biden administration – Techdirt (original) (raw)

Biden Administration Shouts ‘ONE MORE YEAR! ONE MORE YEAR!’ As Section 702 Stalemate Continues

from the only-if-FBI-agents-show-up-with-stuff-scrawled-on-posterboard dept

There are a variety of reasons to alter, if not actually end, the Section 702 collection. Whatever value it may have in terms of national security, the very real fact is that it has been endlessly abused by the FBI since its inception.

It’s a foreign-facing collection, which means it harvests communications and data involving foreign targets of US surveillance. But there’s a massive backdoor built into this collection. Collecting foreign communications often means collecting US persons’ communications with foreign persons or entities.

That’s where the FBI has gone interloping with alarming frequency. US persons’ communications are supposed to be masked, preventing the FBI from engaging in warrantless surveillance of US-based communications. This simply hasn’t happened. And the FBI has not only performed second-hand abuse of this collection regularly, but it has equally regularly refused to be honest with the FISA court about its activities.

The latest rejection of a clean reauthorization of Section 702 has nothing to do with the FBI’s continuous refusal to play by the rules. Instead, it has to do with the few times it decided to engage in some backdoor action that targeted the party in power or people temporarily involved with inflicting four years of Donald Trump on a nation that was definitely greater before someone started promising to make it great again.

However, the FBI — despite having abused its access for years — continues to insist the program should not be ended or altered. It has actually admitted its backdoor searches would otherwise be illegal without this program and its side benefits — something that should have hastened legislators on both sides of the political aisle to shut the whole thing down until these critical flaws were patched.

Instead, the whole thing have devolved into the expected in-fighting. Some legislators proposed meaningful reforms to the program, which were soundly rejected by a lot of Republicans simply because some Democrats were involved. The Republicans heading up the House Intelligence Committee proposed their own reforms, but the only thing they really wanted to change was the FBI’s ability to place Republicans under surveillance.

Meanwhile, the Biden Administration has decided the FBI is right, no matter how often it’s been wrong. Ignoring years of casual abuse, the Biden team has pushed for a clean reauthorization — something it may not have done if it weren’t for all the Republicans demanding (mostly for self-serving reasons) the program be ended or altered.

Unfortunately, Section 702 continues to live on, even if it’s in an unresponsive coma at the moment. Rather than let the surveillance authority expire, a bi-partisan effort did the country dirty by extending it until April 2024 where it could be further disagreed about following the return of Congressional reps to Capitol Hill.

April just isn’t good enough, apparently. The Biden Administration wants to buy even more time without any termination or authorization, presumably in hopes that the current furor will die down and this executive power will be granted a clean re-authorization. (Of course, by that point, there may be an actual Fuhrer in play, given Donald Trump’s early sweeps of critical primaries.)

Here’s Charlie Savage with more details for the New York Times:

The Biden administration is moving to extend a disputed warrantless surveillance program into April 2025, according to officials familiar with the matter.

The decision by the administration, which requires asking for court approval, seemed likely to roil an already turbulent debate in Congress over its fate. The program has scrambled the usual partisan lines, with members of both parties on each side of seeing the program as potentially abusive of civil liberties or as necessary for protecting national security.

This is probably preferable to holding a budget bill hostage in an executive office display of “I’ll hold my breath until I get my way.” And it’s preferable to Republican efforts to alter Section 702 simply to protect themselves from illegal surveillance. But it’s definitely not preferable to actually engaging with the inherent problems of this surveillance program, all of which seem to lead back to the FBI and its insistence on abusing its access.

This throws these problems on the back burner for another year. And it will be yet another year where the FBI abuses its access. We can make this assumption because there’s never been a year where the FBI hasn’t abused this surveillance power. Refusing to address an issue that’s been publicly acknowledged for several years now just to ensure the NSA doesn’t lose this surveillance program is irresponsible. The Biden Administration’s apparently tactic agreement with assertions made by an agency that has proven it can’t be trusted doesn’t bode well for anyone.

And, if this yearlong reprieve results in a clean reauthorization, the Biden Administration will quite possibly be handing this renewed power to Republicans now allowed to engage in their worst excesses, thanks to the re-election of Dumpster Fire Grover Cleveland.

The best thing the current administration could do at this point is allow the authority to die, which would force Republicans who love power (but hate to see it wielded against them) try to reconcile their desire for a surveillance state with the inevitable reality they will sometimes be on the receiving end of this surveillance. The worst thing it can do is what it’s doing now: pressing the pause button because it doesn’t have the desire or willingness to go head-to-head with an agency that claims — without facts in evidence — the only way it can keep this country secure from foreign threats is by warrantlessly spying on Americans.

Filed Under: biden administration, fbi, fisa court, joe biden, mass surveillance, nsa, section 702, surveillance

In One Lawsuit, Louisiana & Missouri Say Gov’t Can Never Pressure Websites To Change; In Another, They’re Looking To Pressure Websites To Change

from the a-study-in-contrasts dept

We’ve spent plenty of time over the last year or so on Missouri and Louisiana’s lawsuit against the Biden administration for apparently suggesting how sites like Meta should moderate content on their platforms. That case has had its twists and turns and is now going before the Supreme Court. I’m sure we’ll have plenty more to say on that case shortly, but last week we also saw the lawsuit where 33 states sued Meta for (what the lawsuit claims) is Meta’s failures to keep kids from using the platform.

Two of the states that signed on were… Missouri and Louisiana.

So… I’m curious if there’s any way to square these two lawsuits. Because as far as I can tell, the argument is that the government should never, ever even say anything that will pressure a website to change how it handles content on its website.

But also…

It’s perfectly fine for the government to use the judicial system to… force a website to handle content in the manner that the state feels is best.

Of course, the reality is that it doesn’t matter one bit that the two lawsuits are wholly inconsistent. This has always been about culture wars and headlines, and the earlier case is about the Attorneys General in Louisiana and Missouri scoring culture war points with the dumber segments of their voting bases, while the Meta lawsuit is about scoring techlash culture points among angry parents and teachers for failing in their jobs as parents and teachers.

But, really, it seems like reporters who are covering those two AGs might want to ask them directly how they can have both of these lawsuits going on at the same time. Can the government tell websites that host 3rd party speech how to operate or not?

Filed Under: andrew bailey, biden administration, for the children, jeff landry, louisiana, missouri
Companies: meta

White House, States Try To Convince Supreme Court In Jawboning Case

from the jawboning-the-supreme-court dept

As we noted last week, the Supreme Court put on hold the injunction issued by the 5th Circuit regarding the administration’s efforts to influence how social media companies deal with misinformation. As you’ll recall, Louisiana and Missouri and a variety of nonsense peddlers all sued the Biden administration, claiming that their 1st Amendment rights were violated by the administration’s actions.

