hours later that company folded. The “traceability” that the Murthy court said was missing from the Biden administration’s communications? Here it’s a straight line drawn in neon by Carr in public with him yelling to the cameras “I AM ENGAGING IN COERCIVE ACTIVITY.”
This failure to establish traceability for past harms— which can serve as evidence of expected future harm—“substantially undermines [the plaintiffs’] standing theory.”
But here there’s very clear “traceability.” Carr went on a MAGA influencer’s podcast in the morning, said “we can do this the easy way or the hard way,” and specifically said that the FCC would investigate both Disney and affiliates if they didn’t take action over Kimmel’s First Amendment protected speech. Under Murthy that very much violates the First Amendment, not the other way around.
And this is only reinforced by the ruling in Vullo, which was more explicit:
The Court explained that the First Amendment prohibits government officials from relying on the “threat of invoking legal sanctions and other means of coercion . . . to achieve the suppression” of disfavored speech.
So people trying to argue that Murthy made this okay, or even that people who supported Murthy are now regretting it, are simply ignorant or lying. Neither is a good look for professional commentators.
Murthy (and Vullo) supported the long-held understanding that, under the First Amendment, government actors cannot threaten intermediaries in a coercive manner to get them to suppress or punish protected speech. Carr did threaten intermediaries to punish such speech, and thus it is entirely consistent with the ruling in Murthy that he violated the First Amendment.
Among the attempts to create hagiographic eulogies of Charlie Kirk, I’ve seen more than a few people suggest that Kirk should be respected for being willing to talk to “those who disagree with him” as a sign that he was engaging in good faith. Perhaps the perfect example of this is Ezra Klein’s silly eulogy claiming that Kirk was “practicing politics the right way” because he would debate students who disagreed with him.
Kirk was practicing politics in exactly the right way. He was showing up to campuses and talking with anyone who would talk to him. He was one of the era’s most effective practitioners of persuasion.
There are many problems with this statement, but Klein’s fundamental error reveals something much more dangerous: he’s mistaking performance for discourse, spectacle for persuasion. Kirk wasn’t showing up to campuses to “talk with anyone who would talk to him.” He was showing up armed with a string of logical fallacies, nonsense talking points, and gotcha questions specifically designed to enrage inexperienced college students so he could generate viral social media clips of himself “owning the libs.”
Klein is eulogizing not a practitioner of good-faith political discourse, but one of the most successful architects of “debate me bro” culture—a particularly toxic form of intellectual harassment that has become endemic to our political discourse. And by praising Kirk as practicing “politics the right way,” Klein is inadvertently endorsing a grift that actively undermines the kind of thoughtful engagement our democracy desperately needs.
The “debate me bro” playbook is simple and effective: demand that serious people engage with your conspiracy theories or extremist talking points. If they decline, cry “censorship!” and claim they’re “afraid of the truth.” If they accept, turn the interaction into a performance designed to generate viral clips and false legitimacy. It’s a heads-I-win-tails-you-lose proposition that has nothing to do with genuine intellectual discourse.
The fundamental issue with “debate me bro” culture isn’t just that it’s obnoxious, it’s that it creates a false equivalence between good-faith expertise and bad-faith trolling. When you agree to debate someone pushing long-debunked conspiracy theories or openly hateful ideologies, you’re implicitly suggesting that their position deserves equal consideration alongside established facts and expert analysis.
This is exactly backwards from how the actual “marketplace of ideas” is supposed to work. Ideas don’t deserve platforms simply because someone is willing to argue for them loudly. They earn legitimacy through evidence, peer review, and sustained engagement with reality. Many of the ideas promoted in these viral “debates” have already been thoroughly debunked and rejected by that marketplace—but the “debate me bro” format resurrects them as if they’re still worth serious consideration.
Perhaps most insidiously, these aren’t actually debates at all. They’re performances designed to generate specific emotional reactions for viral distribution. Participants aren’t trying to persuade anyone or genuinely engage with opposing viewpoints. They’re trying to create moments that will get clipped, shared, and monetized across social media.
Kirk perfected this grift. As a recent detailed analysis of one of Kirk’s debates demonstrates, when a student showed up prepared with nuanced, well-researched arguments, Kirk immediately tried pivoting to culture war talking points and deflection tactics. When debaters tried to use Kirk’s own standards against him, he shifted subjects entirely. The goal was never understanding or persuasion—it was generating content for social media distribution.
And, of course, this broader “debate me bro” culture has become so commonplace and expected online that it has now been fully industrialized into content farming.
The most toxic evolution of this grift is Jubilee Media’s “Surrounded” series on YouTube (on which Kirk once appeared, because of course he did), which The New Yorker’s Brady Brickner-Wood aptly describes as an attempt to “anthropomorphize the internet, turning incendiary discourse into live-action role-play.” The format is simple: put one public figure in a room with 20 ideologically opposed people and let them duke it out in rapid-fire rounds designed for maximum conflict and viral potential.
As Brickner-Wood notes, these aren’t actual debates in the classical sense of trying to persuade, they’re spectacles designed to set up bad faith dipshits with the opportunity to dunk on others for social media clout.
“Surrounded” videos are a dizzying and bewildering watch, as gruelling as they are compelling. The participants who fare best seem to be familiar with the conventions of interscholastic debate, spouting off statistics and logic puzzles with the alacrity of an extemporaneous-speaking champion. To win an argument in such a condensed amount of time, debaters attempt to short-circuit their opponent’s claim as swiftly and harshly as possible, treating their few minutes of airtime as a domination game rather than, say, a path toward truth or understanding.The goal here is not to inform or educate, to listen or process, to build or intellectualize but to win, to own, to dunk on, to break the opponent’s brain, to spawn an argument of such devastating definitiveness that the matter can be considered, once and for all, closed. Wave the flag, run the clock out—next.
But Surrounded is just the most recent manifestation of a much older problem. We’ve seen multiple bad faith trolls, beyond just Kirk, turn the “debate me bro” model into large media empires. When people point out their bad faith nonsense, we’re told “what are you complaining about, they’re doing things the ‘right way’ by debating with those they disagree with.”
There are, of course, times and places where actual debates can be valuable. I’ve been involved in many debates over the years with people who vehemently disagreed with me. But I think it’s important for people to recognize that, in the same way not all information is equally valuable, not all debates are equally productive.
There’s nothing in how Charlie Kirk “debated” that aimed to get at nuances or understanding. They were entirely designed to seek to humiliate his opponent. They’re full of red herrings, lies, and attempts to deflect from any actual logic, as the video link above showed.
The point is not about getting to any level of understanding. It’s to try to quip and dunk in the manner most likely to go viral when shared on social media in 20-second snippets.
The format actively discourages the kind of thoughtful, nuanced discussion that might actually change minds—the kind actually designed for persuasion. Instead, it rewards the most inflammatory takes, the most emotionally manipulative tactics, and the most viral-ready soundbites. Anyone going into these situations with good faith gets steamrolled by participants who understand they’re playing a different game entirely.
When trolls demand debates, they’re not interested in having their minds changed or genuinely testing their ideas. They want one of two outcomes: either you decline and they get to claim victory by default, or you accept and they get to use your credibility to legitimize their nonsense while farming viral moments.
None of this means we should avoid authentically engaging with different viewpoints or challenging ideas. But there’s a crucial difference between good-faith intellectual engagement and feeding trolls who are just looking for their next viral moment.
Real intellectual discourse happens in contexts where participants are genuinely interested in truth-seeking rather than performance. It requires shared standards of evidence, mutual respect, and actual expertise on the topics being discussed. It takes time, nuance, and careful consideration—all things that are antithetical to the “debate me bro” format.
Klein’s eulogy of Kirk represents a broader failure to understand what’s happening to our discourse. When we praise bad-faith performers for “engaging” with their critics, we’re not celebrating democratic norms—we’re rewarding those who exploit them.
Two bits of news came out of the letter Mark Zuckerberg sent to Rep. Jim Jordan this week (and how people responded to it), neither of which are what you’re likely to have heard about. First, Donald Trump seems to be accusing himself of rigging the 2020 election against himself.
And, second, Mark Zuckerberg has absolutely no spine when it comes to Republican pressure on Meta’s moderation practices. He falsely plays into their fundamentally misleading framing, all to win some temporary political favors by immediately caving to pressure from the GOP.
You may have seen a bunch of headlines in the past couple of days claiming that Mark Zuckerberg “admitted” that the Biden White House pressured him about “censoring” content and he wished he’d stood up to them more. It got plenty of coverage. Unfortunately, almost none of that coverage is accurately reporting what happened, what’s new, and what was actually said.
The reality is pretty straightforward: Mark Zuckerberg folded like a cheap card table, facing coercive pressure from Rep. Jim Jordan to modify Meta’s moderation practices. What he says misleadingly plays into Jordan’s mendaciously misleading campaign. In short, Zuckerberg’s claim that he would stand up to government pressure on moderation is undermined by the fact that he’s revealing this literally while caving to government pressure on moderation.
First, it’s necessary to understand the history. It’s no secret that the White House sought to persuade social media companies to adjust their content moderation practices. They said so publicly. Hell, there was just a big, giant, massive Supreme Court case about that, where the details of government requests to social media were on full display.
But, as the Supreme Court Justices themselves made clear during the oral arguments, the White House reaching out to media providers and trying to persuade them on editorial decisions is nothing new, nor is it problematic. The only thing that matters is if the government uses coercive techniques, in which it threatened the company or punished the company if it failed to comply.
Justices Kavanaugh and Kagan were talking about this during the oral arguments:
JUSTICE KAVANAUGH: You’re speaking on behalf of the United States. Again, my experience is the United States, in all its manifestations, has regular communications with the media to talk about things they don’t like or don’t want to see or are complaining about factual inaccuracies.
[….]
JUSTICE KAGAN: I mean, can I just understand because it seems like an extremely expansive argument, I must say, encouraging people basically to suppress their own speech. So, like Justice Kavanaugh, I’ve had some experience encouraging press to suppress their own speech.
You just wrote about editorial. Here are the five reasons you shouldn’t write another one. You just wrote a story that’s filled with factual errors. Here are the 10 reasons why you shouldn’t do that again.
I mean, this happens literally thousands of times a day in the federal government.
And just the fact that the Supreme Court did not see any evidence of this being coercive should say something.
Nothing in what Zuckerberg said changes any of that. He simply repeats what was already known and already public: that, yes, White House officials sought to persuade Meta in how it handled some moderation elements. Much of that pressure was public, and even the pressure that was private has been revealed before.
