vivek murthy – Techdirt (original) (raw)

from the stop-the-moral-panic dept

Can we add a warning label to the First Amendment that says “Actually reading this can cause extreme embarrassment to grandstanding politicians”?

California Attorney General, Rob Bonta, has just lost two separate cases in the Ninth Circuit regarding social media laws he strongly supported, which the court said violated the First Amendment. You would think that maybe, just maybe, he’d take a step back and brush up on how the First Amendment works, and figure out why he’s getting these fairly basic things so wrong and so unconstitutional.

Tragically, he’s not.

Just the fact that he flat out lied to the public and declared victory in one of the cases he lost should give you a sense of Bonta’s priorities in spitting on the First Amendment. But now he’s doubling down.

Earlier this week, he “called on Congress” to pass a law requiring “warning labels” on social media.

California Attorney General Rob Bonta today joined a bipartisan coalition of 42 attorneys general in sending a letter to Congress supporting the United States Surgeon General’s recent call for Congress to require a surgeon general’s warning on social media platforms. Young people are facing a mental health crisis fueled by social media. The attorneys general argue that by mandating a surgeon general’s warning on algorithm-driven social media platforms, Congress can address the growing crisis and protect future generations of Americans.

“Social media companies have continuously demonstrated an unwillingness to tackle the youth mental health crisis, instead looking to dig in deeper for the sake of profits,” said Attorney General Bonta. “Warning labels on social media are a clear and frank way to communicate the risks that social media engagement poses to young users. Just like we are certain of the risk of alcohol or cigarette use, we are certain of the mental health risks of social media use. I urge Congress to adopt this commonsense step that complements California’s work to protect our children and teens.”

The problem is that (1) this is unconstitutional, and (2) this is all nonsense. Yes, the Surgeon General called for this, but as we explained, he was also confused. His own report on the matter showed that for many kids social media is actually beneficial, and there remains no evidence that he could find that social media is inherently harmful. The actual research on this stuff continues to find no actual evidence of harm.

Study after study after study looks at this and comes up empty. At best, they find that for kids who need real mental health support and aren’t getting it, they may turn to social media and spend excess amounts of time there. But this is a small percentage of kids, who would be better served by getting the mental health support that they need and deserve.

For most others, there is no evidence of any kind of harm. And, as one of the leading researchers in this field, Candice Odgers, has pointed out, demonizing a tool that many people like to use or are expected to use, does real harm to people. It will actually make kids feel worse about themselves for doing a very natural thing and trying to communicate with friends and family.

This is a giant moral panic, no different than similar moral panics about chess, the waltz, novels, bicycles, radio, television, pinball, dungeons & dragons, rock music, and more.

And it’s making people like Bonta look incredibly foolish.

As for why it’s unconstitutional, it’s a form of compelled speech. Yes, certain kinds of mandated warning labels have been found to be okay, but only in cases when the science is absolute and incontrovertible. That’s for things like actual toxins that literally poison your bloodstream.

Speech is not that.

Mandated “warning labels” about speech are so obviously unconstitutional that it’s embarrassing. Indeed, the idea of mandatory health warnings on websites is so ridiculous that even the crazy Fifth Circuit thought they were a bridge too far for just adult content websites. Even in the case that Rob Bonta lost just last week, the court highlighted to him directly that you can’t just mandate websites add speech about content on their site.

Did he read that decision? Did he understand it? Or did he just decide he could ignore it because it was embarrassing to the moral panic he supports?

People keep telling me that Bonta is a smart, thoughtful lawyer, but over and over again he seems to have fallen sway to a ridiculous moral panic, against all evidence and against the Constitution he’s supposed to be protecting and upholding.

Even worse, this nonsense is “trickling down” elsewhere. San Mateo County, where I live, work, and pay taxes, just unanimously passed a resolution supporting Bonta’s call. It’s also home to Meta, YouTube, and where tons of employees of social media companies work.

San Mateo County, home to tech giant Meta, urged Congress to pass legislation requiring social media companies to add labels to their platforms warning people about their potential to harm users’ mental health.

The Board of Supervisors unanimously passed a resolution Tuesday, the same day 42 state attorneys general, including California’s Rob Bonta, called on Congress to address the mental health risks associated with social media.

Given where they are, you’d think that the San Mateo County Board of Supervisors would… maybe actually talk to some experts first? Hell, my office is literally blocks away from the County offices. I’d be happy to walk the Supervisors through a presentation of all of the evidence, including those found in the Surgeon General’s report, the American Psychological Association’s report, one from the National Academies of Science, and a massive meta-study from the Journal of Pediatrics.

It doesn’t show any actual causal connection for harm and actually suggests many other reasons for the teen mental health crisis today.

David Canepa, the San Mateo County Supervisor who pushed this resolution, also seems wholly unfamiliar with how the First Amendment works:

“All politics is local,” Canepa said. “For example, if there’s something racist or anti-Semitic, there needs to be a label. As the county board, we’re asking them to address this problem.”

Canepa’s offices are, again, right down the street from my own. I’d love to come by his office and have him to play Moderator Mayhem or Trust & Safety Tycoon, and then see if he still feels that (1) companies aren’t trying (because they are), or (2) that there’s some easy way to “label” such content.

This stuff is way more difficult than bumbling, ignorant, grandstanding politicians recognize. The government can no more mandate that social media place warnings on social media, than they could demand that newspapers refuse to cover their opponents in elections. The First Amendment means the government has to stay out of this stuff.

Perhaps Rob Bonta himself needs a warning label: “repeated exposure to my lack of understanding of the Constitution or the facts may cause severe eye-rolling.” Because it appears that Bonta’s misunderstanding of some fundamentals around the First Amendment are trickling down to local politicians as well.