The district court ruling in the case was mostly batshit crazy, taking things completely out of context and literally adding words to quotes to make it seem like people said stuff they absolutely did not. But, if you make up quotes that are not accurate, then you can claim that the White House was engaged in “censorship.” The 5th Circuit reviewed the decision and recognized it went way too far, and trimmed it way back, saying that many of the defendants shouldn’t be there (including many that the plaintiffs insisted were core to the issue), that 9 of the 10 prohibitions were too broad, and even the remaining prohibition needed to be trimmed back.

However, even the 5th Circuit’s ruling was weird. It did not clearly explain what made certain things “coercive” vs. “persuasive,” and the lack of specificity meant that it was useless in explaining to anyone what was and what was not permitted. Somewhat like the lower court ruling, the 5th Circuit ruling also took a number of quotes out of context, and the quotes shown in the ruling… are confusing. The 5th Circuit makes no effort to even explain who made the quotes or what they were in reference to. It also lumps together all of the social media platforms as if they were a single entity.

And so the White House went to the Supreme Court shadow docket, which put the 5th Circuit injunction on hold until midnight today. Just to be clear what’s going on, procedurally: the White House is in the process of doing a full appeal to the Supreme Court, which would allow for full briefing (including, I’m sure, a metric ton of amicus brief filings) and oral arguments. This process is just to see if the injunction the 5th Circuit issued last week is put on hold, or put into practice, until that case is decided on. The White House wants it put on hold. The states/nonsense peddlers want it to go into effect. As I noted in my coverage of the 5th Circuit ruling, I actually don’t think it’s that bad if it goes into effect, but I’m also sure that nonsense peddlers will use it to cause mischief, accusing many non-coercive government actions of being coercive and violating the injunction.

On Wednesday the plaintiffs in the case (Missouri, Louisiana, various nonsense peddlers) filed their brief. Yesterday, the White House filed its response. Separately there were some amicus briefs filed, though none are… um… good. Some are preposterously stupid and embarrassing. But given that the stay only exists until tonight, we’ll just focus on the main two filings.

The states/nonsense peddlers simply keep playing the same hand that has been successful to date. For example, they misquote the email Rob Flaherty sent to Facebook, suggesting it’s proof that the White House was pressuring the company to take down content:

“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, as we’ve shown, that email was about a problem with Facebook limiting the number of followers that the POTUS account had, and had literally nothing to do with content moderation questions:

Also, the part that the states are quoting above is from the district court ruling and not the 5th Circuit injunction, which is what is on appeal. Which is… kinda weird. Basically, the states are trying to pretend that the 5th Circuit adopted the district court’s ruling, when it mostly did not.

Beyond that, there really isn’t much new in this filing beyond just saying “look, the district court ruling was right! censorship censorship!”

The White House’s response is better than I expected, honestly. It points out the ridiculousness of the standing argument by the plaintiffs (at this point, technically now respondents due to how the process works):

Respondents’ opposition underscores the remarkable breadth of the decision below. Respondents insist that any individual or entity can establish standing to challenge any government action affecting speech by any third party merely by asserting a generalized desire to hear that speech — a proposition that would effectively abolish Article III’s limitations in free-speech cases. Respondents acknowledge that the Fifth Circuit’s decision transforms private social-media platforms’ content moderation into state action subject to the First Amendment — and thus subjects the platforms to suits compelling them to distribute speech they would prefer not to host. 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, exposing thousands of government employees to the threat of contempt should the court conclude that their statements run afoul of the Fifth Circuit’s novel and vague definition of state action.

As I mentioned, above, with the states leaning so heavily on the district court’s ruling, rather than the 5th Circuit’s it creates some oddities, which the White House calls out:

Respondents also offer little or no defense of the Fifth Circuit’s key legal holdings, including its expansive understanding of the sort of “coercion” and “significant encouragement” that transform private conduct into government action. Instead, respondents repeatedly seek to plug the holes in the Fifth Circuit’s legal analysis by invoking the district court’s factual findings, which they insist must be deemed to be “established as fact.” Opp. 2. But the government vigorously disputed those findings below and the Fifth Circuit declined to rely on many of them — presumably because they are unsupported or demonstrably erroneous. Respondents’ presentation to this Court paints a deeply distorted picture by pervasively relying on those debunked findings. And respondents’ unwillingness to defend the Fifth Circuit’s holdings that the findings it did credit are sufficient to establish coercion and significant encouragement only further confirms that those holdings are wrong.

Also, the White House notes that the states/nonsense peddlers point to harms to third parties who are not party to the suit as evidence of standing, but that makes no sense:

Respondents do not and could not contend that a sweeping injunction restricting the Executive Branch’s communications with all social media platforms about all content posted by all users is necessary to prevent any direct injury to respondents themselves. Instead, they invoke purported harms to third parties who have not sought judicial relief and are not parties to this suit. Those harms to non-parties are not a valid basis for injunctive relief at all; they certainly do not justify allowing a novel and profoundly disruptive injunction to take effect before this Court has the opportunity to review it.

This is all correct.

The annoying thing here is that this issue of government jawboning is an important one, and there should be clear limits to it. The government can try to persuade, but it cannot coerce. But where is that line? In the past I’ve said that the Bantam Books case and the Backpage v. Dart cases were really useful in limiting the government’s ability to pressure private entities to censor. But there are strong arguments that neither case set out a clear, applicable standard.

In this case, I’m uncomfortable with the overall arguments of both sides. The White House wants to push the line on what is and what is not coercive too far to the permissive side. I don’t think it should go as far as they want. But the states/nonsense peddlers are taking a much more ridiculous line, saying that basically government officials can do nothing (unless they’re Republican, in which case they can do anything).

But, as of right now, we don’t have a clear judicial standard on where that line is drawn.

This case is an opportunity to set such a standard, but given (1) the nonsense being peddled by the plaintiffs, (2) the ridiculously problematic district court ruling, (3) the unexplainable vagueness in the 5th Circuit ruling, and (4) the partisan nature of the Supreme Court… I’m not at all sure that this case is going to lead to a clear and applicable standard.

This is frustrating. One would hope that the Supreme Court would allow the stay to remain in place and allow for a full briefing/hearing on the issues here. It’s a complex case, but the docket is mostly full of FUD and nonsense, which is not a great start for finding where the proper line is.

Filed Under: biden administration, jawboning, joe biden, louisiana, missouri, supreme court, vivek murthy

What State Action Doctrine? Biden Administration Renews Push For Deal With TikTok, Where US Government Would Oversee Content Moderation On TikTok

from the that's-not-how-any-of-this-works dept

So, for all of the nonsense about what level of coercive power governments have over social media companies, it’s bizarre how little attention has been paid to the fact that TikTok is apparently proposing to give the US government control over its content moderation setup, and the US government is looking at it seriously.

As you likely know, there’s been an ongoing moral panic about TikTok in particular. The exceptionally popular social media app (that became popular long after we were assured that Facebook had such a monopoly on social media no new social media app could possibly gain traction) happens to be owned by a Chinese company, ByteDance, which has resulted in a series of concerns about the privacy risks of using the app. Some of those concerns are absolutely legitimate. But many of them are nonsense.

