Eighth Circuit Upholds Denial Of Immunity To Gov’t Officers Who Fired Staffer For Politely Asking About Masking Protocols

Legal Issues

from the shut-up,-they-explained dept

Having lost twice in a row, a handful of Missouri state clerks will now be using taxpayers’ money to pay a former government employee who had the temerity to recommend a mask mandate during the height of the COVID pandemic. (via Short Circuit)

The plaintiff, Tad Mayfield, had been a well-regarded staffer, serving as a legislative specialist while working in the assistant clerk’s office of the state House of Representatives. It was a job he had held for more than seven years before the clerk’s office fired him for daring to (respectfully) ask questions about preventative measures (or, rather, lack thereof) he felt were essential as the spread of COVID continued around the nation.

Every member of the House legislative staff was ordered to work from home in March 2020 as the first wave of infections flooded across the nation. Less than four months later, the governor of Missouri was already trying to institute some sort of “return to work” mandate — one that was accompanied by almost nothing in terms of efforts to limit contagion.

In early August, Tad Mayfield — one of the people being told to return to the office — wrote a very respectful letter raising his concerns about putting people back in close proximity while the outbreak was still far from under control. The entire letter is reproduced in the Eight Circuit Appeals Court decision [PDF], but this should give you a pretty good idea of its tone, as well as what Mayfield was requesting.

It is important to consider, Members from every district in this state are convening in our chambers and then returning to their respective communities to continue campaigning and holding fundraisers for their reelection bids, or assisting in the election of their successors. It compounds an already serious health crisis for Members to unknowingly contract or transmit COVID-19, due to the lack of a mask mandate in our Capitol, and then return home to unknowingly transmit it to their constituents. All this while hundreds if not thousands of new cases are reported in our state every day.

For the health and well-being of all who enter our Capitol, I am requesting that you, as leadership in the House and Senate, adhere to CDC guidelines and implement a mandatory face mask policy for all spaces within our Capitol, excluding the personal office spaces of Members.

None of what’s stated here can be argued. In August 2020, the state was averaging between 1,200-1,400 new cases a day. Mask mandates had been shown to limit infection. And, most undeniably, Missouri governor Mike Parsons was opposed to mask mandates in general.

Three days after his letter was sent, Mayfield was fired by the clerk’s office, supposedly due to performance issues that had somehow failed to present themselves during his previous seven years of employment.

The lower court denied immunity to the government officials and the case proceeded to trial. The jury found in favor of Mayfield and awarded him $15,000 in punitive damages on top of another $15,000 in lost wages.

The letter undeniably dealt with “issues of public concern,” the sort of thing that receives plenty of deference when it comes to First Amendment litigation. The officials tried to argue that it wasn’t Mayfield speaking up about public concerns, but rather using “public concern” as “window dressing” to disguise his reluctance to comply to a return-to-office mandate from the clerks’ office.

The Eighth Circuit says Mayfield’s personal differences with the return-to-office mandate (which were expressed privately to his immediate supervisors) have no bearing on this open letter sent to legislators, which is undeniably protected speech.

The August 3 email’s form and context do not change the result here. Mayfield sent a formal email from his work address to his elected representatives, and he sent it in the context of the COVID-19 pandemic, at a time when many staff and elected representatives were planning to convene at the state capitol. The fact that Mayfield previously shared his private concerns about COVID-19 with his superiors and human resources representative does not change the nature of the August 3 email: a public employee’s request for individual accommodation does not waive that employee’s right to later speak about a related “subject of general interest and of value and concern to the public.” See Lane, 573 U.S. at 241 (internal quotations omitted). And Defendants cite no authority indicating such a limitation exists.

There’s no “how dare you go over my head” exception the First Amendment, which is what this argument really is, even if the defendants took as much care as possible to present it as a disingenuous by a rogue employee they decided to fire because they didn’t like the things he was saying.