Filed Under: 1st amendment, california, david canepa, moral panic, rob bonta, san mateo county, social media, vivek murthy, warning labels

from the none-of-this-conspiracy-theory-bullshit dept

Actual free speech survives for yet another day as the Supreme Court has rejected a bunch of fantasy-land nonsense in a case in which Trumpists were absolutely positive they’d caught the government “censoring” speech on social media. But every time we looked at the actual evidence, all we saw was “lizard people” level conspiracy theory nonsense.

We’ve talked about the Murthy v. Missouri (originally Missouri v. Biden) case for quite some time now. In this case, Missouri and Louisiana, along with a few rando nonsense peddlers online, had sued the Biden administration for supposedly convincing social media companies to remove their speech. While there were some examples of social media companies doing basic content moderation and there were examples of government officials making statements about content moderation, the case did not have any actual evidence of the government coercing websites to remove or limit the reach of the speech.

And that, as the ruling notes, is kind of the whole ballgame.

As we’ve discussed at great length, both of the following can be true: it absolutely should violate the First Amendment for government officials to threaten and coerce private parties to get them to remove speech and nothing in this case showed any form of actual coercion.

What it showed was a bunch of wild ass conjecture, ridiculously wrong claims, and laughably stupid interpretations of basic everyday content moderation and information sharing. And yet a very partisan district court judge bought every single loony claim and issued the most ridiculously stringent opinion a year ago, insisting that basically every content moderation decision on social media could be traced back to government threats, and ordering nearly all communication between the government and websites to stop.

The 5th Circuit recognized that the lower court went overboard and tried to clean things up, but issued multiple rulings that just made another mess of things. It said that many of the government agencies hadn’t coerced, but some had, and left no clear rules or any way to understand when something crossed the line. In fact, the 5th Circuit ruling was so unhelpful that while their initial ruling said that the government’s Cybersecurity and Infrastructure Security Agency (CISA) had not coerced, a few weeks later they reissued the opinion changing just one paragraph to say that it had coerced. With no explanation.

So, if you were trying to understand where that line was and what coercion was, you had no chance.

When the Supreme Court heard the case earlier this year, it seemed clear that the Justices were perplexed as to how this case even existed. Justices across the political spectrum pointed out that the record appeared to be filled with nonsense and conspiracy theories and claims that made no sense at all.

And thus we get today’s ruling that rejects the lower courts and says none of the plaintiffs have anything that conveys standing to bring the case in the first place. The lower courts should have rejected the case quickly. We’ll have a more thorough analysis of the majority opinion (which was written by Justice Barrett, and signed onto by everyone except for Alito, Thomas, and Gorsuch) later from Cathy Gellis (who filed our own amicus brief in this case).

But the simple summary is this:

A proper case or controversy exists only when at least one plaintiff “establish[es] that [she] ha[s] standing to sue.” Raines, 521 U. S., at 818; Department of Commerce v. New York, 588 U. S. 752, 766 (2019). She must show that she has suffered, or will suffer, an injury that is “concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.” Clapper v. Amnesty Int’l USA, 568 U. S. 398, 409 (2013) (internal quotation marks omitted). These requirements help ensure that the plaintiff has “such a personal stake in the outcome of the controversy as to warrant [her] invocation of federal-court jurisdiction.” Summers, 555 U. S., at 493 (internal quotation marks omitted)

The plaintiffs claim standing based on the “direct censorship” of their own speech as well as their “right to listen” to others who faced social-media censorship. Brief for Respondents 19, 22. Notably, both theories depend on the platform’s actions—yet the plaintiffs do not seek to enjoin the platforms from restricting any posts or accounts. They seek to enjoin Government agencies and officials from pressuring or encouraging the platforms to suppress protected speech in the future.

The one-step-removed, anticipatory nature of their alleged injuries presents the plaintiffs with two particular challenges. First, it is a bedrock principle that a federal court cannot redress “injury that results from the independent action of some third party not before the court.” Simon, 426 U. S., at 41–42. In keeping with this principle, we have “been reluctant to endorse standing theories that require guesswork as to how independent decisionmakers will exercise their judgment.” Clapper, 568 U. S., at 413. Rather than guesswork, the plaintiffs must show that the thirdparty platforms “will likely react in predictable ways” to the defendants’ conduct. Department of Commerce, 588 U. S., at 768. Second, because the plaintiffs request forward-looking relief, they must face “a real and immediate threat of repeated injury.” O’Shea v. Littleton, 414 U. S. 488, 496 (1974); see also Susan B. Anthony List v. Driehaus, 573 U. S. 149, 158 (2014) (“An allegation of future injury may suffice if the threatened injury is certainly impending, or there is a substantial risk that the harm will occur” (internal quotation marks omitted)). Putting these requirements together, the plaintiffs must show a substantial risk that, in the near future, at least one platform will restrict the speech of at least one plaintiff in response to the actions of at least one Government defendant. On this record, that is a tall order.

And then:

The primary weakness in the record of past restrictions is the lack of specific causation findings with respect to any discrete instance of content moderation. The District Court made none. Nor did the Fifth Circuit, which approached standing at a high level of generality. The platforms, it reasoned, “have engaged in censorship of certain viewpoints on key issues,” while “the government has engaged in a yearslong pressure campaign” to ensure that the platforms suppress those viewpoints. 83 F. 4th, at 370. The platforms’ “censorship decisions”—including those affecting the plaintiffs—were thus “likely attributable at least in part to the platforms’ reluctance to risk” the consequences of refusing to “adhere to the government’s directives.” Ibid.