And, for basically all of the legitimate concerns the proper response would be to pass a comprehensive federal data privacy law. But no one seems to have the appetite for that. You get more headlines and silly people on social media cheering you on by claiming you want to ban TikTok (this is a bipartisan moral panic).

Instead of recognizing all of this and doing the right thing after Trump’s failed attempt at banning TikTok, the Biden administration has… simply kept on trying to ban TikTok or force ByteDance to divest. That’s another repeat of a bad Trump idea, which ended not in the divestiture, but Trump getting his buddy Larry Ellison’s company, Oracle, a hosting deal for TikTok. And, of course, TikTok and Oracle now insist that Oracle is reviewing TikTok’s algorithms and content moderation practices.

But, moral panics are not about facts, but panics. So, the Biden administration did the same damn thing Trump did three years earlier in demanding that TikTok be fully separated from ByteDance, or said the company would get banned in the US. Apparently negotiations fell apart in the spring, hopefully because TikTok folks know full well that the government can’t just ban TikTok.

However, the Washington Post says that they’re back to negotiating (now that the Biden administration is mostly convinced a ban would be unconstitutional), and the focus is on a TikTok proffered plan to… wait for it… outsource content moderation questions to the US government. This plan was first revealed in Forbes by one of the best reporters on this beat: Emily Baker-White (whom TikTok surveilled to try to find out where she got her stories from…). And it’s insane:

The draft agreement, as it was being negotiated at the time, would give government agencies like the DOJ or the DOD the authority to:

• Examine TikTok’s U.S. facilities, records, equipment and servers with minimal or no notice,
• Block changes to the app’s U.S. terms of service, moderation policies and privacy policy,
• Veto the hiring of any executive involved in leading TikTok’s U.S. Data Security org,
• Order TikTok and ByteDance to pay for and subject themselves to various audits, assessments and other reports on the security of TikTok’s U.S. functions, and,
• In some circumstances, require ByteDance to temporarily stop TikTok from functioning in the United States.

The draft agreement would make TikTok’s U.S. operations subject to extensive supervision by an array of independent investigative bodies, including a third-party monitor, a third-party auditor, a cybersecurity auditor and a source code inspector. It would also force TikTok U.S. to exclude ByteDance leaders from certain security-related decision making, and instead rely on an executive security committee that would operate in secrecy from ByteDance. Members of this committee would be responsible first for protecting the national security of the United States, as defined by the Executive Branch, and only then for making the company money.

For all the (mostly misleading) talk of the US government having too much say in content moderation decisions, this move would literally put US government officials effectively in control of content moderation decisions for TikTok. Apparently the thinking is “welp, it’s better than the Chinese government.” But… that doesn’t mean it’s good. Or constitutional.

“If this agreement would give the U.S. government the power to dictate what content TikTok can or cannot carry, or how it makes those decisions, that would raise serious concerns about the government’s ability to censor or distort what people are saying or watching on TikTok,” Patrick Toomey, deputy director of the ACLU’s National Security Project, told Forbes.

The Washington Post has even more details, which don’t make it sound any better:

A subsidiary called TikTok U.S. Data Security, which would handle all of the app’s critical functions in the United States, including user data, engineering, security and content moderation, would be run by the CFIUS-approved board that would report solely to the federal government, not ByteDance.

CFIUS monitoring agencies, including the departments of Justice, Treasury and Defense, would have the right to access TikTok facilities at any time and overrule its policies or contracting decisions. CFIUS would also set the rules for all new company hires, including that they must be U.S. citizens, must consent to additional background checks and could be denied the job at any time.

All of the company’s internal changes to its source code and content-moderation playbook would be reported to the agencies on a routine basis, the proposal states, and the agencies could demand ByteDance “promptly alter” its source code to “ensure compliance” at any time. Source code sets the rules for a computer’s operation.

Honestly, what this reads as is the moral panic over China and TikTok so eating the brains of US officials that rather than saying “hey, we should have privacy laws that block this,” they thought instead “hey, that would be cool if we could just do all the things we accuse China of doing, but where we pull the strings.”

Now, yes, it’s true that an individual or private company can voluntarily choose to give up its constitutionally protected rights, but there is no indication that any of this is even remotely close to voluntary. If the 5th Circuit found that simply explaining what is misinformation about COVID was too coercive for social media companies to make moderation decisions over, then how is “take this deal or we’ll ban your app from the entire country” not similarly coercive?

Furthermore, it’s not just the rights of TikTok to consider here, but the millions of users on the platform, who have not agreed to give up their own 1st Amendment rights.

Indeed, I would think there’s a very, very high probability that if this deal were to be put in place, it would backfire spectacularly, because anyone who was moderated on TikTok and didn’t like it would actually have a totally legitimate 1st Amendment complaint that it was driven by the US government, and that TikTok was a state actor (because it totally would be under those conditions).

In other words, if the administration and TikTok actually consummated such a deal, the actual end result would be that TikTok would effectively no longer be able to do much content moderation at all, because it would only be able to take down content that was not 1st Amendment protected.

So, look, if we’re going to talk about US government influence over content moderation choices, why aren’t we talking much more about this?

Filed Under: 1st amendment, biden administration, cfius, china, content moderation, control, doj
Companies: bytedance, tiktok

Supreme Court Puts 5th Circuit Ruling On Biden Admin Jawboning Of Social Media Companies On Hold For Shadow Docket Review

from the jawboning-at-the-supreme-court dept

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.

Filed Under: 1st amendment, 5th circuit, biden administration, bully pulpit, cdc, coercion, fbi, free speech, jawboning, louisiana, missouri, persuasion, vivek murthy, white house

5th Circuit Cleans Up District Court’s Silly Jawboning Ruling About the Biden Admin, Trims It Down To More Accurately Reflect The 1st Amendment

from the that's-much-better dept

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).

Filed Under: 1st amendment, 5th circuit, biden administration, cisa, coercion, context, jawboning, joe biden, louisiana, missouri, persuasion, pressure, rob flaherty, section 230, state department, terry doughty, threats, white house

Biden Administration’s Supreme Court Filing Over Social Media Laws Is Mostly Good, But Partly Bad

from the good,-good,-good,-good,-bad,-bad dept

This one will take a bit of background to explain where things stand. As you likely know, two years ago first Florida and then Texas each signed laws that would restrict social media companies and how they moderate content on their platforms. Both laws were quickly challenged by two trade associations for internet companies: NetChoice and CCIA. The lower courts in both states ruled against the laws, saying they were clearly unconstitutional.

On appeal, the 11th Circuit (covering Florida) upheld the lower court ruling, agreeing that it was mostly obviously unconstitutional, with one problematic exception: the court ruled that some of Florida’s “disclosure” rules were constitutional. These rules required social media companies to disclose their “moderation standards.”