The sued officials also tried to claim the email sent by Mayfield had the potential to have a “substantial negative impact on the [state] House [of Representatives]” — something that would have justified the ensuing firing of the staffer. That argument is a non-starter, the Appeals Court points out, because these same officials repeatedly claimed this email played no part in their decision to fire Mayfield. You can’t have it both ways, says the Eighth, affirming the lower court’s denial of the officials’ motion to dismiss.

There’s no qualified immunity to be had, either. The law was clearly established by the time the officials decided to fire Mayfield in retaliation for his mask mandate letter.

Defendants argue that for a right to be clearly established, a plaintiff must cite cases where the speech was on the same topic (here, public health and safety), and the speech must have been made by a particular kind of employee (nonpartisan), within a particular type of government body (deliberative), and to a particular colleague (partisan leadership). But we do not require such “a case directly on point.” al-Kidd, 563 U.S. at 741; see also Hope v. Pelzer, 536 U.S. 730, 741 (2002) (“[G]eneral statements of the law are not inherently incapable of giving fair and clear warning, and . . . a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though ‘the very action in question has [not] previously been held unlawful.’” (second alteration in original) (quoting Creighton, 483 U.S. at 640)). Defendants had fair notice that terminating Mayfield for criticizing the decisions of public officials violated the First Amendment.

That’s how the government likes to read the qualified immunity doctrine. And many courts tend to agree with that interpretation. But not here — not in these two consecutive courts that have arrived at the same conclusion. The First Amendment tends to fare better than the Fourth in cases like these, but even here, it’s undeniable it’s a violation of rights to fire someone for saying something other government employees disagree with.

The officials liable for damages are playing with house money so there’s no reason to believe they won’t appeal this to the Supreme Court. But considering how few decisions the nation’s top court can be bothered to hand down these days, it would likely be another waste of time and money, even if some justices would definitely like to take a swing at creating a First Amendment exception that excludes speech they personally disagree with.

Filed Under: 1st amendment, dana miller, elijah haahr, emily white, free speech, judy kemper, missouri, missouri senate, qualified immunity, retaliation, tad mayfield

Daily Deal: The 2025 Microsoft Essential Tools Training Bundle

Deals

from the good-deals-on-cool-stuff dept

The 2025 Microsoft Essential Tools Training Bundle will help you become a Microsoft expert in no time. Courses cover Microsoft 365, Excel, Word for beginners, and Word advanced. It’s on sale for $30.

Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Filed Under: daily deal

Meta’s Moderation Modifications Mean Anti-LGBTQ Speech Is Welcome, While Pro-LGBTQ Speech Is Not

Content Moderation

from the maga-bar dept

On Monday, Taylor Lorenz posted a telling story about how Meta has been suppressing access to LGBTQ content across its platforms, labeling it as “sensitive content” or “sexually explicit.”

Posts with LGBTQ+ hashtags including #lesbian, #bisexual, #gay, #trans, #queer, #nonbinary, #pansexial, #transwomen, #Tgirl, #Tboy, #Tgirlsarebeautiful, #bisexualpride, #lesbianpride, and dozens of others were hidden for any users who had their sensitive content filter turned on. Teenagers have the sensitive content filter turned on by default.

When teen users attempted to search LGBTQ terms they were shown a blank page and a prompt from Meta to review the platform’s “sensitive content” restrictions, which discuss why the app hides “sexually explicit” content.

This is notable because, despite the moral panic around “kids and social media,” even the most ardent critics usually (reluctantly) admit social media has been incredibly useful for LGBTQ youth seeking information and community, often benefiting their health and wellbeing.

I had started to write up this article about that, planning to focus on two points. First, contrary to the popular (but false) belief that content moderation targets traditionally “conservative” speech, it very often targets traditionally “progressive” speech. We see these stories all the time, but the MAGA world either doesn’t know or doesn’t care.

Second, this seemed like a pretty strong reminder of how LGBTQ content will be on the chopping block if KOSA becomes law. Indeed, the very existence of the “sensitive content” restrictions on Meta’s platforms (including Facebook, Instagram, and Threads) was actually the company trying to comply-in-advance with KOSA, forcing all teenagers to have the “sensitive content filter” on by default.