Remember, Jim Jordan has spent the last couple of years weaponizing the House Judiciary Committee to misleadingly claim that the government was “weaponized” to suppress conservative speech. He’s sent dozens upon dozens of subpoenas, almost all of which misleadingly demand responses or data based on his false belief that basic, fundamental trust & safety work is somehow an attack on free speech rights.
But make no mistake about Jordan’s end goal here: it is to prevent websites from ever doing anything to try to counter the spread of disinformation. We’re not even talking about removing or blocking content. He doesn’t want there to be any effort to fact check or debunk nonsense. And that’s because the party that he is a part of is the largest producer and purveyor of complete and utter bullshit. And having people point that out is seen as an attack.
So Jordan has framed any attempt to refute nonsense as “an attack on free speech.” Tragically, much of the media (and plenty of tech execs) have fallen into this trap and accepted Jordan’s framing.
Finally, that brings us to Zuckerberg’s letter from this week. In it, he admits (again) what has been widely known and widely reported on, and was central to the Murthy v. Missouri Supreme Court case: that some people in the White House sought to persuade Meta to take Covid misinfo more seriously.
In 2021, senior officials from the Biden Administration, including the White House, repeatedly pressured our teams for months to censor certain COVID-19 content, including humor and satire, and expressed a lot of frustration with our teams when we didn’t agree. Ultimately, it was our decision whether or not to take content down, and we own our decisions, including COVID-19-related changes we made to our enforcement in the wake of this pressure. I believe the government pressure was wrong, and I regret that we were not more outspoken about it. I also think we made some choices that, with the benefit of hindsight and new information, we wouldn’t make today. Like I said to our teams at the time, I feel strongly that we should not compromise our content standards due to pressure from any Administration in either direction and we’re ready to push back if something like this happens again.
So what is actually revealed here? Literally nothing new at all. It was already widely reported that the White House tried to persuade Meta to be more responsive. And there were reasons for this. People were dying from Covid, and internal documents show that Zuckerberg himself was hoping that Facebook would be helpful in getting people vaccinated. But the platform was being bombarded with conspiracy theories, lies, and nonsense that was misleading people into putting lives at risk.
So, yes, of course the White House would reach out to Meta and suggest that the platform should do better in stopping the flood of misleading, dangerous info. None of that should be revelatory or even noteworthy.
And if you read what Zuckerberg says here, he still says that they didn’t do anything because of pressure from the White House: “Ultimately, it was our decision whether or not to take content down, and we own our decision, including COVID-19-related changes we made to our enforcement…”
But then he says, “I believe the government pressure was wrong, and I regret that we were not more outspoken about it.”
And what does that even mean? First of all, Meta was pretty fucking outspoken. When Joe Biden accused Meta of “killing people,” Meta went all out in calling that claim crazy. They said that the Biden administration was “looking for scapegoats for missing their vaccine goals” and “we will not be distracted by accusations which aren’t supported by the facts.”
So, what’s new here? It was widely known that the White House wanted Meta to be more responsible about Covid and vaccine misinfo. They said so publicly and privately. The private emails were widely reported on and subject to a landmark Supreme Court case that was just decided less than two months ago. None of that is new.
Zuckerberg also says that they made their own decisions and it wasn’t due to White House pressure, which confirms what was said during the Supreme Court case.
The only “new” thing here is Zuck suggesting he regrets not being more aggressive in… what…? In making sure more people saw misinformation that might lead them to make bad decisions and get sick and possibly die? And again, it’s not even that Meta didn’t push back. They pushed back hard.
And yet, Jim Jordan and the House Judiciary are claiming that this was some big revelation:
So, again, neither of the first two points are new or even meaningful. It was public knowledge that the White House spoke to Meta. And, of course Meta moderated (not censored) the speech of Americans, because those Americans violated Meta’s policies. And, as a private entity, they’re free to do that. That’s American freedom, something Jim Jordan seems unable to comprehend.
Regarding the Hunter Biden laptop story, that’s the next paragraph of Zuckerberg’s letter:
In a separate situation, the FBI warned us about a potential Russian disinformation operation about the Biden family and Burisma in the lead up to the 2020 election. That fall, when we saw a New York Post story reporting on corruption allegations involving then-Democratic presidential nominee Joe Biden’s family, we sent that story to fact-checkers for review and temporarily demoted it while waiting for a reply. It’s since been made clear that the reporting was not Russian disinformation, and in retrospect, we shouldn’t have demoted the story. We’ve changed our policies and processes to make sure this doesn’t happen again for instance, we no longer temporarily demote things in the U.S. while waiting for fact-checkers.
Again, literally nothing in this is new. All of this was known at the time. Indeed, Meta admitted it at the time and admitted that it had probably been too quick to limit the spread of the story (just as Twitter had done, admitting the very next day that the policy was a bad one and needed to change). We’ve covered all this in great detail before.
Furthermore, Zuckerberg said this exact same thing on Joe Rogan two years ago. This also led people to falsely claim that he admitted that they blocked the spreading of that NY Post story due to pressure from the White House, even though he said no such thing.
Both times, he said that the FBI gave general warnings about “hack and leak” operations that the Russians were working on, which is no surprise given that the Russians did exactly that during the 2016 election in releasing the DNC emails. The FBI (unsurprisingly!) also said that there were a number of potential targets, including Hunter Biden. And that was also obvious. Anyone in the President’s family and political circle would be obvious targets. At no point has anyone suggested that the FBI said that they should suppress this particular story.
And, remember, the original Hunter Biden story was weakly sourced. Multiple news organizations, including Fox News, had turned down the story. That was because there were all sorts of questions about its legitimacy. And given what had happened in the past, it seemed wise to be cautious.
Indeed, these days Republicans seem oddly quiet about news organizations still holding back on reporting on the documents that were hacked from top Republicans like Roger Stone by the Iranians in this election cycle. Is Jim Jordan going to accuse companies of illegally interfering in the election because they won’t publish those documents that are embarrassing to Trump? Why the silence Jim? Oh right.
Even more to the point, at the time of that NY Post story, the Trump administration was in charge. It was October of 2020, a month before the 2020 election. So, this “truth” from Donald Trump is absolutely insane, because he appears to be accusing himself of “rigging” the election against himself:
If you can’t see that, it’s Donald Trump posting on Truth Social:
“Zuckerberg admits that the White House pushed to SUPPRESS HUNTER BIDEN LAPTOP STORY (& much more!). IN OTHER WORDS, THE 2020 PRESIDENTIAL ELECTION WAS RIGGED. FoxNews, New York Post, Rep. Laurel Lee, House Judiciary Committee.
Again, that is Trump saying “the White House” in 2020 “rigged” the Presidential election. So far, the only reporter I’ve seen call this out is Philip Bump at the Washington Post. This is Trump being so confused, he’s accusing himself of rigging the election.
Finally, Zuckerberg’s letter concludes with even more nonsense.
Apart from content moderation, I want to address the contributions I made during the last presidential cycle to support electoral infrastructure. The idea here was to make sure local election jurisdictions across the country had the resources they needed to help people vote safely during a global pandemic. I made these contributions through the Chan Zuckerberg Initiative. They were designed to be non-partisan spread across urban, rural, and suburban communities. Still, despite the analyses I’ve seen showing otherwise, I know that some people believe this work benefited one party over the other. My goal is to be neutral and not play a role one way or another or to even appear to be playing a role. So I don’t plan on making a similar contribution this cycle.
Why is he even bringing up his personal donations if this is about Meta? And, furthermore, is he really saying that he won’t do any more donations simply because “some people believe” that donations for safe voting benefit one party or another?
This is the most spineless response to a mendacious, targeted campaign by a politician who is weaponizing the power of the government to pressure a media company over its editorial policies. And Zuck folds like a cheap card table. And it’s doubly ironic, because part of that folding is claiming he won’t fold again (something he didn’t even do in the first place, but is doing now).
Oh, and of course, Elon jumps in to say this “sounds like a First Amendment violation.”
Dude, the Supreme Court literally just covered this in a case that talked quite a bit about your own site and said (pretty fucking clearly) that the record did not support any claim of a First Amendment violation.
All of this is stupid. That letter is written in the worst possible way. While it does not state anything fundamentally false, it makes it sound like things that have been public knowledge for years are somehow a new admission. It further directly enables idiots like Trump, Jordan, and Musk to claim false things about what happened. And, finally, it just contributes to a totally unnecessary news cycle.
The only actual “news” out of all this is (1) Zuckerberg has no spine and simply cannot stand up to bad faith government pressure to change his moderation practices when it comes from Republicans (he was fine doing so when it came from Democrats) and (2) Donald Trump has accused himself of rigging his own election against himself.
Zuckerberg has to know how this would play out. After all, the same misleading reaction happened two years ago when he went on Rogan’s podcast. The only reasonable interpretation of this is that he sent this letter, knowing how it would be interpreted, to give Jordan/Trump red meat to continue believing their own false and misleading claims in case Trump wins in the fall. It’s stupid and cynical, but that’s the kind of politics Meta seems to play these days.
One frustrating thing in following everything that has happened in the case that started out as Missouri v. Biden and is now Murthy v. Missouri at the Supreme Court, is that the case is full of lies. The whole case is kind of a mess for a variety of reasons. This includes the original plaintiffs (a mix of states and private actors, where it’s not clear why they’re all together, and it’s not clear that any of them have actual standing), as well as the framing and positioning of the case, including misrepresenting various elements of reality.
In some ways, this case is an uncomfortable one. I’ve spent years explaining why government should stay the fuck out of any attempt to pressure companies to moderate in one way or another. I celebrated the Backpage v. Dart decision, as it gave a clear update to the Supreme Court’s Bantam Books case regarding coercing bookstores not to carry books. On top of that, I’ve found some of the actions by the Biden administration, in trying to convince companies to change their moderation practices, highly problematic. There were plenty of times they should have just shut up.
But it did not appear to me that anything they did crossed the line from persuasion and use of the bully pulpit (perfectly legal and expected) to coercion (a violation of the 1st Amendment). It could be argued that where you draw that line is complex, and people can draw the line in different places. Indeed, there would be an interesting Supreme Court case to be heard that looks at the proper place to draw such a line.
But this isn’t that case (nor is this that Supreme Court). And that’s mostly because the record in the lower courts is a total mess, full of made up fantasies that were accepted as real and accurate.