On this, the court said that based on the 1985 Zauderer Supreme Court decision, states can compel speech from businesses if it’s for transparency and disclosure. However, as we discussed with Professor Eric Goldman (who wrote a whole paper on the subject), Zauderer set up a pretty clear test for when such disclosure could be mandated, and it was limited to purely factual information about advertising, and as long as the disclosure was “uncontroversial.” As we discussed with Goldman, content moderation rules meet none of those criteria. Furthermore, demanding “disclosure” of content moderation rules is effectively demanding that a media organization reveal its editorial policies.

As I’ve noted elsewhere, if a state government required a local newspaper to publish how it decided what stories would go on the front page, or what stories wouldn’t get published, the 1st Amendment problem with those laws would be somewhat obvious, in part because the 1st Amendment says it’s none of the government’s business, but more importantly because of the obvious potential chilling effects of such a rule. Such required disclosure of editorial decision making would be used to intimidate media orgs over how they choose to make editorial policy.

And, indeed, it’s the same situation with these social media laws. The true intent is to force those companies to moderate the way the state governments would like, and the “disclosure” rules are just one part of that.

So, the 11th Circuit ruling found the specific demands on how to moderate to be clearly unconstitutional, but said that the mandated transparency of “moderation standards” is possibly Constitutional (it left it open until later in the process, at least).

Meanwhile, over in the 5th Circuit, which was reviewing Texas’ law (which, again, the district court rightly tossed out as unconstitutional), we had this bizarre situation were literally days after the oral arguments, the 5th Circuit with no opinion or explanation said that it was reversing the lower court and the law should go into effect immediately. Immediately.

This resulted in an emergency plea to the Supreme Court’s shadow docket, pointing out that this was fucking crazy not just in terms of the problems with Texas’ law, but just procedurally. Perhaps surprisingly, the Supreme Court agreed and put the law back on hold. Then, a few months later, the 5th Circuit finally got around to writing up its batshit crazy ruling, overturning decades of 1st Amendment precedent and reinstating the law once again, though thankfully it agreed to hold off having the law go into effect until the Supreme Court could review it.

That set in motion a bunch of requests to the Supreme Court to hear appeals on the 5th Circuit ruling and the 11th Circuit ruling (in that case, Florida asked the Supreme Court to review the part the court said was unconstitutional, while NetChoice/CCIA asked the court to review the part that was said to be constitutional).

Given the very clear circuit split between the two courts, as well as the widespread interest (including from certain Supreme Court Justices) on this very issue, it was widely expected that of course the Court would grant cert, likely combining the two cases, and hearing the appeal. But… then the Supreme Court surprised just about everyone by taking the Gonazalez and Taamneh cases, which were also about moderation, and which very few people thought the Supreme Court would review. Hell, when those cases were finally heard, even the Supreme Court Justices appeared confused as to why they took them, leading them to effectively punt on the issue when the final opinion came out.

And “punting on the issue” is something that the Roberts Court is particularly good at, so it did that again with the Florida and Texas cases. Even as everyone expected the court to hear the appeal, it delayed everything by asking the Solicitor General to weigh in on whether or not it should hear the cases at all. As we noted at the time, there’s no reason at all for the Supreme Court to want to hear from the SG regarding whether it should hear the case, and the only reason to do this was basically to let the Supreme Court put this case off until the next term (which starts up this fall).

Finally, on Monday, the Solicitor General did what the Court had asked it to do back in January, and gave its thoughts on these cases. The brief is not surprising, and is good in some ways, but problematic in others.

On the “good” side of things, the SG says that, “yes, of course, the Supreme Court should hear the appeals” on the Constitutionality of the content moderation provisions, noting that it’s a clear circuit split:

As all parties agree, this Court should grant certiorari to resolve the lower courts’ disagreement about States’ authority to restrict a business’s ability to select, edit, and arrange the third-party content that appears on its social-media platform. Moody Pet. 8-18; Moody Br. in Resp. 31-34; Paxton Br. in Resp. 13-15. The decisions below create a square and acknowledged circuit split on that important First Amendment question. And even before that conflict emerged, this Court recognized that the question presented would likely warrant review by vacating the Fifth Circuit’s stay of the preliminary injunction in the Texas case. 142 S. Ct. 1715; see id. at 1716 (Alito, J., dissenting from grant of application to vacate stay) (“This application concerns issues of great importance that will plainly merit this Court’s review.”).

In the government’s view, the Court should grant review in both the Florida and Texas cases. Although the cases turn on the same fundamental question about the First Amendment status of the platforms’ content moderation activities, S.B. 7072 and H.B. 20 target different types of content moderation and impose different obligations. Those differences ultimately may not be material to the Court’s First Amendment analysis, but considering the two laws together would give the Court the fullest opportunity to address the relevant issues.

Also good: the Solicitor General says that the Supreme Court should uphold the 11th Circuit’s decision saying the content moderation restrictions are unconstitutional, and overturn the 5th Circuit’s decision saying otherwise:

On the merits of the content-moderation provisions, this Court should affirm the Eleventh Circuit and reverse the Fifth Circuit. When a social-media platform selects, edits, and arranges third-party speech for presentation to the public, it engages in activity protected by the First Amendment. That activity, and the platforms’ business practices more generally, are not immune from regulation. But here, the States have not articulated interests that justify the burdens imposed by the content-moderation restrictions under any potentially applicable form of First Amendment scrutiny.

It even (smartly) cites the recent 303 Creative case in making its argument. While many people were (understandably) annoyed with how that ruling played out, we had noted that the opinion was actually important for cases exactly like the NetChoice cases, and the Solicitor General realizes that as well:

Indeed, given the torrent of content created on the platforms, one of their central functions is to make choices about which content will be displayed to which users, in which form and which order. The act of culling and curating the content that users see is inherently expressive, even if the speech that is collected is almost wholly provided by users. A speaker “‘does not forfeit constitutional protection simply by combining multifarious voices’ in a single communication.” 303 Creative LLC v. Elenis, 143 S. Ct. 2298, 2313 (2023) (quoting Hurley, 515 U.S. at 569). And especially because the covered platforms’ only products are displays of expressive content, a government requirement that they display different content—for example, by including content they wish to exclude or organizing content in a different way—plainly implicates the First Amendment.

The brief also argues that the laws’ requirements for “individualized-explanations” for certain content moderation decisions is also unconstitutional:

The Fifth and Eleventh Circuits’ rulings on the individualized-explanation requirements likewise warrant review because the two courts reached conflicting results on an important First Amendment question. The Eleventh Circuit held that S.B. 7072’s requirement to provide a “‘thorough rationale’” for certain content-moderation decisions would “‘chill protected speech’” by discouraging the “exercise of editorial judgment.” Moody Pet. App. 64a-65a (brackets and citations omitted). The Fifth Circuit reached the opposite conclusion, holding that H.B. 20’s even more burdensome requirement to provide an explanation and an appeal does not chill speech. Paxton Pet. App. 96a.