In other words, Meta effectively revealed that, yes, of course the easiest way to abide by KOSA’s restrictions will be to restrict access to any pro-LGBTQ content.

In response to Lorenz’s story, Meta said (as it always does when one of these kinds of stories pops up) that it was “a mistake” and promised to correct it. But, as Lorenz notes, the suppression happened for quite some time, and users who tried to raise the alarm found their own posts hidden.

Some LGBTQ teenagers and content creators attempted to sound the alarm about the issue, but their posts failed to get traction. For years, LGBTQ creators on Instagram have suffered shadow bans and had their content labeled as “non-recommendable.” The restrictions on searches, however, are more recent, coming into effect in the past few months. Meta said it was investigating to find out when the error began.

“A responsible and inclusive company would not build an algorithm that classifies some LGBTQ hashtags as ‘sensitive content,’ hiding helpful and age-appropriate content from young people by default,” a spokesperson for GLAAD said. “Regardless of if this was an unintended error, Meta should… test significant product updates before launch.”

Of course, just as I was initially working on this post on Tuesday, Mark Zuckerberg dropped his whole “hey we’re kissing up to Trump by cutting back on how much we moderate” thing, which certainly changed the way I was looking at this particular story.

While I wrote more about that announcement yesterday, I didn’t cover the specific changes to the policies, as those weren’t made as clear in the initial announcement, which was more about the philosophy behind the policy changes. Kate Knibbs, at Wired, had the scoop on the specific changes within the policies, which makes it clear that Meta’s new view of “non-biased” moderation is basically “hateful people are now welcome.”

In a notable shift, the company now says it allows “allegations of mental illness or abnormality when based on gender or sexual orientation, given political and religious discourse about transgenderism and homosexuality and common non-serious usage of words like ‘weird.’”

In other words, Meta now appears to permit users to accuse transgender or gay people of being mentally ill because of their gender expression and sexual orientation. The company did not respond to requests for clarification on the policy.

Again, Meta is absolutely free to do what it wants with its policies. That’s part of its own free speech rights. And, yesterday, I explained why some of the underlying reasons for the policy changes made sense, but here they’re not just saying “hey, we’re going to be less aggressive in pulling down content,” they’re explicitly signaling “hate has a home here!”

I mean, what the fuck is this?

We do allow allegations of mental illness or abnormality when based on gender or sexual orientation, given political and religious discourse about transgenderism and homosexuality and common non-serious usage of words like “weird.”

That’s in a section saying users are not allowed to post about others’ “mental characteristics” including mental illness, but then they create that new exception to that policy.

If it wasn’t already clear that Meta’s new policies are deliberately bending over backwards to write in exceptions for MAGA culture war favorites, just take a look at the other changes Wired highlighted:

• Removing language prohibiting content targeting people based on the basis of their “protected characteristics,” which include race, ethnicity, and gender identity, when they are combined with “claims that they have or spread the coronavirus.” Without this provision, it may now be within bounds to accuse, for example, Chinese people of bearing responsibility for the Covid-19 pandemic.
• A new addition appears to carve out room for people who want to post about how, for example, women shouldn’t be allowed to serve in the military or men shouldn’t be allowed to teach math because of their gender. Meta now permits content that argues for “gender-based limitations of military, law enforcement, and teaching jobs. We also allow the same content based on sexual orientation, when the content is based on religious beliefs.”
• Another update elaborates on what Meta permits in conversations about social exclusion. It now states that “people sometimes use sex- or gender-exclusive language when discussing access to spaces often limited by sex or gender, such as access to bathrooms, specific schools, specific military, law enforcement, or teaching roles, and health or support groups.” Previously, this carve-out was only available for discussions about keeping health and support groups limited to one gender.

