5th Circuit Decides To Rehear Jawboning Case Involving Disinfo Researchers, Realizes It Can’t Do That Yet, Changes Mind Hours Later
from the the-weaponization-of-censorship dept
We’ve been covering the multi-pronged ridiculousness around the Missouri/Louisiana “jawboning” cases, regarding whether or not the White House was overstepping the bounds of the 1st Amendment and pressuring private websites to moderate in a manner they deemed appropriate.
Again, almost everything about this case is bizarre —and getting more bizarre with each move. Last night, the 5th Circuit made things dumber in a way that it probably couldn’t do (agreeing to rehear part of a case it had just decided weeks ago), and then this morning reversed itself because maybe someone realized that it couldn’t actually do that while the Supreme Court is already reviewing its decision from a few weeks ago. But it’s all still a mess and so very, very, very 5th Circuit.
First, the background:
The original theories in the case targeted the Biden administration for things that happened during the Trump administration (though it covers more than just that). The district court ruling, released on July 4th for some reason, is almost entirely disconnected from reality. It invents quotes that were not said to avoid the fact that the actual quotes say the opposite of what the judge pretends happened. It takes other quotes completely out of context to show “coercion” on content moderation decisions, even though those quotes had nothing to do with content moderation. And it banned a list of 10 activities, including the ability of the White House to communicate with disinformation researchers at universities.
We were much happier with the 5th Circuit ruling on appeal, though it still had a bunch of problems as well. It got rid of 9 out of the 10 prohibitions entirely, and greatly trimmed back the remaining prohibition, to basically just reiterate what the 1st Amendment already bars. At the same time, it cut out three entities from the prohibitions, saying that there was no evidence presented that they did anything coercive: CISA (the Cybersecurity and Infrastructure Security Agency), the State Department, and NIAID (the National Institute of Allergy and Infectious Diseases, which Anthony Fauci ran for years).
As we noted at the time, this was kind of hilarious, given that the conspiracy theorists who had filed the lawsuit kept insisting that CISA, the State Department, and Fauci were all at the center of the grand conspiracy to censor people on social media, and the 5th Circuit said “nope, nothing to see here.”
That’s not to say there weren’t problems with the 5th Circuit’s ruling. It continued to use completely out of context quotes. And (somewhat bizarrely) it includes a ton of quotes with no citations at all, so it’s impossible to see what the context is. It also makes no effort to distinguish between different social media sites, and seems to lump them all in together. The White House appealed, and as we speak the Supreme Court is considering whether or not the 5th Circuit’s injunction should go into effect or not (it’s currently on hold with an initial deadline for the Supreme Court to decide this past Friday, which Justice Alito extended until tomorrow).
Either way, the state (and their nonsense peddling co-plaintiffs) seem especially pissed that CISA was cut out of the case, as they’ve cooked up a completely alternate reality scenario in which disinformation researchers at a few universities — mainly the Stanford Internet Observatory and University of Washington — are somehow grand censors, determining what content gets pulled from social media.
I don’t know why I need to keep repeating this, but this has never ever been the case. The researchers are researchers studying the impact mis- and disinformation and how propagandistic information flows. This is useful. They have no power to censor literally anything. In the minds of some incredibly ignorant people, the programs set up by these schools, such as the Election Integrity Project or the Virality Project, are vast censorship machines. They are not. They were set up to have a single source for information sharing, which is a useful tool.
As we’ve explained ad nauseum, nothing in anything the Election Integrity Project did was about telling anyone to take down anything. The entire program was just so that people were aware of what content was being shared that might need responses from officials (things around voting date and place, etc). The proof that it had nothing to do with censorship is found in the fact that only 13% of the URLs that the EIP flagged were taken down. With 65% of the content flagged, the social media companies did literally nothing. With some, the content was “labeled.”
And even that data is distorted, because TikTok was super aggressive in pulling down lots of flagged content, meaning that for the other big sites (Facebook, Instagram, Twitter, YouTube, etc.), the amount of taken down content was likely well below 13%. On top of that, they found that those few cases where content was taken down were only in the most extreme cases, where it was just out and out fraud being pushed. Not a disagreement of opinion or political content.
I don’t know how many times it needs to be repeated, but this program was not about censorship. It had nothing to do with censorship, and was entirely about better information sharing and communications. This is a good thing.
But, the plaintiffs in this case can’t let go of the utter and complete fantasy that these researchers are government censors in disguise. So they asked the 5th Circuit to rehear the case, specifically the parts about CISA and the State Department working with researchers, again spinning fantasyland conspiracy theory nonsense:
CISA is directly involved in the EIP’s censorship activities. “CISA directs state and local officials to CIS and connected the CIS with the EIP because they were working on the same mission and wanted to be sure they were all connected.” ROA.26566 (Doc. 293, at 112). “CISA served as a mediating role between CIS and EIP to coordinate their efforts in reporting misinformation to social-media platforms, and there were direct email communications about reporting misinformation between EIP and CISA.” Id. “EIP identifies CISA as a ‘partner in government.’” Id. “The Government was listed as one of EIP’s Four Major Stakeholder Groups, which included CISA [and] the GEC.” Id. “CISA connected the CIS with the EIP because the EIP was working on the same mission,” i.e., censorship of election-related speech, “and it wanted to make sure they were all connected.” ROA.26525 (Doc. 293, at 71). “Therefore, CISA originated and set up collaborations between local government officials and CIS and between the EIP and CIS.” Id. “There were also direct email communications between the EIP and CISA about reporting misinformation.”