This Court should grant certiorari to resolve that conflict, which is rooted in the courts’ conflicting views about whether the covered platforms’ content-moderation activities are protected by the First Amendment at all. And as with the content-moderation provisions, the Court should review both the Florida and Texas laws so that it may consider any potentially relevant differences between their requirements.

But… when it gets to the Zauderer issue regarding more general “disclosure” provisions, the Biden administration tells the Supreme Court not to hear that challenge. It doesn’t dig in on the merits, really, but effectively says “look, there’s too much other important stuff going on in this case, leave this issue for another time.”

First, the general-disclosure provisions have not been the focus of this litigation. The parties’ briefs below devoted only a few pages to those provisions, and the courts of appeals did the same. See Moody Pet. App. 62a-64a; Paxton Pet. App. 91a-95a, 97a-98a. Perhaps for that reason, neither court addressed the principal argument that NetChoice presses in this Court— that the deferential standard articulated in Zauderer v. Office of Disciplinary Council, 471 U.S. 626 (1985), should apply only in “the context of correcting misleading advertising.” Moody Cross-Pet. 30. This Court is “a court of review, not of first view,” Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005), and it should not take up issues that have received such limited attention in the lower courts.

Second, and relatedly, this Court’s review of the general-disclosure provisions would be impaired by the pre-enforcement posture of these cases and the underdeveloped state of the present record. Among other things, it would be difficult to assess the burden imposed by the general-disclosure provisions because there is no record of enforcement and because the meaning of some of those provisions remains uncertain. NetChoice observes, for example, that it does not know “whether [the covered] websites’ current publicly posted editorial policies comply with [H.B. 20’s] requirement to publish an ‘acceptable use policy’ that ‘reasonably inform[s] users.’ ” Paxton Reply Br. 11 (quoting Tex. Bus. & Com. Code Ann. § 120.052(a) and (b)(1)) (third set of brackets in original).

Third, granting certiorari on the general-disclosure provisions would further complicate what would already be a complex process of merits briefing and argument. Review of the content-moderation and individualizedexplanation provisions would itself require consideration of more than a half-dozen distinct provisions contained in two different state laws. If the Court took up the general-disclosure provisions as well, the total number of provisions at issue would be more than a dozen. And because each of the general-disclosure provisions imposes a distinct requirement, the Court’s conclusions about the burdens and interests implicated by one provision would not necessarily carry over to the others; instead, a provision-by-provision analysis would likely be necessary.

And, yes, there is some truth to the fact that this would complicate matters further, but I have a real problem with the 2nd paragraph, highlighting the pre-enforcement issue as a reason not to hear the case. There’s a reason 1st Amendment cases challenging laws often need to be challenged pre-enforcement. Because the very nature of such laws is that they create serious chilling effects on those targeted, in that impacted parties won’t even try to do what the law threatens to avoid becoming a target.

Having to wait until the law is enforced means that many websites will likely first limit their content moderation “standards,” knowing that they’ll have to be released publicly.

Furthermore, I think there’s another reason the Biden administration likely doesn’t want this line of regulatory requirement to be challenged: because the Biden administration has (unfortunately) endorsed or supported similar laws that would require disclosure of policies, often pushed by Democrats in an effort to “shame” social media companies into moderating certain types of content.

I still hope that the Supreme Court takes up all of these issues, but there’s at least a decent chance that it will agree with the SG on just taking up the core content moderation issues instead. That’s better than not taking it at all, but it will still leave the problematic part of the 11th Circuit’s ruling in place.

Filed Under: 1st amendment, biden administration, content moderation, florida, solictor general, supreme court, texas, transparency, zauderer
Companies: ccia, netchoice

Judge Says White House Can’t Get Out Of Lawsuit Over Pressuring Social Media To Moderate

from the bad-things-afoot dept

Well, this is unfortunate. Back in May of last year we wrote about how Missouri and Louisiana had sued the Biden administration, claiming “censorship” over social media based on a bunch of convoluted and nonsensical claims, most of which were about events that happened during the Trump administration.

We noted that, when viewed in the most forgiving light, the best we could make of the ridiculously poorly plead account was that they were trying to make a jawboning argument, saying that some of the administrations comments (mostly about reforming or repealing Section 230) acted as a de facto threat to social media to get those companies to silence speech. As we’ve gone into great detail about before, the Biden administration has, at times, gone stupidly close to the 1st Amendment line, but we hadn’t seen how they’d gone past it. And the initial complaint was so poorly done, and so focused on being a political document (it was brought by then Missouri Attorney General Eric Schmitt, who happily used it to grandstand on his way to being elected a US Senator last year, which is his current job), that it didn’t come close to making this argument coherently.

Also, what’s weird about the argument is that Republicans over the last few years have been angrier about Section 230, and have been louder about their threats to repeal it.

Even worse, many of the examples the complaint claimed were proof of “censorship” by the Biden administration were issues like the false claims that it tried to censor the story about the Hunter Biden laptop (which even the Twitter Files confirmed was not blocked by Twitter on behalf of any request from either the government or the Biden campaign, which wasn’t even the government anyway). The complaint also talked about Twitter’s decision to block sharing regarding the (now considered more credible) “lab leak” theory, though again, that happened during the Trump administration, not the Biden one. (Update: it turns out this argument is even dumber than I thought since it was Facebook, not Twitter who banned discussions about a “lab leak” theory).

Throughout the Fall last year, then AG/Senatorial candidate Schmitt used the case to release extremely misleading and misrepresented documents to bolster the still unproven claim of the Biden administration conspiring with social media companies to silence speech. Indeed some journalists even fell for it.

Still, as more and more papers were filed in the case, which now has a docket with well over 200 entries, it meant that perhaps the states would be able to drag the case out. And… that’s exactly what’s happened.

The district court judge, Terry Doughty, a Trump-appointed judge who somewhat famously blocked President Biden’s COVID vaccine mandate for healthcare workers, has now written a bonkers, ridiculous, laughable ruling that basically would represent a massive change in 1st Amendment doctrine if allowed to stand.

The ruling starts out badly, and then gets progressively more unhinged, taking conspiracy theories and nonsense claims that have been rejected in basically every other court, and saying “yup, sure, that sounds reasonable.”

Much of the ruling focuses on whether or not the two states even have standing to bring these claims. The court says they do, because they have “adequately” argued “injury-in-fact.” The reasons why are, frankly, boring and not worth getting into. This is also true of a few private plaintiffs who are involved in the lawsuit: in this case some well known peddlers of misleading information who were banned from Twitter, which they insist happened because of the Biden administration.

