Monthly Archives: March 2024

The U.S. Supreme Court on Monday considered dueling interpretations of the Biden administration's interactions with social media platforms regarding content it viewed as dangerous to public health, democracy, or national security. During oral arguments in Murthy v. Missouri, Louisiana Solicitor General J. Benjamin Aguinaga said those private contacts, combined with public statements condemning the platforms' failure to suppress "misinformation," amounted to government-directed censorship. U.S. Principal Deputy Solicitor General Brian Fletcher disagreed, saying neither crossed the line "between persuasion and coercion."

If the federal government coerced platforms to censor speech by threatening them with "adverse government action," Fletcher conceded, that would be a clear violation of the First Amendment. But "no threats happened here," he argued, because White House officials merely "use[d] strong language" while encouraging the platforms to suppress speech that offended them and "referred in a general way to legal reforms in response to press questions." Any attempt to enjoin the government from privately pressuring Facebook et al. to crack down on controversial speech or publicly castigating them for failing to do so, he warned, would interfere with constitutionally permissible information sharing, "provision of advice," and federal officials' use of "the bully pulpit" to "call on the platforms to do more."

Aguinaga argued that federal officials went far beyond providing information that might help the platforms enforce their own content rules. He said officials persistently pressured the platforms to broaden those restrictions and enforce them more aggressively, and the platforms responded by changing their policies and practices. "As the 5th Circuit put it," Aguinaga said, "the record reveals unrelenting pressure by the government to coerce social media platforms to suppress the speech of millions of Americans." And most of that pressure, he emphasized, was applied behind closed doors, coming to light only as a result of discovery in this case.

"The government badgers the platforms 24/7," Aguinaga said. "It abuses them with profanity. It warns that the highest levels of the White House are concerned. It ominously says that the White House is considering its options, and it accuses platforms both of playing 'total Calvin Ball' and of 'hiding the ball'all to get the platforms to censor more speech. Under this onslaught, the platforms routinely cave.Pressuring platforms in back rooms shielded from public view is not using the bully pulpit at all. That's just being a bully."

Fletcher and Aguinaga both invokedBantam Books v. Sullivan, a 1963 case in which the Supreme Court held that Rhode Island's Commission to Encourage Morality in Youth violated the First Amendment by pressuring book distributors to drop titles it deemed objectionable. Notably, the commission itself had no enforcement authority, and at least some of the books it flagged did not meet the Supreme Court's test for obscenity, meaning the distributors were not violating any law by selling them. The Court nevertheless concluded that the commission's communications with book distributors, which ostensibly sought their "cooperation" but were "phrased virtually as orders," were unconstitutional because they aimed to suppress disfavored speech and had that predictable result.

Last September, the U.S. Court of Appeals for the 5th Circuit ruled that some of the Biden administration's communications with social media platforms qualified as coercion under the Bantam Books test. It also held that some of the interactions amounted to "significant encouragement" under the Court's 1982 ruling inBlum v. Yaretsky. Although that case involved due process rather than freedom of speech, the Court held that private decisions can amount to "state action" when the government has "provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State." That holding jibes with the general principle that the government may not indirectly do something that the Constitution forbids it to do directly.

In this case, the 5th Circuit held that the White House, the FBI, the Centers for Disease Control and Prevention, and the Cybersecurity and Infrastructure Security Agency were so heavily involved in content moderation decisions that their "advice" qualified as "significant encouragement" under Blum. As the Foundation for Individual Rights and Expression put it in a brief asking the Supreme Court to uphold the 5th Circuit's decision, federal officials "became so entangled with social media platform moderation policies that they were able to effectively rewrite the platforms' policies from the inside."

Fletcher urged the justices to focus on the persuasion/coercion distinction supported by Bantam Books rather than the question of "significant encouragement," which he said "risks turning the platforms and lots of other entities that are interacting with the government into state actors," thereby "restricting their editorial choices under the First Amendment." And on the question of coercion, he said, it was not enough to show that some federal officials were talking about antitrust action, regulation, and increased liability for user-posted content as ways of holding platforms "accountable" at the same time that others were urging the platforms to banish specific speakers, delete particular posts, or suppress certain kinds of content.

Justice Samuel Alito suggested that the Biden administration treated social media platforms differently than it would treat news outlets such asThe New York Times,The Washington Post, and the Associated Press. "The White House and federal officials are repeatedly saying that Facebook and the federal government should be partners," he said. "'We are on the same team.' Officials are demanding answers. 'I want an answer. I want it right away.' When they're unhappy, they curse them out. There are regular meetings. There is constant pestering of Facebook and some of the other platforms[Officials] suggestrules that should be applied and [ask], 'Why don't you tell us everything that you're gonna do so we can help you and we can look it over?' And I thought, 'Wow, I cannot imagine federal officials taking that approach to the print media.'If you did that to them, what do you think the reaction would be?"