Just a few weeks ago, I had a good conversation with a very smart lawyer who comes down on the other side of this case than I do. I told him that the part that was most frustrating to me was that it felt like the administration was arguing this case as if one side (and some judges) hadn’t just made up a bunch of shit and insisted it was fact. This allowed people to suggest that there was actual evidence on the record of the White House crossing the line into coercion.
The problem is that the evidence isn’t really there.
And now, finally, the Biden administration has found its voice on this. Its reply brief leading up to the oral arguments later this month finally makes a pretty direct call out to the lies from below on the record.
As they did at the stay stage, respondents try to defend that startling result by invoking the district court’s factual findings—which they assert are “unrebutted,” Resp. Br. 2—to substantiate their allegations of widespread government censorship. But the government vigorously disputed the district court’s findings below, and the Fifth Circuit declined to rely on many of them— presumably because they are unsupported or demonstrably wrong. Gov’t Br. 9. Respondents’ presentation to this Court paints a profoundly distorted picture by pervasively relying on those debunked findings.
Respondents still have not identified any instance in which any government official sought to coerce a platform’s editorial decisions with a threat of adverse government action. Nor can respondents point to any evidence that the government ever imposed any sanction when the platforms declined to moderate content the government had flagged—as routinely occurred. Instead, respondents principally argue that government officials transformed private platforms into state actors subject to First Amendment constraints merely by speaking to the public on matters of public concern or seeking to influence or inform the platforms’ editorial decisions. The Court should reject that radical expansion of the state-action doctrine, which would “eviscerate certain private entities’ rights to exercise editorial control over speech and speakers on their properties or platforms.”
They even call out (finally!!!) the one email that keeps making the rounds: the email from Biden digital guy Rob Flaherty to Facebook. Like many others, when I first saw this as presented by the district court, I thought it was an actual example of the White House overstepping its bounds and said as much. But then, after looking at the more detailed record and context I realized that the plaintiffs and the judge totally misrepresented the email. It was actually about a technical problem regarding signups to the Biden campaign account, which Rob got angry about. But it was presented as him being angry about content moderation choices. In context, you realize this email (while intemperate) had nothing to do with coercing speech. It was venting about a technical glitch.
However, both the district court and the 5th Circuit falsely present it as being about content moderation, just as the plaintiffs did. And here, the White House finally calls bullshit on this (though in a footnote):
Although space does not permit a full treatment of the inaccuracies in respondents’ account of the White House’s communications, we offer one other example: As proof of supposedly “ominous and coercive” “threats,” respondents recount that in July 2021, “the White House emailed Facebook stating, ‘Are you guys fucking serious? I want an answer on what happened here and I want it today.’ ” Resp. Br. 8 (quoting J.A. 740). But that admittedly crude comment was asking for an answer about a “technical” problem affecting the President’s own Instagram account—it had nothing to do with moderating other users’ content.
It’s kinda frustrating that the case has gotten this far with that falsehood on the record.
The reply brief also seems to be targeting Justice Kavanaugh, who you might consider a natural to reflexively side with the states against Biden, but the DOJ’s brief leans heavily on the ruling in Halleck, which was written by Kavanaugh:
Respondents ask this Court to rewrite the “constitutional boundary between the governmental and the private,” Manhattan Community Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019), by affirming a sweeping and unprecedented injunction based on sweeping and unprecedented understandings of Article III standing, the state-action doctrine, and the proper scope of equitable relief. Respondents insist that any person can establish standing to challenge any action affecting any speech by any third party merely by asserting a desire to hear it—a proposition that would effectively abolish Article III’s limits in free-speech cases. Respondents seek to transform private social-media platforms’ editorial choices into state action subject to the First Amendment. And respondents do not deny that the injunction installs the district court as the overseer of the Executive Branch’s communications with and about the platforms, muzzling senior officials’ speech to the public and exposing thousands of employees to contempt should the court conclude that their statements run afoul of the Fifth Circuit’s novel and vague standards.
The DOJ highlights the astounding weakness of the underlying record, which points to vague statements made by administration officials, followed by policy decisions made by tech companies, and insisting the two are connected, without showing any actual connection. And that should be seen as problematic.
Respondents assert (Br. 19-22) that they suffered “direct” injuries because the government purportedly caused platforms to moderate content respondents had posted. But the Fifth Circuit did not find that any particular government action caused a platform to do anything to any content posted by respondents that the platform would not have done in “its ‘broad and legitimate discretion’ as an independent company,” Changizi v. HHS, 82 F.4th 492, 497 (6th Cir. 2023) (citation omitted); see Gov’t Br. 17-18.
Seeking to plug that gap, respondents cite (Br. 19- 21) various instances in which the platforms moderated their content—most of which involve COVID-19-related content posted at the height of the pandemic. But respondents make little effort to connect those acts by the platforms to any specific action by the government. They do not, for example, suggest that government officials specifically targeted their content. Instead, they urge a “birds-eye view” of traceability, Resp. Br. 19 (citation omitted), under which they presume that the relevant acts of content moderation are traceable to government officials merely because those officials made general statements about content moderation at around the same time, see id. at 21.
That generalized approach fails. The platforms have strong independent business incentives to moderate content, see C.A. ROA 18,445-18,453; the platforms actually did moderate respondents’ COVID-19-related content starting in 2020, long before the bulk of the government actions challenged here, see Gov’t Br. 18-19; and each cited moderation decision is consistent with the platforms’ independent application of their own policies, see, e.g., J.A. 787-794 (Hines); J.A. 797-801 (Hoft). Especially given that context, respondents’ bare timing-based speculation does not establish traceability
I’m almost wondering if the DOJ didn’t really take this case as seriously until recently, which is why it feels like they’re finally coming out swinging at this point.
Indeed, the filing admits what I’ve said all along: if the government actually did what the respondents claim, then absolutely this would be a First Amendment violation. The problem is that there’s no evidence that they actually did it. And that makes this a messy case. I’d like the Supreme Court to rule that the White House cannot take actions to coerce social media companies, because that’s the correct answer.
But how does a White House deal with an injunction that says “stop doing this stuff we insist you’re doing, even though you’re not”? The lack of clarity here means that the White House’s only option is to go way beyond what the First Amendment prohibits to avoid crossing a line drawn insisting that perfectly legitimate activity is violating the First Amendment.
So, the brief admits that “yes, you should blame us if we had done all those awful things, but we didn’t.”
No one disputes that the government would have violated the First Amendment if it had used threats of adverse government action to coerce private social-media platforms into moderating content. See Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 67-68 (1963); Gov’t Br. 23, 26-27. But no such threats occurred here
The filing also calls out how the district court judge (repeatedly) inserted false quotes (or misattributed the quotes to make them seem worse):
Respondents repeat the district court’s assertion that the former White House Press Secretary made a “threat of ‘legal consequences’ if platforms do not censor misinformation more aggressively.” Resp. Br. 41 (quoting J.A. 111) (brackets omitted). But notwithstanding the internal quotation marks in that passage, the Press Secretary never uttered the words “legal consequences.” See C.A. ROA 23,764- 23,791. Instead, the words the district court attributed to her came from respondents’ statement of facts. Id. at 26,476. Although we have highlighted this error before, see Gov’t C.A. Br. 30; Gov’t C.A. Reply Br. 9, respondents continue to repeat it.
The problem is not just the misquotation, but the absence of any statement in the relevant briefing that could plausibly be described as a threat of legal consequences. Respondents repeat the district court’s assertion that the Press Secretary “linked the threat of a ‘robust anti-trust program’ with” a purported “censorship demand.” Resp. Br. 40 (citation omitted). In fact, she did no such thing. When asked to respond to a Senator’s comment that “ ‘if the Big Tech oligarchs can muzzle the former President, what’s to stop them from silencing you?’,” the Press Secretary said (among other things) that the President “supports better privacy protections and a robust anti-trust program”—a natural response to a question about “ ‘oligarchs.’ ” C.A. ROA 609. Like the other press statements on which the Fifth Circuit relied, see Gov’t Br. 31-32, that response cannot plausibly be characterized as a threat of adverse action if the platforms failed to take specific acts of content moderation. Deeming such general comments about important matters of public policy coercive would make it impossible for the President and his senior advisors to communicate with the public—or even to respond to press questions—on policy matters involving the platforms.
The government also highlights that the general admission that it’s allowed to participate in the marketplace of ideas, so long as it doesn’t do anything specific, which is weird and unworkable.
Respondents cite no authority supporting their proposed dichotomy between “abstract” and “particular” advocacy in this context. Their reliance on Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam), is misplaced because that decision holds that speech is unprotected under the First Amendment when it imminently incites particular unlawful acts. Even setting aside the fact that the government’s entitlement to speak is not rooted in the First Amendment, the Court in Brandenburg did not purport to ascribe constitutional significance to the level of specificity used to encourage otherwise lawful actions, such as private platforms’ content-moderation decisions.
Respondents’ novel distinction between abstract and specific speech is also unworkable. President Roosevelt lambasted not all journalism, but only the muckraking variety; President Wilson complained about stories on a particular topic (the alleged presence of troops in Turtle Bay); and President Biden condemned specific videos about Osama Bin Laden that were circulating online. Gov’t Br. 24, 49. Which of those statements were sufficiently “abstract” to pass muster? Conversely, why were all of the statements at issue here—including public comments by the President, the Surgeon General, and others about the general problem of COVID-19 falsehoods—too specific? Respondents do not provide any answers, and none are apparent.
The DOJ brief also cites our own amicus brief, which called out how the injunction is so far-reaching that it even precludes companies (of their own free will) reaching out to government officials to inquire about certain information, which is completely ridiculous and unworkable:
The injunction flouts traditional equitable principles because it extends relief far beyond that required to redress any cognizable harm to respondents, and its vague terms would irreparably harm the government and the public by chilling a host of legitimate Executive Branch communications. Gov’t Br. 45-50. It also would harm the platforms and their customers by precluding the companies from voluntarily seeking governmental input and collaboration to improve the products they offer. E.g., id. at 44, 49; cf. Floor64 Amicus Br. 5-16.
Anyway, I still fear that this is an easy case for the Supreme Court to screw up big time. Many of the amicus briefs in favor of the states were absolutely crazy (a few were more serious). But this is (finally) a strong brief from the White House explaining the many, many ways in which this particular case is just stupid.
Of course, that won’t stop the Supreme Court from issuing a dumb ruling, but maybe it’ll at least give a few justices enough pause to realize how stupid this could get if they accept as accurate the lies told down below.
Over the last few days there have been a few stories making the rounds on right wing media sites, claiming that Rep. Jim Jordan had exposed the White House pressuring Amazon to remove books related to COVID disinformation. This is based on a thread Jordan posted to ExTwitter.