We reject this overly broad assertion. As already discussed, the platforms moderated similar content long before any of the Government defendants engaged in the challenged conduct. In fact, the platforms, acting independently, had strengthened their pre-existing content-moderation policies before the Government defendants got involved. For instance, Facebook announced an expansion of its COVID–19 misinformation policies in early February 2021, before White House officials began communicating with the platform. And the platforms continued to exercise their independent judgment even after communications with the defendants began. For example, on several occasions, various platforms explained that White House officials had flagged content that did not violate company policy. Moreover, the platforms did not speak only with the defendants about content moderation; they also regularly consulted with outside experts.

This evidence indicates that the platforms had independent incentives to moderate content and often exercised their own judgment. To be sure, the record reflects that the Government defendants played a role in at least some of the platforms’ moderation choices. But the Fifth Circuit, by attributing every platform decision at least in part to the defendants, glossed over complexities in the evidence.

Indeed, the opinion calls out the lies and the fact that the lower courts took them as fact:

The Fifth Circuit relied on the District Court’s factual findings, many of which unfortunately appear to be clearly erroneous. The District Court found that the defendants and the platforms had an “efficient report-and-censor relationship.”… But much of its evidence is inapposite. For instance, the court says that Twitter set up a “streamlined process for censorship requests” after the White House “bombarded” it with such requests. Ibid., n. 662 (internal quotation marks omitted). The record it cites says nothing about “censorship requests.” See App. 639–642. Rather, in response to a White House official asking Twitter to remove an impersonation account of President Biden’s granddaughter, Twitter told the official about a portal that he could use to flag similar issues. Ibid. This has nothing to do with COVID–19 misinformation. The court also found that “[a] drastic increase in censorship . . . directly coincided with Defendants’ public calls for censorship and private demands for censorship.” 680 F. Supp. 3d, at 715. As to the “calls for censorship,” the court’s proof included statements from Members of Congress, who are not parties to this suit. Ibid., and n. 658. Some of the evidence of the “increase in censorship” reveals that Facebook worked with the CDC to update its list of removable false claims, but these examples do not suggest that the agency “demand[ed]” that it do so. Ibid. Finally, the court, echoing the plaintiffs’ proposed statement of facts, erroneously stated that Facebook agreed to censor content that did not violate its policies. Id., at 714, n. 655. Instead, on several occasions, Facebook explained that certain content did not qualify for removal under its policies but did qualify for other forms of moderation.

Over and over the majority case makes the simple point that you can’t just claim that the government was responsible for content moderation decisions without evidence:

The plaintiffs rely on allegations of past Government censorship as evidence that future censorship is likely. But they fail, by and large, to link their past social-media restrictions to the defendants’ communications with the platforms. Thus, the events of the past do little to help any of the plaintiffs establish standing to seek an injunction to prevent future harms.

The majority opinion also calls out the basic nuttery and lies of the plaintiffs over and over again. For example:

Hoft claims that his content appears on a CISA document tracking posts that various entities had flagged for the platforms as misinformation. The spreadsheet shows that a private entity, the Election Integrity Partnership—not CISA—alerted Twitter to an unidentified article from the Gateway Pundit. And the spreadsheet does not reveal whether Twitter removed or otherwise suppressed that post. This evidence does not support the conclusion that Hoft’s past injuries are likely traceable to the FBI or CISA.

The end result is the case is sent back to the lower courts with a note attached saying, effectively, “hey fuckheads, look at what actually happened here.” This has been quite a term for the Supreme Court rejecting the insane theories of the 5th Circuit (may that continue…)

In short, the Court recognized this case for what it was: utter fucking nonsense, and told the lower courts “there’s no way you could come to this conclusion based on the evidence, which shows no direct connection.”

Still, because the court rejected on standing, it means that it did nothing to actually clarify the standard for determining when so-called “jawboning” crosses the line to First Amendment-violating coercion. The Supreme Court explicitly notes:

Because we do not reach the merits, we express no view as to whether the Fifth Circuit correctly articulated the standard for when the Government transforms private conduct into state action.

All that means is that this issue is far from over. Others are going to try to bring similar cases, and eventually the Supreme Court is going to need to more clearly define the test beyond the Bantam Books case in 1963, which is a good ruling, but lacks clarity.

Perhaps in an ideal world, the Supreme Court would have given us a clear rule for determining where the line is between persuasion and coercion. But the majority recognized, correctly, that this is not the case in which to do that. The record is just so full of nonsense, and not a single plaintiff with clear standing. The larger issue will live on, and I’m sure in a year or three we’ll have another case on this issue. But for now, a sense of sanity has returned.

I’m not even going to get into the dissent from Alito, which Thomas and Gorsuch signed onto. It’s basically buying into the conspiracy theory and the wacky lower court rulings. This isn’t unexpected, especially from Alito, who tried desperately during the oral arguments to save Louisiana’s floundering Solicitor General (and just recently a former Alito clerk) who kept getting confused during the hearing.

But, thankfully, Alito couldn’t convince Kavanaugh, Barrett, or Roberts. Kavanaugh seemed to totally get it at the oral arguments, Barrett wrote this opinion, and Roberts similarly seemed perplexed at oral arguments.

And so the Supreme Court gets the basics right but punts some of the deeper issues for a later date. This means we’ll have more cases along these lines, but at least, now, one hopes that they will be focused on actual facts, not fever-dream conspiracy theories.

Filed Under: 1st amendment, amy coney barrett, cisa, conspiracy theories, content moderation, free speech, jawboning, louisiana, missouri, murthy v. missouri, standing, supreme court, vivek murthy
Companies: facebook, linkedin, meta, twitter, x

Ctrl-Alt-Speech: This Podcast May Be Hazardous To Moral Panics

from the ctrl-alt-speech dept

Ctrl-Alt-Speech is a weekly podcast about the latest news in online speech, from Mike Masnick and Everything in Moderation‘s Ben Whitelaw.

Subscribe now on Apple Podcasts, Overcast, Spotify, Pocket Casts, YouTube, or your podcast app of choice — or go straight to the RSS feed.