The White House pointed out (reasonably) that those still don’t qualify for standing because Twitter’s private moderation actions are not traceable to the White House because the White House had nothing to do with them. Here, the court gets, well, stupid. The judge more or less accepts conspiracy theory nonsense that the White House pressured Twitter to silence voices:

Here, however, Plaintiffs have alleged the full picture: a cohesive and coercive campaign by the Biden Administration and all of the Agency Defendants to threaten and persuade social media companies to more avidly censor so-called “misinformation.” Thus, while the Changizi plaintiffs may have left gaps in their pleadings, Plaintiffs in the current case have not. Plaintiffs have alleged, as described in detail above, a “ramping up” in censorship that directly coincides with the deboosting, shadow-banning, and account suspensions that are the subject of the Amended Complaint. And these are not mere generalizations: Plaintiffs made specific allegations showing a link between Defendants’ statements and the social-media companies’ censorship activities. While Plaintiffs acknowledge that some censorship existed before Defendants made the statements that are the subject of this case, they also allege in detail an increase in censorship, which is tied temporally to the Defendants’ actions. Thus, Plaintiffs here provide the allegations that may have been missing in the Changizi complaint.

Further, the Defendants’ reliance on Hart v. Facebook Inc., No. 22-CV-00737-CRB, 2022 WL 1427507 (N.D. Cal. May 5, 2022), is also misplaced. As in the above cases, the plaintiffs in Hart sought redress for censorship of their viewpoints on social-media platforms like Twitter and Facebook. However, the Hart court found that the plaintiff’s allegations were simply too “vague” and “implausible” to fairly connect the government officials to the actions of the social-media companies. Id. at 5. But as this Court has repeatedly noted, Plaintiffs’ Amended Complaint simply cannot be characterized as “vague.” Instead, Plaintiffs have carefully laid out the alleged scheme of censorship and how Defendants are specifically connected to and involved with it.

This reads like motivated reasoning by a judge very, very interested in justifying a result rather than showing any actual coercion.

Having said that the plaintiffs have standing, the court moves on to the 1st Amendment claims, and in a move not surprising given what’s said above, suggests that they’re legit. But does so in a weird way. After first running through the various precedents regarding jawboning, including the very recent 9th Circuit ruling that said government flagging content to Twitter is not coercive, Judge Doughty says the Biden administration’s public statements, which included no actual threats or hints at threats, were coercive!

Here, Plaintiffs have clearly alleged that Defendants attempted to convince social-media companies to censor certain viewpoints. For example, Plaintiffs allege that Psaki demanded the censorship of the “Disinformation Dozen” and publicly demanded faster censorship of “harmful posts” on Facebook. Further, the Complaint alleges threats, some thinly veiled and some blatant, made by Defendants in an attempt to effectuate its censorship program. One such alleged threat is that the Surgeon General issued a formal “Request for Information” to social-media platforms as an implied threat of future regulation to pressure them to increase censorship. Another alleged threat is the DHS’s publishing of repeated terrorism advisory bulletins indicating that “misinformation” and “disinformation” on social-media platforms are “domestic terror threats.” While not a direct threat, equating failure to comply with censorship demands as enabling acts of domestic terrorism through repeated official advisory bulletins is certainly an action social-media companies would not lightly disregard. Moreover, the Complaint contains over 100 paragraphs of allegations detailing “significant encouragement” in private (i.e., “covert”) communications between Defendants and social-media platforms.

The Complaint further alleges threats that far exceed, in both number and coercive power, the threats at issue in the above-mentioned cases. Specifically, Plaintiffs allege and link threats of official government action in the form of threats of antitrust legislation and/or enforcement and calls to amend or repeal Section 230 of the CDA with calls for more aggressive censorship and suppression of speakers and viewpoints that government officials disfavor. The Complaint even alleges, almost directly on point with the threats in Carlin and Backpage, that President Biden threatened civil liability and criminal prosecution against Mark Zuckerburg if Facebook did not increase censorship of political speech. The Court finds that the Complaint alleges significant encouragement and coercion that converts the otherwise private conduct of censorship on social media platforms into state action, and is unpersuaded by Defendants’ arguments to the contrary.

Again, at the time we noted that much of what the administration said was stupid, and they should stop their jawboning. But Judge Doughty’s reading of it as coercive seems… bizarrely wrong. I mean, if that’s accurate, then how do we judge Donald Trump’s much more aggressive threats to repeal Section 230 if social media websites didn’t moderate the way he wanted to?

The Biden Administration notes that none of their public statements about disinformation included anything anywhere near a threat, but the judge doesn’t care.

Defendants argue that Plaintiffs allege only “isolated episodes in which federal officials engaged in rhetoric about misinformation on social media platforms” and that the Complaint is “devoid” of any “enforceable threat” to “prosecute.” Further, they argue that it “is unclear how the alleged comments about amending [Section 230 of the CDA] or bringing antitrust suits could be viewed as ‘threats’ given that no Defendant could unilaterally take such actions.” The Court is unpersuaded by these arguments for several reasons. First, as explained above, any suggestion that a threat must be enforceable in order to constitute coercive state action is clearly contradicted by the overwhelming weight of authority. Moreover, the Complaint alleges that the threats became more forceful once the Biden Administrative took office and gained control of both Houses of Congress, indicating that the Defendants could take such actions with the help of political allies in Congress. Additionally, the Attorney General, a position appointed by and removable by the President, could, through the DOJ, unilaterally institute antitrust actions against social-media companies.

Again, this seems almost certainly backwards as a matter of precedent. And, if it’s accurate, I can’t wait to see how these same courts judge cases in the next GOP administration that will almost certainly go much, much further.

The ruling then gets even dumber. Despite every other court laughing away any claim that seeks to make social media companies like Twitter “state actors,” here the Court says that in this case, there is “joint action” that makes them state actors. This is again, simply wrong. It’s backwards. It’s silly. Again, the judge points to the recent 9th Circuit case that gets it right, and says “but this is different because I say so.”

Recently, in O’Handley, the United States Court of Appeals for the Ninth Circuit found no joint action where government officials flagged certain tweets as misinformation. There, the plaintiff alleged the “conspiracy approach” to joint action which requires “the plaintiff to show a ‘meeting of the minds’ between the government and the private party to ‘violate constitutional rights.’” 2023 WL 2443073, at *7 (quoting Fonda v. Gray, 707 F.2d 435, 438 (9th Cir. 1983)). The court noted that, because the “only alleged interactions are communications between the OEC and Twitter in which the OEC flagged for Twitter’s review posts that potentially violated the company’s content-moderation policy,” the plaintiff “allege[d] no facts plausibly suggesting either that the OEC interjected itself into the company’s internal decisions to limit access to his tweets and suspend his account or that the State played any role in drafting Twitter’s Civic Integrity Policy.” Id. at *8. The court described the relationship between the state officials and Twitter as a permissible “arms-length” relationship. Id. at *8 (citing Mathis v. Pac. Gas & Elec. Co., 75 F.3d 498 (9th Cir. 1996)). For the reasons explained below, the allegations here are distinguishable from those in O’Handley.