If it’s true that the White House did coerce Amazon to remove books, that would be a clear First Amendment violation and a real problem. The White House should not be in the business of telling anyone what speech they can and cannot host. Ever.
Unfortunately, Rep. Jim Jordan has cried wolf so many times on misleading to outright false claims of the White House demanding censorship that it’s tough to take him seriously (which might also why no one outside of the Fox News/NY Post bubble has picked up on this story). Jordan has a track record of taking a complete nothingburger and misrepresenting it into “OMG CeNSorSHiP.”
And, because Jordan only released a few selected screenshots, and not the full details of the docs, it’s (again) difficult to know what actually happened here, and whether or not the White House actually overstepped its bounds. From what’s disclosed I think it’s possible that it did go too far, but what Jordan released doesn’t actually show that, and you would think if he’d actually found the smoking gun, he’d put it front and center. Instead, what he put front and center… is something that doesn’t say what Jordan claims it says.
To be clear, what books Amazon sells is none of the White House’s business, and the First Amendment forbids them from trying to coerce the company on this. There’s literally a famous Supreme Court case detailing why the government can’t pressure book sellers to remove books.
But, again, (and this is what the Supreme Court will be considering shortly in the Murthy case) the White House is still allowed to try to persuade private companies to change their policies. It just can’t coerce or threaten them into doing so. What’s unclear here (in part because Jordan is only releasing snippets, and not the full record) is which side of the line things fell on here.
What does seem clear is that Andy Slavitt, who at the time was the “Senior Pandemic Advisor” to the White House, wanted to talk to someone at Amazon about books promoting COVID misinformation:
If it’s just talking, that’s fine. If it’s pushing them to remove the content that’s a problem. And there’s at least some indication that people inside Amazon felt it might be the latter. This is the email that Jordan has been waving around the most:
Though, note that this is a “pre-brief” discussion, meaning Amazon folks trying to figure out what the White House might be asking. If it were after the meeting, that would obviously be even more concerning. But it’s not. It’s Amazon employees internally expressing concern that the White House might be trying to pressure them (which would be a problem) and telling other employees that they need to find out directly if that’s the case.
Jordan presents some of the screenshots out of order to make the narrative flow better (which again, raises questions about what’s really here). For example, he highlights Amazon declining to make certain changes that would get picked up by Fox News as being “too visible,” but (1) this email is from a week before talking to the White House so isn’t about pressure from them, and (2) doesn’t even appear to be about removing books, but about “customer behavior associations” and (3) the concern was in response to a wholly separate incident when Amazon chose to remove a book for violating its hate speech policies.
That suggests that the discussion was more about book recommendations rather than removing books (even as Jordan implies otherwise).
Also reading the actual screenshots that Jordan released, it looks like the White House was questioning if some of the books violated Amazon’s publicly stated policies on false or misleading information. That is, rather than demanding the books be removed, the White House was asking if they violated existing policy (which is very different than asking them to take them down). And, internally, Amazon was pointing out that the White House appeared to be misreading Amazon’s policy, which was actually about false or misleading metadata about the books, not about the content of the books (not that Jordan acknowledges this important nuance, because that would wreck his narrative):
Later on, Jordan claims that Amazon made decisions because they were “feeling pressure from the White House.” Though, again, reading the underlying document shows that they were much, much more concerned with bad press from Buzzfeed, and the “pressure from the White House” line is both partially redacted and a little unclear as to what exactly it refers to.
And, later on, when Amazon did change its policy, it was in response to a coming negative Buzzfeed article, not… the White House.
So, in the end… this again doesn’t seem to be the smoking gun the Fox News-o-sphere is running with.
I still think the White House probably shouldn’t be talking to Amazon about what books it offers anyway, but it’s difficult to see this being particularly damning, especially given the details. Combined with Jordan’s history of crying wolf on things like this, and his selective and misleading quoting here, this is just another non-story.
And, of course, that also means that even if Jordan ever did turn up a serious First Amendment issue, he’s already trained anyone serious not to pay attention to him. But, when looked at in context, this looks like the White House was asking Amazon if certain books violated existing policies, and Amazon telling them “no, you’ve misread our policies.” And then, later, following Buzzfeed reporters working on an article highlighting the promotion of nonsense peddling medical misinfo, they adjusted their policy not to remove books, but maybe not recommend them as highly. And, again, that appeared to be in response to bad press, and not the White House.
But, I guess, when you’re Jim Jordan and you’ve built up a huge profile making these exaggerated claims, you have to take what little breadcrumbs you’ve found and pretend they’re something much bigger.
We’ve been following the bizarre and frequently problematic case initially brought by Louisiana and Missouri against the Biden administration, claiming that the administration’s coordination with researchers and pressure on social media companies regarding how they moderate content violates the first amendment. As we’ve said for quite some time, there are legitimate and important questions about the boundaries between government officials using the bully pulpit to persuade companies to act in a certain way (allowed) and using threats to coerce companies to act in a certain way (very much not allowed).
This area of law, generally referred to as “jawboning”, is tragically underdeveloped, and while we have a few cases like Bantam Books, Okwedy v. Molinari, and Backpage v. Dart, none of them set out a clear and understandable standard for where the line is. And now it looks like this case, now dubbed Murthy v. Missouri due to how it reached the Supreme Court, may become a key case in drawing that line. I just really wish the underlying facts of the case weren’t so… pathetically stupid.
Back in July, district court Judge Terry Doughty issued what was a batshit crazy ruling that not just accepted conspiracy theory nonsense as fact, but literally involved Doughty inserting words that were never said into statements made by people in order to make his ruling make any sense. That’s a problem. But the end result was that Doughty insisted that the (admittedly stupid and haphazard) methods by which the White House urged social media companies to deal with COVID disinfo were one of the most egregious “censorship” campaigns of all time.
As we noted at the time, even if you could argue that a few moves by the White House may have edged over the persuasion/coercion line, none seemed particularly problematic or egregious. Even then, Doughty issued a big list of prohibitions that effectively made it impossible for anyone in the government to ever talk to any disinformation researcher or anyone at a social media company ever again, even if it was to discuss things like actual foreign attacks on elections. That seemed… problematic.
The case went up to the 5th Circuit, which quickly issued a ruling that scaled back the prohibitions issued by Judge Doughty, throwing out nine of the ten prohibitions as going too far, and massively scaling back the one remaining prohibition to basically just a ban on coercive actions. It also cut out three of the government defendants, though, when pressed by the plaintiffs, added one back weeks later with no explanation, just by changing one paragraph to basically say “oh yeah, CISA too.”
And while I think the 5th Circuit’s decision that rolled back nearly all of the district court’s ruling was a lot closer to reasonable, it still did not put forth any clear boundaries or rules that would allow anyone to understand where the line is drawn between illegal coercion and perfectly reasonable persuasion. The Schroedinger-like reversal on CISA as to whether it was included in the injunction or not kinda put the exclamation point on the fact that the 5th Circuit’s opinion, while citing to the rules set forth in those cases named above, really did less than nothing to clarify what the standards or tests ought to be. While it argues that it applied the 2nd Circuit’s test for jawboning, it clearly did not do that with CISA, as no clear explanation is given for whether CISA violated the law or not in the two separate rulings. In one ruling it says they obviously did not. In the other, it says they obviously did.
That’s… not giving the guidance that any test needs.
And, so the case got appealed to the Supreme Court, initially by one of the defendants, US Surgeon General Vivek Murthy (hence the new name for the case). Except even that has happened in a weird and non-standard way. Murthy went to the Supreme Court’s shadow docket to ask it to put a stay on the 5th Circuit’s ruling, which Justice Alito initially did. And while Murthy’s petition made it clear that the shadow docket petition could be quickly followed by a full cert petition, things got weird with the 5th Circuit, which initially said it was rescinding its initial decision, then said it wasn’t, then issued that new one that roped in CISA. And it wasn’t even clear what actually happened to the initial petition. Alito had given it a deadline. Then extended the deadline. And then nothing at all happened.
Until today.
The Supreme Court has issued a stay on the 5th Circuit’s injunction (which itself is a modified version of Judge Doughty’s injunction), saying that it will treat the shadow docket petition for a stay as a full cert petition and grant the petition, agreeing to hear the case shortly.
The application for stay presented to JUSTICE ALITO and by him referred to the Court is granted. The preliminary injunction issued on July 4, 2023, by the United States District Court for the Western District of Louisiana, case No. 3:22–cv–01213, as modified by the United States Court of Appeals for the Fifth Circuit on October 3, 2023, case No. 23–30445, is stayed. The application for stay is also treated as a petition for a writ of certiorari, and the petition is granted on the questions presented in the application. The stay shall terminate upon the sending down of the judgment of this Court.
But, even then things are weird. Because Justices Alito, Thomas, and Gorsuch wrote a dissent, saying they didn’t think the application for the stay should have been granted at all, arguing that the prohibitions on the government communicating with social media companies didn’t seem to present any irreparable harm, and the claims of potential chilling effects seemed only “hypothetical.”
Under a straightforward application of the test we use in deciding whether to grant a stay, the Government’s application should be denied. To obtain a stay pending the disposition of a petition for a writ of certiorari, an applicant must show, among other things, “a likelihood that irreparable harm will result from the denial of a stay.” Hollingsworth v. Perry, 558 U. S. 183, 190 (2010) (per curiam). A stay is an “extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Resources Defense Council, Inc., 555 U. S. 7, 22 (2008) (discussing the similar standard for an injunction). Thus, the Government in this case must make a “clear showing” of irreparable harm. And to do that, it is not enough to “simply sho[w] some ‘possibility of irreparable injury.’” Nken v. Holder, 556 U. S. 418, 434 (2009). A mere “‘possibility’ standard is too lenient.” Id., at 435 (quoting Winter, 555 U. S., at 22). Instead, the Government must prove that irreparable harm is “likel[y].” Hollingsworth, 558 U. S., at 190. Here, the Government’s attempts to demonstrate irreparable harm do not come close to clearing this high bar.
Instead of providing any concrete proof that “harm is imminent,” White v. Florida, 458 U. S. 1301, 1302 (1982) (Powell, J., in chambers), the Government offers a series of hypothetical statements that a covered official might want to make in the future and that, it thinks, might be chilled. Application 36–38. But hypotheticals are just that—speculation that the Government “may suffer irreparable harm at some point in the future,” not concrete proof. White, 458 U. S., at 1302 (emphasis added). And such speculation does not establish irreparable harm. Nken, 556 U. S., at 434; see also Clapper v. Amnesty Int’l USA, 568 U. S. 398, 414, n. 5 (2013) (rejecting similar speculation as insufficient to establish an Article III standing injury).