At the same time, Alito said, the federal government had "these big clubs" to encourage compliance, including potential legal reforms that would expand the platforms' civil liability. "So it's treating Facebook and these other platforms like they're subordinates," he said.

The cursing to which Alito alluded, Fletcher noted, came in the context of a complaint about problems with President Joe Biden's Instagram account. "Are you guys fucking serious?" Deputy Assistant to the President Rob Flahertysaid in an email to Facebook. "I want an answer on what happened here and I want it today." That exchange, Fletcher said, was "not about moderating other people's content."

Fletcher nevertheless conceded that White House officials often adopted a harsh tone when they demanded that platforms suppress messages they viewed as discouraging vaccination against COVID-19. "There's an intensity [to] the back and forth here, and there's an anger that I think is unusual," he said. "But the context for that, I think, is that these platforms we're saying publicly, 'We want to help. We think we have a responsibility to give people accurate information and not bad information, and we're doing everything we can to meet that goal.' That's where this language of partnership comes from. It's not just from the White House; it's these platforms, which are powerful, sophisticated entities, saying, 'We're doing the best we can.'The anger is when the officials think that the platforms are not being transparent about the scope of the problem or aren't giving information that's available."

Justice Clarence Thomas, who joined Alito and Justice Neil Gorsuch in dissenting when the Court stayed the 5th Circuit's preliminary injunction in October, suggested that even amicable cooperation between the government and social media platforms could run afoul of the First Amendment. He asked Fletcher whether the government could "censor someone" by "agreeing with the platforms, as opposed to coercing the platforms." Suppose the platforms agreed that "we're on the same team" and "work[ed] together" with the government "to make sure that this misinformation doesn't gain sort of any following," he said. "The government can't censor by coordinating with private parties to exclude others' speech?"

Gorsuch likewise made a few points that might support a ruling against the government. He said suppression of a given plaintiff's speech could be deemed "traceable" to the government's conduct if the latter was "a motivating factor" in that particular moderation decision, even if it was not "a proximate cause." And he suggested that "a threat or an inducement with respect to antitrust actions" or protection from civil liability for users' posts, both of which could be relevant here, might "qualify as coercion." Likewise "an accusation by a government official that unless you change your policies, you're responsible for killing people"a description that fits what Biden said about Facebook and other platforms.

While Fletcher focused on coercion and defined it narrowly, Aguinaga argued that any contact in which a public official urges a platform to take down objectionable content carries an implicit threat because of the power that the government wields. If "my dear mother" complains to a platform about a post, he said, "they don't know her from Adam," so "they don't care, but they do care if it's the government."

Aguinaga drew a distinction between rebutting misinformation and demanding its censorship. "If the government thinks there's false speech out there, the remedy for that is true speech," he said. "Nothing prohibits the government from going to that platform and saying, 'We've seen a lot of false information about election activity and COVID and vaccines.'.Nothing prohibits the government from saying, 'Here's a list of everything we say is true. That is true in our view, and you should amplify our speech. And anytime that false speech arises, you should put our posts right there next to it, saying this is the government's view on this issue.'"

Aguinaga, who described himself as "a purist on the First Amendment," suggested that would be the right approach even when the government is responding to "factually erroneous information" about actions by U.S. troops (a hypothetical posed by Justice Brett Kavanaugh) or a social media "challenge" involving "teens jumping out of windows at increasing elevations" (as imagined by Justice Ketanji Brown Jackson). But he noted that suppression of some online speech, especially in the context of national security, would be constitutional if it withstood "strict scrutiny," meaning it was the least restrictive means of serving a compelling government interest.

"If you're concerned with the breadth of our arguments, that's one fail-safe," Aguinaga said. "No matter how broad the standard [that] the Court adopts, there's always gonna be strict scrutiny at the end of the line to save the government in times where it desperately needs to do the things that you're outlining."

Justice Elena Kagan questioned whether any of the individual plaintiffs who joined Louisiana and Missouri in this lawsuit could prove their speech was suppressed as a result of government pressure rather than independent decisions by social media platforms. "There's just nothing where you can say, 'OK, the government said, take down that communication,'" she told Aguinaga. "The government is making some broad statements about the kinds of communications it thinks [are] harmful. Facebook has a lot of opinions on its own about various kinds of communications." Based on "standard ideas about traceability and redressability," she said, "I don't see a single item in your briefs that would satisfy our normal tests."