In this week’s round-up of the latest news in online speech, content moderation and internet regulation, Mike and Ben cover:

Surgeon General: Why I’m Calling for a Warning Label on Social Media Platforms (New York Times)
The Surgeon General Is Wrong. Social Media Doesn’t Need Warning Labels (The Daily Beast)
Anthropic calls for AI red teaming to be standardized (Fortune)
How small claims court became Meta’s customer service hotline (Engadget)
Pornhub to block five more states over age verification laws (The Verge)
New York Outlaws ‘Addictive’ Social Media Feeds For Teen Users (PC Mag)
Meta Oversight Board’s Helle Thorning-Schmidt: ‘Not all AI-generated content is harmful’ (Financial Times)

This episode is brought to you with financial support from the Future of Online Trust & Safety Fund.

Filed Under: ai, artificial intelligence, new york, oversight board, social media, surgeon general, vivek murthy
Companies: anthropic, meta, pornhub

When The Surgeon General Warned About Pac-Man

from the pac-man-caused-me-to-eat-pellets-and-chase-ghosts dept

We had a post earlier this week about the silliness of the Surgeon General’s idea for a warning on social media, and that linked to a longer piece Mike wrote about it at The Daily Beast, which talked about a similar push by former Surgeon General C. Everett Koop getting upset about video games. The excellent Pessimist’s Archive put up a whole article about that historical farce, and has given us permission to repost it here. We also recommend subscribing to the Pessimist’s Archive for a regular dose of lessons of moral panics from years past.

🗞️ News: U.S. Surgeon General Dr. Vivek Murthy published an op-ed in The New York Times advocating for a ‘_Warning Label on Social Media Platforms_’ to address possible risks to adolescent mental health. Despite the nation’s top doctor suggesting harm, the causative effects of social media on teen mental health is still uncertain, the science is not in.

🕰️ This isn’t the first time a Surgeon General jumped the gun in response to concerns about technology and children.

In 1982 then Surgeon General Dr. Everett Koop would sound a warning about the risks of video-games to youth and resulting “aberrations in childhood behavior.” He would note the risks weren’t proven, but ensured scientific proof would inevitably emerge:

“Koop said he had no scientific evidence on the effect of video games on children, but he predicted statistical evidence will be forthcoming soon.” – Associated Press report, 1982

PAC-MAN PANIC

The Surgeon General’s comments came amidst a boom in arcade machines and the first of many panics about video-games. Children would swarm the machines, feeding them coins obtained from parents: sometimes covertly. Where comic books and television were blamed for corrupting the youth in prior decades, video-games were the new boogeyman. The Surgeon General’s comments only added fuel to the fire:

Age limit laws would be proposed, one police department blamed burglaries on the rapacious demand for quarters and one Massachusetts town even outlawed the commercialization of arcade machines. Dr. Everett Koop’s implication that his opinions would soon be proven scientific fact were quickly denounced by psychologists and the burgeoning video game industry.

One industry rep. wrote to the Surgeon General saying: “Respectfully, we must remind you that your only official mandate and authority is to develop scientific evidence.” Another said emphasis should be on proven harms to kids – like cigarettes – not speculative harms. Dr. Everett Koop would in turn issue a statement that made clear these were opinions only:

“My off-the-cuff comment was not part of any prepared remarks. Nothing in my remarks should be interpreted as implying that videos are per se violent in natures, or harmful to children”

It turned out the scientific evidence didn’t emerge. In retrospect it seems clear Dr. Everett Koop – as a medical authority – had the opportunity to quell unsubstantiated panic that distracted from more empirical threats to kids – like smoking. A few years later Dr. Koop would wade into the TV violence debate, citing the 1972 Surgeon General’s Scientific Advisory Committee coming to a unanimous conclusion that violence and TV increased aggression.

That correlation is now long debunked.

Louis Anslow runs the Pessimist’s Archive, which is well worth subscribing to.

Filed Under: c. everett koop, moral panics, research, social media, video games, vivek murthy

from the this-article-may-contain-actual-evidence dept

You may have heard that yesterday the Surgeon General of the US, Vivek Murthy, announced that Congress should mandate “Surgeon General warnings” on social media, saying that it is harmful to kids. Over at the Daily Beast I went into great detail about just how far from the actual science this suggestion is.

As with video games, the more research we get on teens and social media, the less accurate the moral panic appears. In the last few years alone, we’ve seen more than one organization reach the same conclusion. The National Academies of Sciences released a comprehensive report stating that a “review of the literature did not support the conclusion that social media causes changes in adolescent health at the population level.” The American Psychological Association released a similar report, concluding: “Using social media is not inherently beneficial or harmful to young people.” Instead, it finds that when young people struggle with mental health, their online lives are often just a reflection of their offline lives.

Lots of other research has shown the same thing, yet Murthy’s call for health warnings never mentions all of this research that suggests social media is actually beneficial for many. Instead, he cites a few anecdotes of children who were bullied online. But bullying happened prior to social media, and we did not talk about putting health warnings on telephones or notepads or other forms of communication.

He does not address the potential for very real harm in following his suggestion. For example, a large meta-study in the Journal of Pediatrics, which similarly found no evidence to support social media being harmful to teen mental health, asserts that taking away places where kids can communicate without parental monitoring is the real cause of any teen mental health crisis. Based on that, social media might be one of the few remaining places that kids have a chance to be free from parental surveillance, and yet Murthy suggests it should be surveilled as well.