But that’s wrong. The whole point of 1st Amendment arguments around chilling effects, which are often given credence by courts on “hypothetical” scenarios, is that the lack of clarity is itself a chilling effect that will lead them not to speak, and that alone is a problem.
The three justices also claim that they don’t see how any of the scenarios the government presents would actually be barred by the 5th Circuit’s (scaled back) injunction:
Moreover, it does not appear that any of the Government’s hypothetical communications would actually be prohibited by the injunction. Nor is any such example provided by the Court’s unreasoned order. The Government claims that the injunction might prevent “the President and the senior officials who serve as his proxies” from “speak[ing] to the public on matters of public concern.” Application 36; accord, id., at 3 (suggesting that the Fifth Circuit’s decision implicates “the use of the Office’s bully pulpit to seek to persuade Americans”). The President himself is not subject to the injunction, see Missouri v. Biden, 2023 WL 6425697, *33, and in any event, the injunction does not prevent any Government official from speaking on any matter or from urging any entity or person to act in accordance with the Government’s view of responsible conduct. The injunction applies only when the Government crosses the line and begins to coerce or control others’ exercise of their free-speech rights. Does the Government think that the First Amendment allows Executive Branch officials to engage in such conduct? Does it have plans for this to occur between now and the time when this case is decided?
But all of this is wrong. First of all, the claim that Biden is not included seems wrong? The injunction is issued against “the White House,” which seems like it would include the President. But, really, the latter half is the whole problem. The 1st Amendment already bars the government from crossing that line and acting coercively. But the problem with the 5th Circuit’s injunction is that it provides no clear way to know if anyone is crossing that line. And that’s what the petition is really arguing.
If the government parties don’t know how that line is drawn, then the only way to stay on the right side of it is to over restrict themselves. And that’s the chilling effect harm that they are talking about.
And it’s bizarre that Alito, Thomas, and (especially) Gorsuch, seem unable to recognize that.
Again, it would be good to get a clear ruling with a clear explanation of a test on how you draw that line between allowed persuasion and 1st Amendment-violating coercion. One hopes that the Supreme Court will do a good job of that, but given everything about this case so far, who the hell knows how that’s actually going to play out.
So, last Friday, the 5th Circuit released its opinion in the appeal of an absolutely ridiculous Louisiana federal court ruling that insisted large parts of the federal government were engaged in some widespread censorial conspiracy with social media, and barred large parts of the government from talking to social media companies and even academic researchers.
The 5th Circuit massively trimmed back the district court’s injunction, throwing out 9 of the 10 listed “prohibitions,” removing a bunch of the defendants, including CISA and Anthony Fauci’s NIAID, noting that there was no evidence they had done anything improper, and taking the one remaining prohibition, and basically chopping it back to be close to meaningless (basically “don’t coerce the companies.”)
I thought the 5th Circuit was right to use the tests that the 2nd and 9th Circuits used for “coercion,” but found the actual application of those tests to be… at best weird, and at worst potentially extremely problematic (especially in the case of the CDC defendant, where the ruling made no sense at all). That confused application of the facts to the test at hand presented a challenge for the administration, as it arguably provided zero useful guidance for the administration on how to not violate the injunction. And that’s because the court really laid out no clear way of applying the test that was coherent or understandable. It kinda made stuff up as it went along and said “that’s coercion,” even though it wasn’t clear what was actually coercive.
Even when the 5th Circuit highlighted, for example, quotes from the administration to social media companies, it never provided the context or details. In fact, it would provide tiny fragments (a few word phrases) without any indication of who said what, what websites in particular they were talking about, and what it actually meant in context. And that was a real problem, especially as the lower court took many quotes so out of context as to reverse their meaning (and in one case, added in words to make a quote say the opposite of what it really said).
That said, I still wondered if the Biden administration would actually ask the Supreme Court to review it, because the final ruling was pretty limited in scope, and there’s a real risk that this Supreme Court, which has become so political in nature, would make a decision that was much, much worse and much, much more problematic for the administration.
Apparently, the White House felt differently, and they’ve rushed to the Supreme Court to ask the Supreme Court to review things on the shadow docket. Justice Alito has now put a stay on the injunctions and asked for filings by this coming Wednesday to review the issue.
The White House’s application is worth reading. First, they challenge the standing of the plaintiffs in the case (five people who were moderated on social media, along with the states Louisiana and Missouri). The White House notes that even if you argue that the individuals who were moderated have standing, they faced moderation before the White House said anything (i.e., it was independent decisions by the companies):
The Fifth Circuit held that they have standing because their posts have been moderated by social-media platforms. But respondents failed to show that those actions were fairly traceable to the government or redressable by injunctive relief. To the contrary, respondents’ asserted instances of moderation largely occurred before the allegedly unlawful government actions. The Fifth Circuit also held that the state respondents have standing because they have a “right to listen” to their citizens on social media. App., infra, 204a. But the court cited no precedent for that boundless theory, which would allow any state or local government to challenge any alleged violation of any constituent’s right to speak.
The larger point, though, is the 1st Amendment arguments regarding the jawboning questions, with the White House pointing out that these rulings take away the government’s bully pulpit, where it is allowed to advocate for positions, it just can’t threaten or punish people for their speech:
Second, the Fifth Circuit’s decision contradicts fundamental First Amendment principles. It is axiomatic that the government is entitled to provide the public with information and to “advocate and defend its own policies.” Board of Regents v. Southworth, 529 U.S. 217, 229 (2000). A central dimension of presidential power is the use of the Office’s bully pulpit to seek to persuade Americans — and American companies — to act in ways that the President believes would advance the public interest. President Kennedy famously persuaded steel companies to rescind a price increase by accusing them of “ruthless[ly] disregard[ing]” their “public responsibilities.” John F. Kennedy Presidential Library & Museum, News Conference 30 (Apr. 11, 1962), perma.cc/M7DL-LZ7N. President Bush decried “irresponsible” subprime lenders that shirked their “responsibility to help” distressed homeowners. The White House, President Bush Discusses Homeownership Financing (Aug. 31, 2007), perma.cc/DQ8B-JWN4. And every President has engaged with the press to promote his policies and shape coverage of his Administration. See, e.g., Graham J. White, FDR and the Press (1979).
Of course, the government cannot punish people for expressing different views. Nor can it threaten to punish the media or other intermediaries for disseminating disfavored speech. But there is a fundamental distinction between persuasion and coercion. And courts must take care to maintain that distinction because of the drastic consequences resulting from a finding of coercion: If the government coerces a private party to act, that party is a state actor subject “to the constraints of the First Amendment.” Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1933 (2019). And this Court has warned against expansive theories of state action that would “eviscerate” private entities’ “rights to exercise editorial control over speech and speakers on their properties or platforms.” Id. at 1932.
The Fifth Circuit ignored those principles. It held that officials from the White House, the Surgeon General’s office, and the FBI coerced social-media platforms to remove content despite the absence of even a single instance in which an official paired a request to remove content with a threat of adverse action — and despite the fact that the platforms declined the officials’ requests routinely and without consequence. Indeed, the Fifth Circuit suggested that any request from the FBI is inherently coercive merely because the FBI is a powerful law enforcement agency. And the court held that the White House, the FBI, and the CDC “significantly encouraged” the platforms’ content-moderation decisions — and thus transformed those decisions into state action — on the theory that officials were “entangled” in the platforms’ decisions. App., infra, 235a. The court did not define that novel standard, but found it satisfied primarily because platforms requested and relied upon CDC’s guidance on matters of public health.
Of course, this is the entire debate about jawboning in a nutshell. Where is the line between persuasion and coercion? The White House is correct that the 5th Circuit’s ruling doesn’t lay out a clear test or application, and leaves things muddled, but part of the problem is that where that line is has always been kinda muddled.
And I’m not at all sure that this Supreme Court will properly construe that line.
However, as the White House notes (and I would agree) the discussion with regards to the CDC in particular is kind of unworkable:
The implications of the Fifth Circuit’s holdings are startling. The court imposed unprecedented limits on the ability of the President’s closest aides to use the bully pulpit to address matters of public concern, on the FBI’s ability to address threats to the Nation’s security, and on the CDC’s ability to relay publichealth information at platforms’ request. And the Fifth Circuit’s holding that platforms’ content-moderation decisions are state action would subject those private actions to First Amendment constraints — a radical extension of the state-action doctrine
The White House also points out that the unclear nature of the remaining injunction creates a burden on federal government employees:
Third, the lower courts’ injunction violates traditional equitable principles. An injunction must “be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979). Here, however, the injunction sweeps far beyond what is necessary to address any cognizable harm to respondents: Although the district court declined to certify a class, the injunction covers the government’s communications with all social-media platforms (not just those used by respondents) regarding all posts by any person (not just respondents) on all topics. And it forces thousands of government officials and employees to choose between curtailing their interactions with (and public statements about) social-media platforms or risking contempt should the district court conclude that they ran afoul of the Fifth Circuit’s novel and ill-defined concepts of coercion and significant encouragement.
I don’t necessarily disagree with any of that. The ruling (mainly in how it applies the test for coercion) is a mess, and the final injunction (while massively slimmed down from the lower court’s) is confusing and unclear.
But, still, given how much of a partisan political football this is, I can easily see the Supreme Court making things way, way worse.
It looks like there will be quick turnaround on the shadow docket issue that I’m guessing may lead to a further stay of the injunction, as the White House said it intends to file for a full normal cert petition in October, allowing the Supreme Court to hear the full case this term. So it would be easy for Alito to stay the injunction until the case is fully briefed and heard.
Again, I get where the White House is coming from. The 5th Circuit ruling has real issues, but it struck me as way less damaging than whatever else might come out of this process. But, I guess, in the long run, it’s better to have a full ruling on this issue from the Supreme Court. I’m just scared of what this particular Supreme Court will say.
We’re going to go slow on this one, because there’s a lot of background and details and nuance to get into in Friday’s 5th Circuit appeals court ruling in the Missouri v. Biden case that initially resulted in a batshit crazy 4th of July ruling regarding the US government “jawboning” social media companies. The reporting on the 5th Circuit ruling has been kinda atrocious, perhaps because the end result of the ruling is this:
The district court’s judgment is AFFIRMED with respect to the White House, the Surgeon General, the CDC, and the FBI, and REVERSED as to all other officials. The preliminary injunction is VACATED except for prohibition number six, which is MODIFIED as set forth herein. The Appellants’ motion for a stay pending appeal is DENIED as moot. The Appellants’ request to extend the administrative stay for ten days following the date hereof pending an application to the Supreme Court of the United States is GRANTED, and the matter is STAYED.