Justice Sonia Sotomayor complained that Aguinaga's brief was misleading. "You omit information that changes the context of some of your claims," she said. "You attribute things to people who it didn't happen to." In one case, she said, "it was [a plaintiff's] brother that something happened to, not her. I don't know what to make of all this.I'm not sure how we get to prove direct injury in any way."

Aguinaga apologized. "If any aspect of our brief was notas forthcoming as it should have been," he said, "I would take full responsibility for that." He cited a couple of examples that he thought "prove direct injury," but Kagan and Sotomayor remained skeptical. And Fletcher argued that the timing of government communications and moderation decisions affecting the plaintiffs does not support an inference that the former resulted in the latter.

Aguinaga emphasized that the government's intervention resulted in the suppression of speech that otherwise would have been allowed. To illustrate that point, he cited an email from Meta executive Nick Clegg to Surgeon General Vivek Murthy, who had joined Biden in publicly charging Facebook with complicity in the deaths of unvaccinated Americans and urged a "whole-of-society" effort to combat the "urgent threat to public health" posed by "health misinformation," which he said might include "legal and regulatory measures."

After thanking Murthy "for taking the time to meet,'" Clegg said, "I wanted to make sure you saw the steps we took just this past week to adjust policies on what we're removing with respect to misinformation, as well as steps taken to further address the 'disinfo dozen' [users the government has identified as major purveyors of anti-vaccine messages]: we removed 17 additional Pages, Groups, and Instagram accounts tied to the disinfo dozen." Later Clegg told Murthy that Facebook "will shortly be expanding our COVID policies to further reduce the spread of potentially harmful content on our platform." Such exchanges, Aguinaga said, show that platforms like Facebook were "moving beyond what their own policies require[d] because they felt pressure to take more action and to censor more speech."

In Fletcher's telling, however, federal officials were simply providing information and encouraging voluntary collaboration. Aguinaga "started by saying that this is a massive attack on free speech," Fletcher said during his rebuttal. "The lower courts called it a coordinated censorship campaign. I want to be clear [that] if those things had happened, they would be reprehensible. It would be a huge problem." But under "a rigorous analysis of the facts and the law," he said, "we don't think that's [what] happened here. We don't think that's supported."

[This post has been updated with comments from Thomas and Gorsuch.]

Link:
SCOTUS Ponders Whether Biden Administration Coerced Social Media Platforms To Censor Speech - Reason

They say bad facts make bad law. But bad hypotheticals make even worse law, especially when they come from a clueless set of judges considering the most important free speech case in years.

That thought repeatedly crossed my mind as I listened to the U.S. Supreme Court make a mockery of free speech in Mondays arguments in the Murthy v. Missouri censorship case.

Make no mistake: The actions that led the attorneys general of Missouri and Louisiana to sue the Biden administration were not normal. They were unprecedented, both in the extremes to which government officials went in their effort to pressure tech companies into censoring viewpoints they did not like and in the way the companies submitted to the governments pressure. To use White House official Rob Flahertys word, they became partners in an Orwellian scheme to remove speech the government deemed false, misleading, or, in a perfect reflection of our elites beloved new nanny state, harmful to society.

The institutionalists on the Supreme Court appeared not to care. They seemed more concerned about chilling the governments ability to criticize media outlets that print stories they dont like something that, without attribution, Justice Elena Kagan said happens thousands of times a day in the federal government and which Kagan said she does herself. The institutionalists appeared more worried about a hypothetical of restricting law enforcement from informing a tech company (they always use the benign term inform) that people were using its platform to promote a teen suicide game.

Poor Benjamin Aguiaga, the Louisiana solicitor general, had to deal with that and other absurd hypotheticals throughout the argument. At one point, Justice Samuel Alito came to Aguiagas rescue, noting that some of your most recent colloquy with my colleagues have gotten off into questions that I didnt take it from your brief we you think we actually need to decide in this case. Alito correctly observed that your principal argument was that whatever coercion means, it what happened here is sufficient and that coercion doesnt mean only it doesnt apply only when the government says do this, and if you dont do this, there are going to be legal consequences when it says that in this same breath, but that its a more flexible standard and you have to take into account the whole course of the relationship regarding this matter.