Hell, his recommendation even contradicts Murthy’s own report that he released a year ago. That report made it clear how helpful social media is for many kids:

Social media can provide benefits for some youth by providing positive community and connection with others who share identities, abilities, and interests. It can provide access to important information and create a space for self-expression. The ability to form and maintain friendships online and develop social connections are among the positive effects of social media use for youth. , These relationships can afford opportunities to have positive interactions with more diverse peer groups than are available to them offline and can provide important social support to youth. The buffering effects against stress that online social support from peers may provide can be especially important for youth who are often marginalized, including racial, ethnic, and sexual and gender minorities. , For example, studies have shown that social media may support the mental health and well-being of lesbian, gay, bisexual, asexual, transgender, queer, intersex and other youths by enabling peer connection, identity development and management, and social support. Seven out of ten adolescent girls of color report encountering positive or identity-affirming content related to race across social media platforms. A majority of adolescents report that social media helps them feel more accepted (58%), like they have people who can support them through tough times (67%), like they have a place to show their creative side (71%), and more connected to what’s going on in their friends’ lives (80%). In addition, research suggests that social media-based and other digitally-based mental health interventions may also be helpful for some children and adolescents by promoting help-seeking behaviors and serving as a gateway to initiating mental health care.

Yet, in Murthy’s statements this week, he completely ignores all of that evidence. He ignores any possibility of benefits from social media, not with evidence but with a few very limited anecdotes. These include concerns about his own two kids (who he notes are too young to be on social media anyway) and a few random stories of kids being bullied online.

But bullying has always existed. And yes, bullying online can take on more malignant forms due to scale and reach, but we should be focused on the specific conduct, not the clearly incorrect argument that social media is somehow inherently so harmful that it needs a warning.

What frustrates me most of all about this is that Murthy should know better than to base such big decisions on his own feels and anecdotes, especially when nearly all of the evidence disagrees with his beliefs. Murthy is supposed to be following the actual science, not getting swept up by moral panics.

In his op-ed, Murthy compares social media to cigarettes, but it’s utter nonsense to compare speech to something you actually consume. As we’ve noted in the past, social media is not lead paint, or cigarettes, or even chocolate. It’s speech.

And, importantly, speech is protected under the First Amendment. In the Daily Beast piece, I point out that Reagan’s Surgeon General C. Everett Koop kicked off the moral panic about video games in 1982 by arguing that they were harmful and addictive to children. Decades later, that moral panic resulted in California passing a law putting warning labels on video games, which was struck down by the Supreme Court for violating the First Amendment.

It strikes me as quite something that Murthy would choose to use this week to push his unconstitutional attack on free speech, when the Supreme Court is likely to rule, either this week or next, on the case bearing his own name, regarding whether or not he violated the First Amendment in trying to stifle voices on social media.

The US government should win that case for a whole long list of reasons that I’ve explained in the past, because there remains no actual evidence in the record of actual coercion by the government. But, either way, it’s still odd to pick this particular time to then push a clearly unconstitutional attack on the First Amendment in the days leading up to that decision.

In the Daily Beast, I conclude by noting that C. Everett Koop quickly admitted that his remarks regarding video games and kids were off-the-cuff, not based on science, and should not be seen as reflecting administration policy. If Murthy wants to be taken seriously, he should review the actual science and admit to his own error.

Filed Under: 1st amendment, free speech, mental health, social media, surgeon general's warning, vivek murthy

Because The Fifth Circuit Again Did Something Ridiculous, The Copia Institute Filed Yet Another Amicus Brief At SCOTUS

from the deja-brief-number-two dept

It was a busy December for the Copia Institute (and me), even just at the U.S. Supreme Court. In addition to filing (along with Bluesky and Mastodon admin Chris Riley) an amicus brief supporting NetChoice and CCIA in their combined cases, we also filed another one challenging the bizarre injunction imposed by the Fifth Circuit preventing the Biden Administration from communicating with technology companies.

Unlike in the NetChoice cases, where we supported their position, in this case, now captioned as Murthy v. Missouri, we filed in support of neither party. As we noted in our brief, we agree with the Biden Administration that the injunction is invalid and needs to be dissolved. But the interests that the Administration is seeking to vindicate – its own – are not the same as the interests we were trying to advance – namely everyone else’s, which this injunction threatens, even though no platform was ever a party to the litigation. It is also theoretically possible that the executive branch of the government could at some point exceed its constitutional bounds to pressure how others exercise their expressive rights. We disagree with the plaintiffs in this case that the executive branch so overstepped here, but would agree that if it did happen there should indeed be some remedy. But we filed this brief because no suitable remedy could ever look anything like what the Fifth Circuit came up with. Far from protecting anyone’s First Amendment rights, the Fifth Circuit itself instead became the state actor itself attacking them.

This case is separate from the NetChoice cases, but the issues raised in all of them are similar. The NetChoice cases address whether those who run Internet platforms have their own First Amendment rights in how they run them. We argued in those cases, and have argued all along, that the answer must be yes, and that just like a newspaper can choose what articles to run a platform operator must be free to choose what user expression to facilitate or moderate away. And just because some platforms are run by entire companies shouldn’t change that analysis; the same freedom that someone like Chris Riley as an individual has to run his platform as he personally wishes shouldn’t be extinguished just because lots of individuals have gotten together to decide how to run their platform together.

But that expressive freedom is violated by the Fifth Circuit’s injunction in at least two big ways. One way is similar to how the states of Florida and Texas have tried to attack that editorial freedom at issue in the NetChoice cases. In all these cases, how platforms operate their sites is ending up subject to government control. In the NetChoice cases it is by the states themselves, seeking to override the platforms’ discretion via statutes, whereas in this case it is by the courts, through the use of the injunction that inherently shapes how platforms can do their moderation. The effect in all these cases is the same: platforms are no longer free to run their sites as they see fit; instead their choices are being constrained by government interference.