We noted yesterday that the larger change in direction was clearly political. The specifics here make that even clearer. As I noted, there are some legitimate rationales for cleaning up how Meta handles enforcement of its rules, as that has been a total mess. But all of these changes are not in how they handle enforcement. They’re literally all about creating exceptions to their (still in existence) hateful conduct policy to create space for the exact kinds of bigotry and hatred favored by MAGA provocateurs.

This is just confirming that Meta’s about-face is not actually about fixing a broken trust & safety enforcement program writ large, but to just rewrite the rules to allow for more cruelty and hatred towards marginalized groups disfavored by the MAGA world.

It seems like quite a choice. We’ve discussed at great length the whole “Nazi bar” concept, and this is very much a Nazi bar moment for Zuckerberg. This is not calling him a Nazi (as some will inevitably, misleadingly, whine). The whole point of the “Nazi bar” idea is that if the owner of a private space makes it clear that Nazis are welcome, then everyone else will come to realize that it’s a Nazi bar. It doesn’t matter whether or not the owners are Nazis themselves. All that matters is the public perception.

And these specific changes are very much Zuckerberg yelling “Nazis welcome!”

A couple of years ago, when Substack more or less made the same decision, my main complaint was that the company wanted to signal that it was the Nazi bar by dog whistling without coming out and admitting it outright. It’s your private property. You can run it as a Nazi bar if you want to, No one’s stopping you from doing it.

But fucking own it.

Don’t give some bullshit line about “free speech” when it’s not true. Just own what you’re doing: “we’re making a space for bigots to feel comfortable, by changing our rules to expressly cater to them, while expressly harming the marginalized groups they hate.”

That would be the honest admission. But just like Substack, Meta won’t do this, because it’s run by cowards.

Indeed, the most incredible thing in all of this is that these changes show how successful the “working the refs” aspect of the MAGA movement has been over the last few years. It was always designed to get social media companies to create special rules for their own hot button topics, and now they’ve got them. They’re literally getting special treatment by having Meta write rules that say “your bigotry, and just your bigotry, is favored here” while at the very same time suppressing speech around LGBTQ or other progressive issues.

It’s not “freedom of speech” that Zuck is bringing here. It’s “we’re taking one side in the culture war.”

In altering their policies to appease extremists, Meta is directly endangering the well-being and safety of LGBTQ users on their platforms.

As mentioned, he’s free to do that, but no one should be under any illusion that it’s a move having to do with free speech. It’s a political move to say “Nazis welcome” at a moment when it looks like the rhetorical Nazis are about to return to power.

I had mentioned yesterday that this was Zuck trying to follow Musk’s path, which makes some amount of sense. Ever since Elon took over, it’s been pretty clear that Zuck was somewhat jealous of the way in which Musk basically told anyone who didn’t like how he was running ExTwitter to fuck off.

So, it makes sense in two dimensions: (1) trying to be more like Elon in not giving in to public pressure and (2) the spineless appeasement of the new political leaders.

But it doesn’t make much sense on the one other vector that kinda matters: business. Hell, Zuckerberg rushed out Threads as a competitor to ExTwitter because people at Meta recognized how Elon’s haphazard mess of moderation had driven not just users away, but advertisers too.

Zuck may be betting that, because a slim margin of voters put MAGA in charge, advertisers and users will fall in line. But I’m guessing it’s a bet that’s going to bust in a pretty embarrassing manner before too long.

Filed Under: bias, content moderation, hate speech, hateful conduct, hateful conduct policy, lgbtq, maga, mark zuckerberg, nazi bar
Companies: facebook, instagram, meta

Kentucky Police Kill Innocent Man While Serving Warrant At Wrong Address

Failures

from the wrong-place,-wrong-time-still-means-'inside-your-own-home' dept

Is it too much to ask for cops to be better? When other government employees get the address wrong, it may mean mail delivery delays or incorrect property tax assessments. But when cops get it wrong, people end up dead.

If officers are unfamiliar with the area they’ll be serving warrants in, it would make sense to engage in a little surveillance ahead of time to ensure the deadly mistakes like these aren’t made. But they never do because the government always believes the innocent people caught off guard by truly unexpected invasions of their personal space are in the wrong for reacting in ways cops somehow still don’t expect them to react.