Affirmed, reversed, vacated, modified, denied, granted, and stayed. All in one. There’s… a lot going on in there, and a lot of reporters aren’t familiar enough with the details, the history, or the law to figure out what’s going on. Thus, they report just on the bottom line, which is that the court is still limiting the White House. But it’s at a much, much, much lower level than the district court did, and this time it’s way more consistent with the 1st Amendment.
The real summary is this: the appeals court ditched nine out of the ten “prohibitions” that the district court put on the government, and massively narrowed the only remaining one, bringing it down to a reasonable level (telling the U.S. government that it cannot coerce social media companies, which, uh, yes, that’s exactly correct).
But then in applying its own (perhaps surprisingly, very good) analysis, the 5th Circuit did so in a slightly weird way. And then also seems to contradict the [checks notes] 5th Circuit in a different case. But we’ll get to that in another post.
Much of the reporting on this suggests it was a big loss for the Biden administration. The reality is that it’s a mostly appropriate slap on the wrist that hopefully will keep the administration from straying too close to the 1st Amendment line again. It basically threw out 9.5 out of 10 “prohibitions” placed by the lower court, and even on the half a prohibition it left, it said it didn’t apply to the parts of the government that the GOP keeps insisting were the centerpieces of the giant conspiracy they made up in their minds. The court finds that CISA, Anthony Fauci’s NIAID, and the State Department did not do anything wrong and are no longer subject to any prohibitions.
The details: the state Attorneys General of Missouri and Louisiana sued the Biden administration with some bizarrely stupid theories about the government forcing websites to take down content they disagreed with. The case was brought in a federal court district with a single Trump-appointed judge. The case was allowed to move forward by that judge, turning it into a giant fishing expedition into all sorts of government communications to the social media companies, which were then presented to the judge out of context and in a misleading manner. The original nonsense theories were mostly discarded (because they were nonsense), but by quoting some emails out of context, the states (and a few nonsense peddlers they added as plaintiffs to have standing), were able to convince the judges that something bad was going on.
As we noted in our analysis of the original ruling, they did turn up a few questionable emails from White House officials who were stupidly trying to act tough about disinformation on social media. But even then, things were taken out of context. For example, I highlighted this quote from the original ruling and called it out as obviously inappropriate by the White House:
Things apparently became tense between the White House and Facebook after that, culminating in Flaherty’s July 15, 2021 email to Facebook, in which Flaherty stated: “Are you guys fucking serious? I want an answer on what happened here and I want it today.”
Except… if you look at it in context, the email has nothing to do with content moderation. The White House had noticed that the @potus Instagram account was having some issues, and Meta told the company that “the technical issues that had been affecting follower growth on @potus have been resolved.” A WH person received this and asked for more details. Meta responded with “it was an internal technical issue that we can’t get into, but it’s now resolved and should not happen again.” Someone then cc’d Rob Flaherty, and the quote above was in response to that. That is, it was about a technical issue that had prevented the @potus account from getting more followers, and he wanted details about how that happened.
So… look, I’d still argue that Flaherty was totally out of line here, and his response was entirely inappropriate from a professional standpoint. But it had literally nothing to do with content moderation issues or pressuring the company to remove disinformation. So it’s hard to see how it was a 1st Amendment violation. Yet, Judge Terry Doughty presented it in his ruling as if that line was about the removal of COVID disinfo. It is true that Flaherty had, months earlier, asked Facebook for more details about how the company was handling COVID disinfo, but those messages do not come across as threatening in any way, just asking for info.
The only way to make them seem threatening was to then include Flaherty’s angry message from months later, eliding entirely what it was about, and pretending that it was actually a continuation of the earlier conversation about COVID disinfo. Except that it wasn’t. Did Doughty not know this? Or did he pretend? I have no idea.
Doughty somehow framed this and a few other questionably out of context things as “a far-reaching and widespread censorship campaign.” As we noted in our original post, he literally inserted words that did not exist in a quote by Renee DiResta to make this argument. He claimed the following:
According to DiResta, the EIP was designed to “get around unclear legal authorities, including very real First Amendment questions” that would arise if CISA or other government agencies were to monitor and flag information for censorship on social media.
Except, if you read DiResta’s quote, “get around” does not actually show up anywhere. Doughty just added that out of thin air, which makes me think that perhaps he also knew he was misrepresenting the context of Flaherty’s comment.
Either way, Doughty’s quote from DiResta is a judicial fiction. He inserted words she never used to change the meaning of what was said. What DiResta is actually saying is that they set up EIP as a way to help facilitate information sharing, not to “get around” the “very real First Amendment questions,” and also not to encourage removal of information, but to help social media companies and governments counter and respond to disinformation around elections (which they did for things like misleading election procedures). That is, the quote here is about respecting the 1st Amendment, not “getting around” it. Yet, Doughty added “get around” to pretend otherwise.
He then issued a wide-ranging list of 10 prohibitions that were so broad I heard from multiple people within tech companies that the federal government canceled meetings with them on important cybersecurity issues, because they were afraid that any such meeting might violate the injunction.
So the DOJ appealed, and the case went to the 5th Circuit, which has a history of going… nutty. However, this ruling is mostly not nutty. It’s actually a very thorough and careful analysis of the standards for when the government steps over over the line in violating the 1st Amendment rights by pressuring speech suppression. As we’ve detailed for years, the line is whether or not the government was being coercive. The government is very much allowed to use its own voice to persuade. But when it is coercive, it steps over the line.
The appeals court analysis on this is very thorough and right on, as it borrows the important and useful precedents from other circuits that we’ve talked about for years, agreeing with all of them. Where is the line between persuasion and coercion?
Next, we take coercion—a separate and distinct means of satisfying the close nexus test. Generally speaking, if the government compels the private party’s decision, the result will be considered a state action. Blum, 457 U.S. at 1004. So, what is coercion? We know that simply “being regulated by the State does not make one a state actor.” Halleck, 139 S. Ct. at 1932. Coercion, too, must be something more. But, distinguishing coercion from persuasion is a more nuanced task than doing the same for encouragement. Encouragement is evidenced by an exercise of active, meaningful control, whether by entanglement in the party’s decision-making process or direct involvement in carrying out the decision itself. Therefore, it may be more noticeable and, consequently, more distinguishable from persuasion. Coercion, on the other hand, may be more subtle. After all, the state may advocate—even forcefully—on behalf of its positions
It points to the key case that all of these cases always lead back to, the important Bantam Books v. Sullivan case that is generally seen as the original case on “jawboning” (government coercion to suppress speech):
That is not to say that coercion is always difficult to identify. Sometimes, coercion is obvious. Take Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963). There, the Rhode Island Commission to Encourage Morality—a state-created entity—sought to stop the distribution of obscene books to kids. Id. at 59. So, it sent a letter to a book distributor with a list of verboten books and requested that they be taken off the shelves. Id. at 61–64. That request conveniently noted that compliance would “eliminate the necessity of our recommending prosecution to the Attorney General’s department.” Id. at 62 n.5. Per the Commission’s request, police officers followed up to make sure the books were removed. Id. at 68. The Court concluded that this “system of informal censorship,” which was “clearly [meant] to intimidate” the recipients through “threat of [] legal sanctions and other means of coercion” rendered the distributors’ decision to remove the books a state action. Id. at 64, 67, 71–72. Given Bantam Books, not-so subtle asks accompanied by a “system” of pressure (e.g., threats and followups) are clearly coercive.
But, the panel notes, that level of coercion is not always present, but it doesn’t mean that other actions aren’t more subtly coercive. Since the 5th Circuit doesn’t currently have a test for figuring out if speech is coercive, it adopts the same tests that were recently used in the 2nd Circuit with the NRA v. Vullo case, where the NRA went after a NY state official who encouraged insurance companies to reconsider issuing NRA-endorsed insurance policies. The 2nd Circuit ran through a test and found that this urging was an attempt at persuasion and not coercive. The 5th Circuit also cites the 9th Circuit, which even more recently tossed out a case claiming that Elizabeth Warren’s comments to Amazon regarding an anti-vaxxer’s book were coercive, ruling they were merely an attempt to persuade. Both cases take a pretty thoughtful approach to determining where the line is, so it’s good to see the 5th Circuit adopt a similar test.
For coercion, we ask if the government compelled the decision by, through threats or otherwise, intimating that some form of punishment will follow a failure to comply. Vullo, 49 F.4th at 715. Sometimes, that is obvious from the facts. See, e.g., Bantam Books, 372 U.S. at 62–63 (a mafiosi-style threat of referral to the Attorney General accompanied with persistent pressure and follow-ups). But, more often, it is not. So, to help distinguish permissible persuasion from impermissible coercion, we turn to the Second (and Ninth) Circuit’s four-factor test. Again, honing in on whether the government “intimat[ed] that some form of punishment” will follow a “failure to accede,” we parse the speaker’s messages to assess the (1) word choice and tone, including the overall “tenor” of the parties’ relationship; (2) the recipient’s perception; (3) the presence of authority, which includes whether it is reasonable to fear retaliation; and (4) whether the speaker refers to adverse consequences. Vullo, 49 F.4th at 715; see also Warren, 66 F.4th at 1207.
So, the 5th Circuit adopts a strong test to say when a government employee oversteps the line, and then looks to apply it. I’m a little surprised that the court then finds that some defendants probably did cross that line, mainly the White House and the Surgeon General’s office. I’m not completely surprised by this, as it did appear that both had certainly walked way too close to the line, and we had called out the White House for stupidly doing so. But… if that’s the case, the 5th Circuit should really show how they did so, and it does not do a very good job. It admits that the White House and the Surgeon General are free to talk to platforms about misinformation and even to advocate for positions:
Generally speaking, officials from the White House and the Surgeon General’s office had extensive, organized communications with platforms. They met regularly, traded information and reports, and worked together on a wide range of efforts. That working relationship was, at times, sweeping. Still, those facts alone likely are not problematic from a First-Amendment perspective.