Because here the upshot to the injunction is that platforms can no longer make moderation decisions if those decisions happen to agree with those ever expressed to them by someone in the executive branch of the federal government. Platforms must therefore either make their decisions in an information vacuum, without any input from agencies that may have expertise in the subject the platforms might have wanted to consult, or, in the wake of any consultation, they can only choose to do the opposite of what the agency might have suggested. Per the Fifth Circuit, any consultation would otherwise inherently taint the decision and make it something the platforms can no longer freely choose to act in accordance with.

But the injunction doesn’t just violate platforms expressive rights to operate their sites as they see fit; it also chills their petitioning rights. The petitioning right exists in large part because democracy depends on the people being able to communicate their will to those who represent them. But this injunction interferes with the ability of the public to talk to their government by inhibiting government officials from engaging in those conversations.

And they are so inhibited even if the platforms want to have those conversations. As we pointed out in the brief, the Fifth Circuit had an infantilizing view of platforms, as if it could not imagine any reason that a platform would have for engaging with executive branch agency expertise except in order to receive instructions for how to moderate in accordance with executive branch wishes. It could not conceive that a platform might want to, say, inquire with an agency with expertise in vaccines as it sought to develop a good moderation policy on medical disinformation, or one with expertise in election security when trying to develop a moderation policy addressing disinformation in that area. In the Fifth Circuit’s view all such conversations were inherently corrupt and for no other purpose than to immediately conscript the platform to do the executive agency’s bidding. And so, thanks to the injunction, platforms no longer get to have those conversations, no matter how much they would want to have them.

But if all the above wasn’t bad enough, there was another problem with the Fifth Circuit decision that we highlighted in our brief, relating to the plaintiffs and the court finding standing to even entertain their claims, let alone grant an injunction based on them. This case was weird because it was brought by an unholy alliance of both private plaintiffs and state plaintiffs. As explained above, the private plaintiffs should not have been entitled to injunctive relief by the courts: even if their rights had been violated – and as we explained in the brief, they had not been – the court shouldn’t be able to remedy a rights violation by violating the rights of someone else. But for the court to have granted the state plaintiffs, Louisiana and Missouri, standing to bring their claims against the platforms represented its own constitutional horror. After all, as states, these plaintiffs are themselves state actors. And these state actors wanted to be able to force platforms to exercise their expressive rights as they preferred. Unlike Texas and Florida in the NetChoice cases, which tried to do it themselves, here Louisiana and Missouri tried to use the courts to do it. And, bizarrely, the courts let them.

Worse, by crediting the idea that these states had their own First Amendment rights (as states!) to be vindicated in this litigation, the Fifth Circuit validated the proposition that the states were somehow entitled to co-opt platforms to advance their own speech interests. But such co-opting is not what the First Amendment allows. As we reminded the Supreme Court, its own decision in 303 Creative made clear that states did not have the power to force platforms to favor certain speech. But by allowing Missouri and Louisiana to advance claims challenging how platforms exercised their speech rights, the Fifth Circuit handed these states the very power the Supreme Court just last year reminded that they did not have.

Filed Under: 1st amendment, coercion, content moderation, free speech, jawboning, louisiana, missouri, murthy v. missouri, petitioning rights, vivek murthy

from the jawboning-and-line-drawing dept

We’ve been following the bizarre and frequently problematic case initially brought by Louisiana and Missouri against the Biden administration, claiming that the administration’s coordination with researchers and pressure on social media companies regarding how they moderate content violates the first amendment. As we’ve said for quite some time, there are legitimate and important questions about the boundaries between government officials using the bully pulpit to persuade companies to act in a certain way (allowed) and using threats to coerce companies to act in a certain way (very much not allowed).

This area of law, generally referred to as “jawboning”, is tragically underdeveloped, and while we have a few cases like Bantam Books, Okwedy v. Molinari, and Backpage v. Dart, none of them set out a clear and understandable standard for where the line is. And now it looks like this case, now dubbed Murthy v. Missouri due to how it reached the Supreme Court, may become a key case in drawing that line. I just really wish the underlying facts of the case weren’t so… pathetically stupid.

Back in July, district court Judge Terry Doughty issued what was a batshit crazy ruling that not just accepted conspiracy theory nonsense as fact, but literally involved Doughty inserting words that were never said into statements made by people in order to make his ruling make any sense. That’s a problem. But the end result was that Doughty insisted that the (admittedly stupid and haphazard) methods by which the White House urged social media companies to deal with COVID disinfo were one of the most egregious “censorship” campaigns of all time.

As we noted at the time, even if you could argue that a few moves by the White House may have edged over the persuasion/coercion line, none seemed particularly problematic or egregious. Even then, Doughty issued a big list of prohibitions that effectively made it impossible for anyone in the government to ever talk to any disinformation researcher or anyone at a social media company ever again, even if it was to discuss things like actual foreign attacks on elections. That seemed… problematic.

The case went up to the 5th Circuit, which quickly issued a ruling that scaled back the prohibitions issued by Judge Doughty, throwing out nine of the ten prohibitions as going too far, and massively scaling back the one remaining prohibition to basically just a ban on coercive actions. It also cut out three of the government defendants, though, when pressed by the plaintiffs, added one back weeks later with no explanation, just by changing one paragraph to basically say “oh yeah, CISA too.”

And while I think the 5th Circuit’s decision that rolled back nearly all of the district court’s ruling was a lot closer to reasonable, it still did not put forth any clear boundaries or rules that would allow anyone to understand where the line is drawn between illegal coercion and perfectly reasonable persuasion. The Schroedinger-like reversal on CISA as to whether it was included in the injunction or not kinda put the exclamation point on the fact that the 5th Circuit’s opinion, while citing to the rules set forth in those cases named above, really did less than nothing to clarify what the standards or tests ought to be. While it argues that it applied the 2nd Circuit’s test for jawboning, it clearly did not do that with CISA, as no clear explanation is given for whether CISA violated the law or not in the two separate rulings. In one ruling it says they obviously did not. In the other, it says they obviously did.