Here, Plaintiffs have plausibly alleged joint action, entwinement, and/or that specific features of Defendants’ actions combined to create state action. For example, the Complaint alleges that “[o]nce in control of the Executive Branch, Defendants promptly capitalized on these threats by pressuring, cajoling, and openly colluding with social-media companies to actively suppress particular disfavored speakers and viewpoints on social media.” Specifically, Plaintiffs allege that Dr. Fauci, other CDC officials, officials of the Census Bureau, CISA, officials at HHS, the state department, and members of the FBI actively and directly coordinated with social-media companies to push, flag, and encourage censorship of posts the Government deemed “Mis, Dis, or Malinformation.”

These allegations, unlike those in O’Handley, demonstrate more than an “arms-length” relationship. Plaintiffs allege a formal government-created system for federal officials to influence social-media censorship decisions. For example, the Complaint alleges that federal officials set up a long series of formal meetings to discuss censorship, setting up privileged reporting channels to demand censorship, and funding and establishing federal-private partnership to procure censorship of disfavored viewpoints. The Complaint clearly alleges that Defendants specifically authorized and approved the actions of the social-media companies and gives dozens of examples where Defendants dictated specific censorship decisions to social-media platforms. These allegations are a far cry from the complained-of action in O’Handley: a single message from an unidentified member of a state agency to Twitter.

I mean, basically all of that is wrong. The discussions were not coordinating “censorship.” But, among the crowd of fools that are pushing this nonsense, it’s now taken as fact. Gullible fools suckered in by their own disinformation.

There’s also a lot of complete nonsense about Section 230 in the ruling, including this:

Plaintiffs’ injuries could be redressed by enjoining Defendants from engaging in the above-discussed “other factors” that have twisted Section 230 into a catalyst for government-sponsored censorship

But that makes a huge false assumption that Section 230 has been “a catalyst for government-sponsored censorship,” which remains not shown anywhere.

The judge also makes a hop, skip, and logical mental leap, to claim that because Twitter (a private company) engaged its own private property rights to remove certain content that it felt violated its rules… this is prior restraint:

Because Plaintiffs allege that Defendants are targeting particular views taken by speakers on a specific subject, they have alleged a clear violation of the First Amendment, i.e., viewpoint discrimination. Moreover, Plaintiffs allege that Defendants, by placing bans, shadow-bans, and other forms of restrictions on Plaintiffs’ social-media accounts, are engaged in de facto prior restraints, another clear violation of the First Amendment. Thus, the Court finds that Plaintiffs have plausibly alleged their First Amendment claims.

I mean, under this kind of ruling, any government would have massive, unchecked power to force any private property owner to host any speech they want, by publicly complaining about the content, because according to this judge, at that point, if the website chooses to moderate that speech, it must be because of state action.

That’s ridiculous.

The only part of the motion to dismiss that’s granted is a very narrow part requesting an injunction directly against President Biden. But everything else targeting the administration is allowed to stand. Of course, any appeal out of this court will go up to the 5th Circuit, which is somewhat famous for its motivated reasoning in cases like these. So there’s a decent chance this ruling stands.

Again, the White House never should have said what it said and shouldn’t have even suggested it was telling social media companies how to moderate. And I’m now doubly furious because if they’d just shut the fuck up, we wouldn’t have this terrible ruling on the books. But, now we do.

Of course, it’ll be fun when there’s another Trump or DeSantis administration and they find out they’re bound by the same rules, and merely commenting on content moderation choices is seen as coercive…

Filed Under: 1st amendment, biden administration, content moderation, jawboning, joe biden, louisiana, missouri, prior restraint, section 230, state action, terry doughty
Companies: twitter

Consumer Groups Get Punchy As Biden Team Lags On Staffing FCC, Restoring Net Neutrality

from the taking-your-sweet-time dept

Tue, Jun 15th 2021 12:02pm - Karl Bode

Last December the Trump administration rushed the appointment of Nathan Simington to the FCC, despite Simington having absolutely no real experience or qualifications for the role. That’s because Simington was appointed for two other reasons. One being the silly (and utterly hypocritical if you tracked the net neutrality fights) effort by the Trump administration to try and have the FCC target Section 230, which was derailed by Trump’s election loss.

But the other purpose of Simington’s rush appointment was to ensure the FCC would be gridlocked at 2-2 commissioners. Like the FTC, the FCC is comprised of a 3-2 partisan makeup depending on who controls the White House. And while Biden could have easily appointed a new FCC Commissioner to break that gridlock, we’re now nearing six months into his tenure with no movement on this front.

Granted there are a lot of fires the Biden administration is tasked with putting out. But having a gridlocked FCC during a health and economic crisis where broadband is playing a starring role still isn’t a great look. As a result, a coalition of more than 50 consumer groups and unions wrote the Biden camp last week asking for something vaguely resembling urgency on the FCC front:

“As we move toward the second half of 2021 with no nomination for the fifth and final commissioner, the Federal Communications Commission remains below full capacity, which is incompatible with the goal of delivering open, affordable and reliable high-speed broadband to every home. This is all the more urgent given the fact poor families and people of color are disproportionately disconnected from high-speed internet access, compounding grave inequalities that were made worse during the pandemic.

Given the legislative calendar and the diminishing number of days for hearings and confirmation votes, we have reached a critical point to guarantee the agency charged with ensuring affordable communications access can do its work during your administration. Failing to nominate a fifth commissioner leaves the FCC less than fully operational and limits its capacity to most effectively.

Consumer groups are being overly polite here because they tactically need to be, but there’s no reason for this to be taking this long, even with everything on the Biden team’s plate.

I bring this up a lot, but that’s because I still see a lot of folks who seem to think the net neutrality repeal didn’t really matter much because the internet didn’t immediately implode in a rainbow of color.

But it mattered because the repeal didn’t just kill net neutrality rules, it effectively gutted the FCC’s consumer protection authority, leaving it ill-equipped to police basic things like rampant telecom industry billing fraud. It shoveled any remaining consumer protection oversight to an FTC with limited authority over telecom, and that’s too understaffed and underfunded to tack “hold telecom monopolies meaningfully accountable” on top of its existing, massive workload. It’s precisely why the telecom lobby pushed for this. And the Biden team’s lack in doing anything on this front for five+ months reflects a failure to understand any of this.

This regulatory lobotomization also occurred right before a crisis showcasing the essential nature of broadband for stuff like education, healthcare, and overall opportunity. The ridiculously named Trump/Pai “restoring internet freedom” repeal even tried to ban states from protecting broadband consumers (though the courts haven’t looked too kindly on this last part). Needles to say, the combination of limited competition and regulatory capture isn’t a good thing, and if you think it is, you’ve not spent much time on the phone with Comcast support, or trying to use an aging, expensive DSL line.