So where does it go over the line? When the White House threatened to hit the companies with Section 230 reform if they didn’t clean up their sites! The ruling notes that even pressuring companies to remove content in strong language might not cross the line. But threatening regulatory reforms could:
That alone may be enough for us to find coercion. Like in Bantam Books, the officials here set about to force the platforms to remove metaphorical books from their shelves. It is uncontested that, between the White House and the Surgeon General’s office, government officials asked the platforms to remove undesirable posts and users from their platforms, sent follow-up messages of condemnation when they did not, and publicly called on the platforms to act. When the officials’ demands were not met, the platforms received promises of legal regime changes, enforcement actions, and other unspoken threats. That was likely coercive
Still… here the ruling is kinda weak. The panel notes that even with what’s said above the “officials’ demeanor” matters, and that includes their “tone.” To show that the tone was “threatening,” the panel… again quotes Flaherty’s demand for answers “immediately,” repeating Doughty’s false idea that that comment was about content moderation. It was not. The court does cite to some other “tone” issues, but again provides no context for them, and I’m not going to track down every single one.
Next, the court says we can tell that the White House’s statements were coercive because: “When officials asked for content to be removed, the platforms took it down.” Except, as we’ve reported before, that’s just not true. The transparency reports from the companies show how they regularly ignored requests from the government. And the EIP reporting system that was at the center of the lawsuit, and which many have insisted was the smoking gun, showed that the tech companies “took action” on only 35% of items. And even that number is too high, because TikTok was the most aggressive company covered, and they took action on 64% of reported URLs, meaning Facebook, Twitter, etc., took action on way less than 35%. And even that exaggerates the amount of influence because “take action” did not just mean “take down.” Indeed, the report said that only 13% of reported content was “removed.”
So, um, how does the 5th Circuit claim that “when officials asked for content to be removed, the platforms took it down”? The data simply doesn’t support that claim, unless they’re talking about some other set of requests.
One area where the court does make some good points is calling out — as we ourselves did — just how stupid it was for Joe Biden to claim that the websites were “killing people.” Of course, the court leaves out that three days later, Biden himself admitted that his original words were too strong, and that “Facebook isn’t killing people.” Somehow, only the first quote (which was admittedly stupid and wrong) makes it into the 5th Circuit opinion:
Here, the officials made express threats and, at the very least, leaned into the inherent authority of the President’s office. The officials made inflammatory accusations, such as saying that the platforms were “poison[ing]” the public, and “killing people.”
So… I’m a bit torn here. I wasn’t happy with the White House making these statements and said so at the time. But they didn’t strike me as anywhere near going over the coercive line. This court sees it differently, but seems to take a lot of commentary out of context to do so.
The concern about the FBI is similar. The court seems to read things totally out of context:
Fourth, the platforms clearly perceived the FBI’s messages as threats. For example, right before the 2022 congressional election, the FBI warned the platforms of “hack and dump” operations from “state-sponsored actors” that would spread misinformation through their sites. In doing so, the FBI officials leaned into their inherent authority. So, the platforms reacted as expected—by taking down content, including posts and accounts that originated from the United States, in direct compliance with the request.
But… that is not how anyone has described those discussions. I’ve seen multiple transcripts and interviews of people at the platforms who were in the meetings where “hack and dump” were discussed, and the tenor was more “be aware of this, as it may come from a foreign effort to spread disinfo about the election,” coming with no threat or coercion — just simply “be on the lookout” for this. It’s classic information sharing.
And the platforms had reason to be on the lookout for such things anyway. If the FBI came to Twitter and said “we’ve learned of a zero day hack that can allow hackers into your back end,” and Twitter responded by properly locking down their systems… would that be Twitter “perceiving the messages as threats,” or Twitter taking useful information from the FBI and acting accordingly? Everything I’ve seen suggests the latter.
Even stranger is the claim that the CDC was coercive. The CDC has literally zero power over the platforms. It has no regulatory power over them and now law enforcement power. So I can’t see how it was coercive at all. Here, the 5th Circuit just kinda wings it. After admitting that the CDC lacked any sort of power over the sites, it basically says “but the sites relied on info from the CDC, so it must have been coercive.”
Specifically, CDC officials directly impacted the platforms’ moderation policies. For example, in meetings with the CDC, the platforms actively sought to “get into [] policy stuff” and run their moderation policies by the CDC to determine whether the platforms’ standards were “in the right place.” Ultimately, the platforms came to heavily rely on the CDC. They adopted rule changes meant to implement the CDC’s guidance. As one platform said, they “were able to make [changes to the ‘misinfo policies’] based on the conversation [they] had last week with the CDC,” and they “immediately updated [their] policies globally” following another meeting. And, those adoptions led the platforms to make moderation decisions based entirely on the CDC’s say-so—“[t]here are several claims that we will be able to remove as soon as the CDC debunks them; until then, we are unable to remove them.” That dependence, at times, was total. For example, one platform asked the CDC how it should approach certain content and even asked the CDC to double check and proofread its proposed labels.
So… one interpretation of that is that the CDC was controlling site moderation practices. But another, more charitable (and frankly, from conversations I’ve had, way more accurate) interpretation was that we were in the middle of a fucking pandemic where there was no good info, and many websites decided (correctly) that they didn’t have epidemiologists on staff, and therefore it made sense to ask the experts what information was legit and what was not, based on what they knew at the time.
Note that in the paragraph above, the one that the 5th Circuit uses to claim that the platform polices were controlled by the CDC, it admits that the sites were reaching out to the CDC themselves, asking them for info. That… doesn’t sound coercive. That sounds like trust & safety teams recognizing that they’re not the experts in a very serious and rapidly changing crisis… and asking the experts.
Now, there were perhaps reasons that websites should have been less willing to just go with the CDC’s recommendations, but would you rather ask expert epidemiologists, or the team who most recently was trying to stop spam on your platform? It seems, kinda logical to ask the CDC, and wait until they confirmed that something was false before taking action. But alas.
Still, even with those three parts of the administration being deemed as crossing the line, most of the rest of the opinion is good. Despite all of the nonsense conspiracy theories about CISA, which were at the center of the case according to many, the 5th Circuit finds no evidence of any coercion there, and releases them from any of the restrictions.
Finally, although CISA flagged content for social-media platforms as part of its switchboarding operations, based on this record, its conduct falls on the “attempts to convince,” not “attempts to coerce,” side of the line. See Okwedy, 333 F.3d at 344; O’Handley, 62 F.4th at 1158. There is not sufficient evidence that CISA made threats of adverse consequences— explicit or implicit—to the platforms for refusing to act on the content it flagged. See Warren, 66 F.4th at 1208–11 (finding that senator’s communication was a “request rather than a command” where it did not “suggest[] that compliance was the only realistic option” or reference potential “adverse consequences”). Nor is there any indication CISA had power over the platforms in any capacity, or that their requests were threatening in tone or manner. Similarly, on this record, their requests— although certainly amounting to a non-trivial level of involvement—do not equate to meaningful control. There is no plain evidence that content was actually moderated per CISA’s requests or that any such moderation was done subject to non-independent standards.
Ditto for Fauci’s NIAID and the State Department (both of which were part of nonsense conspiracy theories). The Court says they didn’t cross the line either.
So I think the test the 5th Circuit used is correct (and matches other circuits). I find its application of the test to the White House kinda questionable, but it actually doesn’t bother me that much. With the FBI, the justification seems really weak, but frankly, the FBI should not be involved in any content moderation issues anyway, so… not a huge deal. The CDC part is the only part that seems super ridiculous as opposed to just borderline.
But saying CISA, NIAID and the State Department didn’t cross the line is good to see.
And then, even for the parts the court said did cross the line, the 5th Circuit so incredibly waters down the injunction from the massive, overbroad list of 10 “prohibited activities,” that… I don’t mind it. The court immediately kicks out 9 out of the 10 prohibited activities:
The preliminary injunction here is both vague and broader than necessary to remedy the Plaintiffs’ injuries, as shown at this preliminary juncture. As an initial matter, it is axiomatic that an injunction is overbroad if it enjoins a defendant from engaging in legal conduct. Nine of the preliminary injunction’s ten prohibitions risk doing just that. Moreover, many of the provisions are duplicative of each other and thus unnecessary.
Prohibitions one, two, three, four, five, and seven prohibit the officials from engaging in, essentially, any action “for the purpose of urging, encouraging, pressuring, or inducing” content moderation. But “urging, encouraging, pressuring” or even “inducing” action does not violate the Constitution unless and until such conduct crosses the line into coercion or significant encouragement. Compare Walker, 576 U.S. at 208 (“[A]s a general matter, when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position.”), Finley, 524 U.S. at 598 (Scalia, J., concurring in judgment) (“It is the very business of government to favor and disfavor points of view . . . .”), and Vullo, 49 F.4th at 717 (holding statements “encouraging” companies to evaluate risk of doing business with the plaintiff did not violate the Constitution where the statements did not “intimate that some form of punishment or adverse regulatory action would follow the failure to accede to the request”), with Blum, 457 U.S. at 1004, and O’Handley, 62 F.4th at 1158 (“In deciding whether the government may urge a private party to remove (or refrain from engaging in) protected speech, we have drawn a sharp distinction between attempts to convince and attempts to coerce.”). These provisions also tend to overlap with each other, barring various actions that may cross the line into coercion. There is no need to try to spell out every activity that the government could possibly engage in that may run afoul of the Plaintiffs’ First Amendment rights as long the unlawful conduct is prohibited.
The eighth, ninth, and tenth provisions likewise may be unnecessary to ensure Plaintiffs’ relief. A government actor generally does not violate the First Amendment by simply “following up with social-media companies” about content-moderation, “requesting content reports from social-media companies” concerning their content-moderation, or asking social media companies to “Be on The Lookout” for certain posts.23 Plaintiffs have not carried their burden to show that these activities must be enjoined to afford Plaintiffs full relief.