That’s… not giving the guidance that any test needs.

And, so the case got appealed to the Supreme Court, initially by one of the defendants, US Surgeon General Vivek Murthy (hence the new name for the case). Except even that has happened in a weird and non-standard way. Murthy went to the Supreme Court’s shadow docket to ask it to put a stay on the 5th Circuit’s ruling, which Justice Alito initially did. And while Murthy’s petition made it clear that the shadow docket petition could be quickly followed by a full cert petition, things got weird with the 5th Circuit, which initially said it was rescinding its initial decision, then said it wasn’t, then issued that new one that roped in CISA. And it wasn’t even clear what actually happened to the initial petition. Alito had given it a deadline. Then extended the deadline. And then nothing at all happened.

Until today.

The Supreme Court has issued a stay on the 5th Circuit’s injunction (which itself is a modified version of Judge Doughty’s injunction), saying that it will treat the shadow docket petition for a stay as a full cert petition and grant the petition, agreeing to hear the case shortly.

The application for stay presented to JUSTICE ALITO and by him referred to the Court is granted. The preliminary injunction issued on July 4, 2023, by the United States District Court for the Western District of Louisiana, case No. 3:22–cv–01213, as modified by the United States Court of Appeals for the Fifth Circuit on October 3, 2023, case No. 23–30445, is stayed. The application for stay is also treated as a petition for a writ of certiorari, and the petition is granted on the questions presented in the application. The stay shall terminate upon the sending down of the judgment of this Court.

But, even then things are weird. Because Justices Alito, Thomas, and Gorsuch wrote a dissent, saying they didn’t think the application for the stay should have been granted at all, arguing that the prohibitions on the government communicating with social media companies didn’t seem to present any irreparable harm, and the claims of potential chilling effects seemed only “hypothetical.”

Under a straightforward application of the test we use in deciding whether to grant a stay, the Government’s application should be denied. To obtain a stay pending the disposition of a petition for a writ of certiorari, an applicant must show, among other things, “a likelihood that irreparable harm will result from the denial of a stay.” Hollingsworth v. Perry, 558 U. S. 183, 190 (2010) (per curiam). A stay is an “extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Resources Defense Council, Inc., 555 U. S. 7, 22 (2008) (discussing the similar standard for an injunction). Thus, the Government in this case must make a “clear showing” of irreparable harm. And to do that, it is not enough to “simply sho[w] some ‘possibility of irreparable injury.’” Nken v. Holder, 556 U. S. 418, 434 (2009). A mere “‘possibility’ standard is too lenient.” Id., at 435 (quoting Winter, 555 U. S., at 22). Instead, the Government must prove that irreparable harm is “likel[y].” Hollingsworth, 558 U. S., at 190. Here, the Government’s attempts to demonstrate irreparable harm do not come close to clearing this high bar.

Instead of providing any concrete proof that “harm is imminent,” White v. Florida, 458 U. S. 1301, 1302 (1982) (Powell, J., in chambers), the Government offers a series of hypothetical statements that a covered official might want to make in the future and that, it thinks, might be chilled. Application 36–38. But hypotheticals are just that—speculation that the Government “may suffer irreparable harm at some point in the future,” not concrete proof. White, 458 U. S., at 1302 (emphasis added). And such speculation does not establish irreparable harm. Nken, 556 U. S., at 434; see also Clapper v. Amnesty Int’l USA, 568 U. S. 398, 414, n. 5 (2013) (rejecting similar speculation as insufficient to establish an Article III standing injury).

But that’s wrong. The whole point of 1st Amendment arguments around chilling effects, which are often given credence by courts on “hypothetical” scenarios, is that the lack of clarity is itself a chilling effect that will lead them not to speak, and that alone is a problem.

The three justices also claim that they don’t see how any of the scenarios the government presents would actually be barred by the 5th Circuit’s (scaled back) injunction:

Moreover, it does not appear that any of the Government’s hypothetical communications would actually be prohibited by the injunction. Nor is any such example provided by the Court’s unreasoned order. The Government claims that the injunction might prevent “the President and the senior officials who serve as his proxies” from “speak[ing] to the public on matters of public concern.” Application 36; accord, id., at 3 (suggesting that the Fifth Circuit’s decision implicates “the use of the Office’s bully pulpit to seek to persuade Americans”). The President himself is not subject to the injunction, see Missouri v. Biden, 2023 WL 6425697, *33, and in any event, the injunction does not prevent any Government official from speaking on any matter or from urging any entity or person to act in accordance with the Government’s view of responsible conduct. The injunction applies only when the Government crosses the line and begins to coerce or control others’ exercise of their free-speech rights. Does the Government think that the First Amendment allows Executive Branch officials to engage in such conduct? Does it have plans for this to occur between now and the time when this case is decided?

But all of this is wrong. First of all, the claim that Biden is not included seems wrong? The injunction is issued against “the White House,” which seems like it would include the President. But, really, the latter half is the whole problem. The 1st Amendment already bars the government from crossing that line and acting coercively. But the problem with the 5th Circuit’s injunction is that it provides no clear way to know if anyone is crossing that line. And that’s what the petition is really arguing.

If the government parties don’t know how that line is drawn, then the only way to stay on the right side of it is to over restrict themselves. And that’s the chilling effect harm that they are talking about.

And it’s bizarre that Alito, Thomas, and (especially) Gorsuch, seem unable to recognize that.

Again, it would be good to get a clear ruling with a clear explanation of a test on how you draw that line between allowed persuasion and 1st Amendment-violating coercion. One hopes that the Supreme Court will do a good job of that, but given everything about this case so far, who the hell knows how that’s actually going to play out.