Again, none of that is nefarious when you understand how the EIP actually works, something that the nonsense peddlers bringing this lawsuit steadfastly refuse to learn about.
Indeed, the petition to rehear the case continues to push blatant falsehoods about the nature of the EIP. For example:
The EIP engages in mass surveillance of posts in real-time, reviewing hundreds of millions and tracking millions as potential “misinformation”: “The tickets and URLs encompassed millions of social-media posts, with almost twenty-two million posts on Twitter alone.”
This data point has been used repeatedly by nonsense peddlers to claim that the EIP reported 22 million posts to Twitter. That’s not true. The actual number was 2,890. The 22 million was the number of Twitter posts that the academic researchers studied after the election to see how disinformation, nonsense, and propaganda traveled over Twitter. It literally has nothing to do with content moderation at all, but is simply after-the-fact research looking at information on Twitter.
But, of course the 5th Circuit, in true 5th Circuit fashion, almost immediately said yes we’ll revisit this one good part of our ruling. It issued one of its favorite one line per curiam rulings to rehear this issue, meaning that we have to go through this bullshit all over again.
But… could it even do that? Especially when the Supreme Court is (as we speak) reviewing the existing 5th Circuit opinion? The answer is that it’s not supposed to do that, and it seems like an exasperated person at the 5th Circuit finally explained that to the out of control judges on the 5th Circuit this morning, because hours after last night’s one line “sure we’ll rehear it,” this morning the 5th Circuit issued a “wait, forget we said that” order, and let’s try this again:
That’s the court taking back its ruling from yesterday, which said they’d rehear the case (which they shouldn’t do at the moment the Supreme Court is already reviewing it), but instead “recalling” the mandate from September 11th. As for the request to rehear the case, rather than just agreeing to do so, it’s now asking the government parties in the case to respond to the states’ petition (which, you know, it should have done in the first place).
This is beyond amateur hour. It’s getting to the point where it’s reasonable to ask if anyone at the 5th Circuit even knows how anything works?
And the most annoying thing about all of this is that this is the real attack on the 1st Amendment. This whole fucking effort between the Attorneys General of Louisiana and Missouri (with a helping hand from Rep. Jim Jordan in the House) is serving to stifle the 1st Amendment rights of these academic researchers (who again, are not involved in anything even remotely connected to “censorship.”)
The Washington Post has a detailed article on how these lawsuits (and Jordan’s witch hunts) are basically making it impossible for academic researchers to keep studying misinformation. Their efforts are trampling on the 1st Amendment rights of these academics, and no one seems willing to speak up for their rights.
The National Institutes of Health froze a $150 million program intended to advance the communication of medical information, citing regulatory and legal threats. Physicians told The Post that they had planned to use the grants to fund projects on noncontroversial topics such as nutritional guidelines and not just politically charged issues such as vaccinations that have been the focus of the conservativeallegations.
NIH officials sent a memo in July to some employees, warning them not to flag misleading social media posts to tech companies and to limit their communication with the public to answering medical questions.
Honestly, Jordan and Missouri and Louisiana are conducting one of the most successful government censorship campaigns around, and they’re doing so by falsely claiming that they’re trying to defend the 1st Amendment and stop the weaponization of government to censor. The reality is the exact opposite.
“In the name of protecting free speech, the scientific community is not allowed to speak,” said Dean Schillinger,a health communication scientist who planned to apply to the NIH program to collaborate with a Tagalog-language newspaper to share accurate health information with Filipinos. “Science is being halted in its tracks.”
It of course should not go unnoticed that those pushing these campaigns all happen to be top GOP officials who clearly benefit from blocking the studying of disinformation — much of which seems to come from their own party and party leadership. Suppressing such research allows them to lie with impunity.
This is extremely frustrating for a variety of reasons, not the least of which is that this kind of research is incredibly important in enabling more free speech, and figuring out how counterspeech works in the so-called “marketplace of ideas.” What’s clear is that the plaintiffs in this case, along with Jim Jordan, were losing in the marketplace of ideas, and their response is to completely turn everything upside down, arguing that research and counterspeech is censorship (it’s not, it’s speech) and then getting the government to block it.
It’s a huge attack on the 1st Amendment, and it’s ridiculous that no one is reporting on it as such. And now, while we avoided disaster with the last 5th Circuit ruling, the court’s willingness to reopen this issue should be a concern to everyone — especially given how frequently the 5th Circuit has shown that it only believes Republicans deserve free speech rights, while everyone else can have their speech suppressed freely.
Filed Under: 1st amendment, 5th circuit, disinformation, eip, election integrity project, free speech, jim jordan, louisiana, marketplace of ideas, missouri, missouri v. biden, research, stanford internet observatory