The 5th Circuit, thankfully, calls for an extra special smackdown Judge Doughty’s ridiculous prohibition on any officials collaborating with the researchers at Stanford and the University of Washington who study disinformation, noting that this prohibition itself likely violates the 1st Amendment:
Finally, the fifth prohibition—which bars the officials from “collaborating, coordinating, partnering, switchboarding, and/or jointly working with the Election Integrity Partnership, the Virality Project, the Stanford Internet Observatory, or any like project or group” to engage in the same activities the officials are proscribed from doing on their own— may implicate private, third-party actors that are not parties in this case and that may be entitled to their own First Amendment protections. Because the provision fails to identify the specific parties that are subject to the prohibitions, see Scott, 826 F.3d at 209, 213, and “exceeds the scope of the parties’ presentation,” OCA-Greater Houston v. Texas, 867 F.3d 604, 616 (5th Cir. 2017), Plaintiffs have not shown that the inclusion of these third parties is necessary to remedy their injury. So, this provision cannot stand at this juncture
That leaves just a single prohibition. Prohibition six, which barred “threatening, pressuring, or coercing social-media companies in any manner to remove, delete, suppress, or reduce posted content of postings containing protected free speech.” But, the court rightly notes that even that one remaining prohibition clearly goes too far and would suppress protected speech, and thus cuts it back even further:
That leaves provision six, which bars the officials from “threatening, pressuring, or coercing social-media companies in any manner to remove, delete, suppress, or reduce posted content of postings containing protected free speech.” But, those terms could also capture otherwise legal speech. So, the injunction’s language must be further tailored to exclusively target illegal conduct and provide the officials with additional guidance or instruction on what behavior is prohibited.
So, the 5th Circuit changes that one prohibition to be significantly limited. The new version reads:
Defendants, and their employees and agents, shall take no actions, formal or informal, directly or indirectly, to coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech. That includes, but is not limited to, compelling the platforms to act, such as by intimating that some form of punishment will follow a failure to comply with any request, or supervising, directing, or otherwise meaningfully controlling the social-media companies’ decision-making processes.
And that’s… good? I mean, it’s really good. It’s basically restating exactly what all the courts have been saying all along: the government can’t coerce companies regarding their content moderation practices.
The court also makes it clear that CISA, NIAID, and the State Department are excluded from this injunction, though I’d argue that the 1st Amendment already precludes the behavior in that injunction anyway, so they already can’t do those things (and there remains no evidence that they did).
So to summarize all of this, I’d argue that the 5th Circuit got this mostly right, and corrected most of the long list of terrible things that Judge Doughty put in his original opinion and injunction. The only aspect that’s a little wonky is that it feels like the 5th Circuit applied the test for coercion in a weird way with regards to the White House, the FBI, and the CDC, often by taking things dramatically out of context.
But the “harm” of that somewhat wonky application of the test is basically non-existent, because the court also wiped out all of the problematic prohibitions in the original injunction, leaving only one, which it then modified to basically restate the crux of the 1st Amendment: the government should not coerce companies in their moderation practices. Which is something that I agree with, and which hopefully will teach the Biden administration to stop inching up towards the line of threats and coercion.
That said, this also seems to wholly contradict the very same 5th Circuit’s decision in the NetChoice v. Paxton case, but that’s the subject of my next post. As for this case, I guess it’s possible that either side could seek Supreme Court review. It would be stupid for the DOJ to do so, as this ruling gives them almost everything they really wanted, and the probability that the current Supreme Court could fuck this all up seems… decently high. That said, the plaintiffs might want to ask the Supreme Court to review for just this reason (though, of course, that only reinforces the idea that the headlines that claimed this ruling was a “loss” for the Biden admin are incredibly misleading).
The internet has revolutionized communications, sales, and information distribution, and has enabled historic levels of porn consumption. These are all unequivocally good things. (Fight me.) What it has also done is revolutionize court precedent.
Prior to internet ubiquity, courts were sometimes more receptive to plaintiffs attempting to hold third parties responsible for content generated by their users. The Communications Decency Act somehow managed to prevent the internet from becoming a litigation playground for bad faith operators. The internet was still in its infancy, but certain legislators and justices recognized the harm posed by the addition of direct liability for sites that did nothing else but give users a place to congregate and converse.
For years, this wasn’t a problem. Lately though, it appears certain legislators believe the best thing to do is introduce platform liability, if only because their hideous, bigoted supporters keep getting themselves booted off of popular social media services.
For now, sanity (mostly) prevails. Outside of corrupt outliers like the shady-as-fuck Supreme Court justice Clarence Thomas, higher courts seem mostly unwilling to start holding tech companies directly responsible for content created by their users.
And, for the most part, courts are unwilling to entertain outlandish conspiracy theories that suggest any government official merely referencing unwanted content is the same thing as the federal government demanding (under the full force of law) said content be removed from these services.
Lawsuit after lawsuit after lawsuit alleging government interference in online interactions has failed. Most of them have been brought in the Trump era — a four-year period where anti-vaxxers, conspiracy theorists, and extremely hateful people found themselves unexpectedly supported (and echoed) by the most powerful political leader in the world.
Fortunately, the court system generally doesn’t care who’s in office. The person with the finger on The Button doesn’t matter. The law does. So people who thought a president that unexpectedly embraced their extreme views would lead to courtroom wins are being informed none of that rhetoric matters when it comes to matters of established law.
The losses continue to mount. We can hope people are getting smarter after all this time. But I guarantee you that’s not the case. We’ll be seeing lawsuits like this forever, especially when the most extreme outliers of the Republican party are allowed to say extremely stupid shit without fear of being corrected, much less censured (which is not censored, btw) by fellow party members.
Lose all you want. We’ll make more. That’s the credo of the dumbasses that keep lobbing lawsuits into federal court without any apparent knowledge of how the law works.
This case involves a book called “The Truth About COVID-19: Exposing the Great Reset, Lockdowns, Vaccine Passports, and the New Normal,” which includes a foreword from Robert F. Kennedy Jr. Sen. Warren wrote a letter to Amazon expressing “concerns” about the book and Amazon’s role in promoting the book through its algorithms. The letter asked Amazon to review and publicly report on its algorithms. The book authors sued Sen. Warren for violating their First Amendment rights. The Ninth Circuit affirms the denial of a preliminary injunction.
The Ninth Circuit boots these claims to the curb, affirming the lower court’s ruling. It says Warren’s (apparently performative) letter to Amazon is not government interference in the author’s free speech rights. (The fact that Warren never followed up on her demand for a report on Amazon’s algorithms strongly suggests this was sent to score political points, rather than actually secure information on Amazon’s book-sorting methods.)
While the Ninth Circuit panel agrees [PDF] that Warren’s words in the letter and statement published on her site had the ability to cause reputational damage to the book’s author, it also recognizes that strong (even damaging) language is protected speech, even when used by politicians.
We must read the phrase “potentially unlawful” in context, not in isolation. Senator Warren’s letter began by noting that this was the second time she had written to Amazon in recent months. Her prior correspondence, she explained, expressed concern that the company was providing consumers with false or misleading information about unauthorized KN95 masks. In the next sentence, she wrote that “[t]his pattern and practice of misbehavior suggests that Amazon is either unwilling or unable to modify its business practices to prevent the spread of falsehoods or the sale of inappropriate products—an unethical, unacceptable, and potentially unlawful course of action from one of the nation’s largest retailers.” (Emphasis added.) Placed in proper perspective, the phrase “potentially unlawful” most likely refers to the “sale of inappropriate products,” such as the unauthorized KN95 masks. Such a business practice could potentially constitute unlawful consumer fraud. By contrast, the letter does not explain which law Amazon might be violating by selling The Truth About COVID-19 or any other book.
Even if we accept the plaintiffs’ reading of the letter, however, referencing potential legal liability does not morph an effort to persuade into an attempt to coerce.
On top of that, if this was government coercion, it was the most ineffectual coercion ever.
Finally, a full review requires us to analyze not only the tone of the letter but also the tenor of the overall interaction between Senator Warren and Amazon. An interaction will tend to be more threatening if the official refuses to take “no” for an answer and pesters the recipient until it succumbs. In Bantam Books, for instance, the Commission sent repeated notices and followed up with police visits. Here, the record contains no evidence that Senator Warren followed up on her letter in any fashion, even though Amazon continued to sell The Truth About COVID-19 on its platform.
The court goes on to point out that Senator Warren was completely incapable of directly punishing Amazon for carrying the book, something that would have required unified Congressional effort and perhaps even a change of law. This was just one Senator saying things about one book Amazon carried. And nothing on the record suggests it went any further than Warren’s original playing-to-the-base letter she sent to Amazon’s execs.
The requested injunction (which would be of limited usefulness this far past the heyday of the COVID pandemic) is denied. The lower court’s refusal to grant credence to these far-fetched legal arguments is affirmed. And, since it’s a published opinion, the denial carries precedential weight. Of course, legal precedent rarely deters idiotic litigators. But it does make it much, much easier to dismiss their bogus claims long before they start costing innocent parties actual money.
This week, the NY Times had an article detailing how House Speaker Kevin McCarthy has formed a close bond with Rep. Marjorie Taylor Greene, a situation that many thought was impossible just a couple years ago when McCarthy seemed to see Greene as a shameful example of the modern Republican party’s infatuation with conspiracy theories, falsehoods, and nonsense.
The details of that article aren’t all that interesting for BestNetTech, but there is one paragraph that certainly caught my attention:
Mr. McCarthy has gone to unusual lengths to defend Ms. Greene, even dispatching his general counsel to spend hours on the phone trying to cajole senior executives at Twitter to reactivate her personal account after she was banned last year for violating the platform’s coronavirus misinformation policy.
Later in the article, there are more details:
And by early 2022, Ms. Greene had begun to believe that Mr. McCarthy was willing to go to bat for her. When her personal Twitter account was shut down for violating coronavirus misinformation policies, Ms. Greene raced to Mr. McCarthy’s office in the Capitol and demanded that he get the social media platform to reinstate her account, according to a person familiar with the exchange.
Instead of telling Ms. Greene that he had no power to order a private company to change its content moderation policies, Mr. McCarthy directed his general counsel, Machalagh Carr, to appeal to Twitter executives. Over the next two months, Ms. Carr would spend hours on the phone with them arguing Ms. Greene’s case, and even helped draft a formal appeal on her behalf.
Now, let’s be clear: this is perfectly reasonable (as we’ve been describing) for politicians to state a case in favor of a certain course of action by platforms. It only reaches the problematic level when there is coercion involved.
But some folks, including in our comments, have been insisting that any interaction by any government official is automatically coercive. And, while I’m guessing they will argue here that “this is different,” because it was about reinstating an account, rather than taking one down, the simple fact remains, that it was government officials seeking to influence a moderation policy decision by a private company, effectively trying to sway that company’s own 1st Amendment protected right to decide for itself how to moderate.
The simple fact is that politicians on both sides of the aisle regularly are trying to influence how moderation occurs (often in contrasting ways). They’re allowed to try to persuade companies to act how they want, so long as there are no coercive elements there.
But, either way, this does go to reinforce the idea that the “Twitter Files” are simply cherry picking stories to suit their own political narrative, and apparently leaving out stories like this, where it was a high ranking Republican trying to influence a moderation decision.