That point went missing throughout the Murthy argument. The lawyering did not help. Ive faced my share of hostile panels, so I sympathize with Aguiaga. But he did not rise to the occasion. He got pulled down a rabbit hole with hypotheticals that he could not win. He failed to mention that the state action question that is, the question of whether censorship by a private technology company should be held to constitutional scrutiny because it is traceable to the government is not the end of the inquiry. Even if the plaintiff shows that private action constitutes state action, he or she must still show that the challenged action violates the Constitution.

That is easier said than done. Take the hypotheticals that Justices Kagan and Ketanji Brown Jackson offered. No judge would find the removal of a teen suicide video to violate the First Amendment, or any other law, because the First Amendment does not protect incitement or speech integral to criminal conduct. For the same reason, no judge would find the removal of terrorist recruitment videos, or child pornography, to violate the First Amendment. Indeed, Congress gave tech companies the power to remove such content in Section 230 of the Communications Decency Act of 1996.

The state action doctrine matters in this case because the challenged action the removal of speech based on its viewpoint is so noxious. It is precisely what the founders drafted the First Amendment to prohibit. It is always subject to strict scrutiny especially when, as here, it involves matters of public concern, including public health policy.

That is why Kagan and Jackson had to create strawman arguments based on extreme examples involving speech that gets less (or no) protection under the First Amendment. And while Aguiaga obliged them, he did so in a way that left several of the other justices, especially Amy Coney Barrett, confused about what standard he was discussing.

Aguiaga also failed to emphasize the key point of how the lower courts decided this matter: a preliminary injunction issued after extensive discovery that generated a massive factual record and a detailed opinion that the 5th Circuit largely affirmed in a 3-0 opinion. Appellate courts usually show great deference to such decisions.

Aguiaga should have mentioned that. He could have evaded the bizarre hypotheticals thrown out by Kagan, Jackson, and Sonia Sotomayor by explaining that those facts would result in a different factual record that would likely yield a different result.

In fact, lets be honest: Those records wouldnt exist because nobody would file those lawsuits. The attorney general of Louisiana certainly wouldnt sue the federal government for trying to combat the circulation of teen suicide videos. Nor would the Louisiana AG sue the federal government for telling Big Tech that you are hosting a lot of terrorist speech, which is going to increase the chances that theres going to be some terrible harm thats going to take place, another absurd hypothetical Kagan proffered.

The states involvement made this unique. What also made this case special the reason Judge Terry Doughty issued his opinion on Independence Day was the fact that the federal government was not targeting specific content that it could show posed an imminent threat of harm (like the terrorist videos or teen suicide videos in the justices hypotheticals) but was pressuring Big Tech to remove entire viewpoints about matters of public concern. And not just any viewpoints but those that disagreed with, or merely questioned, the governments viewpoint on certain topics. In other words, the government was pressuring the tech companies to silence dissent.

To his credit, Aguiaga tried to make that point a few times, but he did not do it nearly enough. Like the lawyers in the NetChoice cases, he also failed to challenge the justices casual use of the term misinformation and their assumption that tech companies are only censoring the bad stuff that appears online (whatever that means).

That is one of the most troubling aspects of these cases. After all, what is misinformation? In the context of public health, I assume the Supreme Court would say anything that public health officials say is false, misleading, or harmful.

But why should the government get to define what is true and what is false? Why should the government get to define what speech is misleading? Why should the government define what speech is harmful?

Those should be the central questions in these censorship cases. That is why the Missouri and Louisiana AGs filed this case. After all, speech that the government calls misinformation and which it has successfully pressured Big Tech to block often turns out to be true. Take, for example, the authenticity of Hunter Bidens laptop and the efficacy of the Covid-19 shots.

That is why the Supreme Court has never required that speech be true to be protected by the First Amendment. It has also rebuffed efforts to reduce the legal protection given to offensive (or some would say harmful) speech, including obscenity. Indeed, although obscenity is widely assumed to be unprotected by the First Amendment, the constitutional analysis is more nuanced.

The Murthy argument showed a Supreme Court that is headed in a very different direction. Justices Alito and Neil Gorsuch were the lone bright spots. They were the only ones who asked probing questions of both sides and seemed to care more about protecting the rights of ordinary Americans than unnamed federal bureaucrats.

Following Justice Antonin Scalias death, Justice Clarence Thomas has also become a leading voice for the courts originalists, even during oral argument, a practice he once seemed to disdain (I was there on Feb. 22, 2006, when Thomas asked a question in Holmes v. South Carolina; he did not ask another question until 2016).