Filed Under: 1st amendment, coercion, content moderation, free speech, jawboning, murthy v. missouri, persuasion, social media, supreme court, vivek murthy

5th Circuit Continues To 5th Circuit, Issues Yet Another Version Of Its Injunction, This Time Including CISA

from the the-5th-circuit-is-where-law-goes-to-die dept

Look, I don’t want to suggest that maybe the 5th Circuit’s analysis on issues in the Missouri v. Biden case is not particularly well considered, but, um, it’s not at all clear that the 5th Circuit’s analysis on the Missouri v. Biden case is well considered. After all, the original ruling made a series of embarrassing factual errors, falsely presenting comments by White House officials as being about content moderation when they were not, and failing to highlight how certain speech was coercive beyond “we think it is.” It also failed to attribute many of the comments it quoted, so it was impossible to backtrack who said what and in what context, and further failed to distinguish between different platforms who acted very differently.

Even more pointedly, one of the big criticisms of the 5th Circuit ruling was that it provided no standards for understanding what activity crossed the line from government attempts at persuasion (legal) to government attempts at coercion (not legal). It just said that the activity by the White House, FBI, and CDC were over the line and coercive, while the activity of CISA, the State Department, and NIAID were not over the line (and therefore those entities were not limited by the injunction).

This lack of clarity as to why some agencies were included in the injunction and some were excluded is part of why the White House went to the Supreme Court to ask it to put the injunction on hold.

The Supreme Court did put the ruling on hold for a few days (and then a few more days) and then… did nothing. Really. If you look at the docket for this case at the Supreme Court site, you see that Justice Alito initially stayed the 5th Circuit injunction until Friday, September 22nd at 11:59pm.

Then, on the On the 22nd, he gave himself more time, to the following Wednesday the 27th at 11:59pm.

And on the 27th… he did… nothing. Nothing at all. To date that docket has not been updated, other than by the respondents in the case (basically Louisiana and Missouri) updating the court on things. I don’t know if this is because Alito forgot about it, or thought that it didn’t matter any more? Or because of some other confusion over what the 5th Circuit did in the interim.

On September 25th, the 5th Circuit withdrew the original injunction from the 8th. On September 26th, it withdrew the order from the 25th which withdrew the order from the 8th. It was suggested that it did this upon realizing that the order from the 8th was currently under review by the Supreme Court.

So… I guess the fact that Alito has ignored the docket and let his stay expire on the 27th meant that the injunction went back into effect… and now the 5th Circuit can issue another new injunction? Because that’s what it’s done. Yesterday the 5th Circuit basically issued more or less the same injunction that it issued on the 8th… except that this time, CISA is included among the enjoined parties (which was a piece of what the states had asked for whenthey asked the 5th Circuit to review the original ruling).

But all of this is procedurally weird. Not even getting into the injunction withdrawals and withdrawal of withdrawals, this new ruling wasn’t done en banc (with all the judges) or with any oral arguments. Just with the petition from the plaintiffs and the reply from the White House.

I mean, maybe that’s how the 5th Circuit rolls, but it all seem ridiculously ad hoc.

As is the case with the new ruling, which now adds in CISA as an enjoined party. I ran the two opinions through a diff checker, and they are literally the same, except where the original ruling said that while CISA did flag content to social media websites and hold meetings with them, it wasn’t coercive, now it suddenly says that it is. With basically no explanation whatsoever.

Seriously.

The new ruling includes ONE new paragraph saying “oh yeah, CISA too.”

Next, we examine CISA. We find that, for many of the same reasons as the FBI and the CDC, CISA also likely violated the First Amendment. First, CISA was the “primary facilitator” of the FBI’s interactions with the social-media platforms and worked in close coordination with the FBI to push the platforms to change their moderation policies to cover “hack-and-leak” content. Second, CISA’s “switchboarding” operations, which, in theory, involved CISA merely relaying flagged social-media posts from state and local election officials to the platforms, was, in reality, “[s]omething more.” Roberts, 742 F.2d at 228. CISA used its frequent interactions with social-media platforms to push them to adopt more restrictive policies on censoring election-related speech. And CISA officials affirmatively told the platforms whether the content they had “switchboarded” was true or false. Thus, when the platforms acted to censor CISA-switchboarded content, they did not do so independently. Rather, the platforms’ censorship decisions were made under policies that CISA has pressured them into adopting and based on CISA’s determination of the veracity of the flagged information. Thus, CISA likely significantly encouraged the platforms’ content-moderation decisions and thereby violated the First Amendment. See Blum, 457 U.S. at 1008; Howard Gault, 848 F.2d at 555.

This replaces the following paragraph in the original ruling:

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.

There is no discussion as to why the court changed its mind. There is no discussion about the details of what made it persuasion in the first opinion, but coercion in the second opinion. There is… nothing.

To the argument that the White House made that this ruling provides them with no actionable details of how the line is drawn, the fact that the new ruling just rewrites this one paragraph, without details, to switch from “persuasion” to “coercion” is a disaster of jurisprudence.

It’s basically the 5th Circuit admitting that its decision on the difference is not driven by any test (like the rest of the opinion pretended it was setting up), but rather by its somewhat arbitrary whims.

That is not at all how courts should rule.

Beyond replacing that one paragraph with another, the opinions are effectively the same (a few other references to CISA were removed from the rest of the ruling about entities that were not violating 1st Amendment rights).

That does mean that the State Department and NIAID are still excluded from the injunction. But… it gives the government literally nothing to work from in determining what is allowed and what is stomping on people’s rights.

You have to imagine that the White House is going to turn around and go right back to Alito to say “yo, put this on hold until you can review.”

Filed Under: 1st amendment, 5th circuit, cisa, content moderation, fbi, jawboning, louisiana, missouri, niaid, samuel alito, social media, state department, supreme court, vivek murthy

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

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