All of this also still matters because all of the justifications for the repeal, including claims of amazing job growth and ramped up broadband network investment, wound up being a lie. We effectively gutted oversight of a broken and heavily monopolized US business sector — entirely because a handful of monopolies and their various policy tendrils promised all manner of amazing outcomes. When a long parade of experts pointed out the repeal was based on bullshit and would be harmful, we… ignored them. And when the amazing promised outcomes never materialized… we ignored that too.

And while many insist that Congress should just pass a net neutrality law and end this “regulatory ping pong,” that (usually intentionally) ignores the fact that this telecom campaign-cash slathered Congress is never going to hit the 60 votes necessary to pass a law of any worth. That leaves us with a choice: either an FCC that’s too feckless and pathetic to be able to stand up to AT&T and Comcast, or an FCC that at least has the authority and voting majority to occasionally hold these giants accountable.

Filed Under: biden administration, fcc, gridlock

Senator Chris Coons Says No One Who Has Ever Criticized Intellectual Property Can Head The Patent Office

from the and-biden-agrees dept

There had been some talk that we might, once again, get someone to head the Patent Office who actually understood and appreciated the many trade-offs associated with monopoly rights around inventions. But apparently that’s not happening. There’s an article in The American Prospect saying that Senator Chris Coons — one of the more maximalist of the copyright and patent maximalists in Congress — has secured some sort of ridiculous deal with the Biden administration that no one who has ever criticized patents will be allowed to run the US Patent & Trademark Office.

Patents have not historically animated sustained intraparty fights that spill out into headlines. But Coons?s pro-IP, pro-patent stance, and his long friendship with the president, has elevated the issue, and turned the selection of the next director of the U.S. Patent and Trademark Office (USPTO) into a flashpoint. Coons has been aggressive in working with the White House to secure a director who shares his viewpoints, and his top candidates have represented patent owners as lawyers or trade group leaders. According to sources on Capitol Hill and from outside groups, Coons has claimed that he was granted the power to make the USPTO choice in exchange for staying in the Senate. Coons had been seen as a potential pick for secretary of state.

Other members of Congress, including Sen. Patrick Leahy (D-VT), chair of the Senate Judiciary Subcommittee on Intellectual Property, have stressed in their conversations with the White House the need to balance the patent system to prevent abuse. Advocates have also asked the White House to ?overrule efforts? by Coons and his allies to put forward a USPTO director nominee who is ?aligned with the pharmaceutical industry or other intellectual property maximalists.?

First, it’s not surprising that Biden would go along with this. While Biden doesn’t have much of a track record of interest on patent issues, he was reliably one of the most maximalist Senators on the copyright front — so it’s not surprising that he’d be amenable to such a deal, even as many others in his party recognize the problems with such an approach.

The title of the article is somewhat ridiculous: “Chris Coons Working to Install Business-Friendly Candidate for Key Patent Position.” Being “pro-patent” is not “pro-business.” Patents and patent trolls are quite frequently anti-business. They are anti-competitive, and frequently anti-innovation — being used to stop, block, and suppress the companies who actually make stuff (or make stuff better). It’s not pro-business to be pro-patent. It’s pro-monopoly, and pro-patent lawyer.

And here, it gets even more insane. The article notes that Coons, along with Senator Mazie Hirono, sent a truly ridiculous letter to President Biden and VP Harris, saying that no one who has criticized patents should be allowed to be the USPTO director.

… the USPTO Director serves as one of our leading ambassadors for intellectual property and innovation. A history of criticizing or weakening American intellectual property rights will undermine his or her ability to advocate for strong protections and enforcement mechanisms with our trade partners.

That’s just ridiculous. Only installing someone who has never criticized the patent system means installing a foolish, ignorant person who refuses to recognize the various trade-offs associated with the patent system. Hell, even Coons himself is a critic of the patent system. He’s introduced bills to change the patent system (notably, to change them for the worse, but still, to change them).

In the letter, Coons also makes a bunch of assertions that are simply laughable to anyone even remotely familiar with the problems of over patenting, patent abuse and patent trolls:

… the USPTO Director should understand that clear, predictable, and enforceable intellectual property protections drive economic growth, foster entrepreneurship, create jobs, and improve our quality of life. Our intellectual property systems have long enjoyed a reputation as the international gold standard, and this has allowed the United States to leverage the incredible talents of our people to lead the world in technology and creative enterprise. The USPTO Director must ensure that risk takers can access the research and development investments necessary to challenge incumbent players, bring disruptive technologies to market, and win the global race to develop the next generation of personalized medicine, clean energy technology, quantum computing, wireless communications protocols, and artificial intelligence.

Anyone who thinks that patents are what is necessary to drive any of those industries has no idea what they’re talking about. Patents and patent trolls threaten the innovation in those industries.

Of course, some of this may be in Coons’ background. His one private sector job was as in-house counsel for W.L. Gore, makers of GoreTex (I’m sure it’s a total coincidence that Coons’ stepfather founded the company). That company holds a bunch of patents and has been involved in a series of patent fights. And Coons apparently still owns millions of dollars in stock from the company.

Of course, many of those fights seems to involve accusations that W.L. Gore infringed on the patents of others — including one somewhat infamous case that literally was over four decades in the making and which did not end well for Gore. Given that experience alone, you might think that Coons would recognize that patents are a two-edged sword. And even if you support them in some circumstances, they clearly can be used as a blunt weapon against innovation and product development, and as a costly attack on innovative companies.

Separately, of course, there’s the issue that Coons represents Delaware — and while the Texas courts have become famous as patent troll breeding grounds, lots of folks know that Delaware courts also are favored by patent trolls.

The second most common venue for nonpracticing entity litigation is Delaware: It alone sees as many cases as the next six most popular venues combined ? over 20% of cases overall. And as we?ve computed using data from RPX, non-practicing entities? Delaware patent suits end with loss or dismissal only 8% of the time, a scant difference from the 4% rate in Marshall.

Either way, it’s unfortunate that his view on patents seems so skewed and so dangerous — and that he was apparently able to cut some sort of deal with the Biden administration on who should run the USPTO. An ideal leader should be one who recognizes the competing interests with patents, not someone who slavishly praises patents, even the parts that are so problematic.

The Prospect article also floats some names that Coons has been suggesting — and they include literal patent trolls and patent troll lobbyists. Which is… not a good look at all. And that he has apparently tried to shoot down two candidates who would be excellent: Colleen Chien of Santa Clara University Law School and Arti Rai of Duke University. Both have done lots of research and have written important papers on the patent system, while noting some of the problems with them. But, perhaps for those reasons, Coons is trying to block them from being appointed and make sure a patent troll or, at least, a patent troll friendly lawyer gets put in place instead.

That all of this is happening against the backdrop of a pandemic — let alone one where the overuse of patents to block vaccines and treatments has been a major concern — makes you wonder: is Coons truly interested in what’s best for American innovation… or what’s best for his W.L. Gore stock?

Filed Under: biden administration, chris coons, criticism, patent trolls, patents, uspto, uspto director
Companies: w.l. gore