Of course, there may still be a way to convert the courts three leftists back to the free speech side of society. Just a few years ago, in Manhattan Community Access Corporation v. Halleck, Kagan took the side of free speech when dissenting from a decision written by Justice Brett Kavanaugh that ratified a private companys refusal to broadcast a controversial documentary. Perhaps the leftists would change their tune if it was Donald Trumps White House that was pressuring tech companies to remove the speech of their political opponents.

What if Google decided that abortion is murder, and harmful to women who go through it, so it decided to remove speech that promotes abortion and abortion rights from YouTube? Would Kagan really have no problem with that? Would she be OK with Google removing videos of her criticizing the Dobbs decision from YouTube?

Or suppose Trump wins the 2024 election and his administration takes a hard stand against transgenderism. Under government pressure, Google decides that trans ideology is dangerous and harmful to children (it could cite plenty of evidence for support, of course) and says pro-trans videos should be removed from YouTube. Thats fine? We are supposed to believe that Kagan, Sotomayor, and Jackson not to mention untold numbers of Democrat-appointed judges across America would go along with that?

I think not. Aguiaga should have said so. Instead, he showed little resistance to a hostile bench that we knew was coming and that could render one of the most destructive constitutional decisions since the 19th century.

Scott Street is a Democratic lawyer and consultant in Los Angeles. He regularly writes about legal and political issues.

The rest is here:
Supreme Court Makes A Mockery Of Free Speech - The Federalist

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Dear Senator Schumer,

I am writing to give you a different perspective on the bill now in front of the Senate. The bill forces TikTok to decouple from Chinese ownership and, barring some miracle, will effectively ban it in the United States.

As a Ph.D. student and media scholar at the Newhouse School of Public Communications at Syracuse University studying social media behavior, I concur with you a lot about TikTok that you already know. TikToks proprietary For You algorithm is designed to build a personality profile around you and serve you with only the most instantly mesmerizing content. Its made TikTok the most successful app in history, surpassing Google as the worlds most visited web domain.

And for many students here at SU, its become an addiction akin to nicotine. I did a study last year, and many students admitted they can spend up to five hours a day watching TikTok videos. Research also shows that excessive TikTok watching leads to digital dementia, causing anxiety, depression and the loss of attention span.

I am not a big fan of TikTok, but I am against banning it. Before returning to school, I lived and worked in China for 17 years as an advertising executive in American and British firms. I personally witnessed the growth of Bytedance and the dominance of Douyin, TikToks sister platform in China. During that time, I also saw the dramatic rise of Facebook, Google, Twitter, YouTube and online news platforms such as The New York Times and The Washington Post, which the Chinese government all effectively blocked because they didnt follow the Communist Party line.

It is for this reason that I am opposed to the bill banning TikTok. It is fundamentally un-American and we are simply following Chinas censorship playbook. Blocking TikTok in any way effectively stops one of the core values that both you and I hold dearly, which is also our strength: openness. Are we willing to follow China and apply it here? America is better than this.

The argument is that the Chinese Communist Party is extracting data from us. If the Chinese government wanted to get our data, they could find many different ways. They could take a chapter from Russia and simply go to X, formerly known as Twitter, or Meta and do not need their own platform. Fueled by artificial intelligence, our American social media platforms are so porous and flawed, but our congressional leaders seem to do little about them despite hearings after hearings. And Americans simply do not value data privacy compared to other countries. Your bank credit score knows more about you than any piece of data that the CCP knew about me back in China.

There has only been speculation of a massive TikTok data breach without much hard evidence, only to say, they could if they wanted to. And given easily accessible data alternatives, why would the CCP jeopardize a highly-profitable company? TikTok is a cash cow, and it would be bad business to disrupt it, especially now that the Chinese economy is experiencing a slowdown.

There are better solutions than what Congress is proposing. What ever happened to Project Texas, the plan to house TikTok data in Oracle servers which would be Apples equivalent in China under their data localization laws? Project Texas would have been a reasonable compromise if we were worried about data leaving our shores.

Some have also argued that the CCP is using TikTok to spread anti-American propaganda. If this were the case, it wouldnt seem to be working. Why wouldnt the CCP use TikTok to improve American opinions on China? American opinions on China are now at an all-time low.

Why is Congress doing this? Its an emotional reaction to our governments failure to control social media. If TikToks addictive and potentially harmful algorithm leaves our youth due to the ban, platforms like Meta will pick up the slack.

We are so worried that the CCP will undermine democracy, so what do we do? Block or ban a social media platform. I have lived under a censorious regime, and I can tell you it is not something we want for our country.

Published on March 18, 2024 at 9:44 pm

View original post here:
No matter how you view TikTok, banning the platform would be censorship - The Daily Orange