And yet, for the most part, officers and their employers are given a free pass for killing innocent people, so long as officers believed the person they gunned down was actually the criminal suspect they were seeking to apprehend.

Here’s yet more data showing cops can’t actually be trusted with the power they’ve been given, coming to us via (of all places) UK news agency, The Guardian.

Police in Kentucky recently shot a man to death in his home while they executed a search warrant that appears to have been intended for a different address.

Doug Harless, 63, lived in London, a southern Kentucky town of about 8,000 residents, and was killed by police officers at his home at 511 Vanzant Road on the night of 23 December. However, audio from local Laurel county emergency dispatchers – and obtained by Kentucky news stations – shows that the search warrant was intended for 489 Vanzant Road, as was repeated multiple times on a recording of the audio.

The owner of 489 Vanzant Road told news station WKYT that no one had lived at that address for months.

While the layout of the neighborhood is less than intuitive (the address 511 Vanzant doesn’t show up on Google Maps), that should have told officers to be especially careful when determining which residence housed the person they were seeking.

While 511 Vanzant doesn’t appear on the map, 489 Vanzant does. Whether or not Google Maps (or a competing product) was used to determine the approximate location of the residence is, ultimately, a non-factor here. As WKYT’s reporting shows, the addresses of both homes were clearly marked on the houses’ exteriors:

While officers repeated no less than six times they needed assistance at 489 Vanzant, the actual address (511) was staring them in the face the whole time. The only recording released of this incident comes from a nearby home’s security cameras. The camera also captured audio of the incident, which began at nearly midnight, presumably for the sole purpose of making things more dangerous for everyone involved. (Standard practice on arrest warrants is to serve them during daylight hours when most people are likely to be home. Additional justification is needed to serve warrants late at night or very early in the morning.)

The recording shows officers swarming the house, followed by a lot of cops yelling stuff… immediately followed by five police gunshots.

Immediately following this killing, the London Police released this statement, which is very much exemplary of cop-speak: the exonerative “view from nowhere” where things happened to non-cops, but not because any cop was directly responsible for the end result of these apparently inadvertent actions.

On December 23, 2024, Officers from the London Police Department were following up with an investigation which started in the city limits of London. This investigation led officers to attempt to execute a search warrant at a residence on Vanzant Road in Laurel County. While doing so, the occupant of the residence produced a firearm and pointed it at officers. The officer then responded with force, which resulted in the death of the occupant.

It’s better than saying “weapons were discharged” without specifying whose weapons and who fired them, but not by much. But “responded with force” is a cowardly way to say officers shot at the man and “resulted in death” is a very dainty way to say “officers killed the man.”

With the man dead and the only released recording showing only the outside of the (wrong) home being invaded, it’s the officers’ word against the dead man’s. And, tragically, he’s in no position to counter this narrative.

The man the cops killed was Douglas Harless, a 63-year-old resident of Lily, Kentucky. The police couldn’t even be bothered to name the person they’d killed in their press release, much less provide reporters with any information about the person they were actually going after, who obviously didn’t live at the house officers raided despite it clearly and obviously being the wrong address.

And, given the statement of the property owner in reference to 489 Vanzant (“no one [has] lived at that address for months”), there’s good reason to believe officers were relying on outdated information to locate and apprehend the suspect they were actually looking for. Whatever the case may be (and new facts will definitely be slow to arrive if this thing was botched as badly as it appears to be), this was sloppy work. But sloppy means wrist slaps for cops and the loss of life for people whose only “mistake” was being in their own homes when officers came knocking.

Filed Under: 4th amendment, kentucky, london police, police killing, wrong house

Hackers Claim To Have Compromised Data Broker Used By U.S. Government To Dodge Warrants

Privacy

from the begging-for-problems dept

Gravy Analytics, the parent company of Venntel, is like many dodgy data brokers. The company gleans vast troves of sensitive U.S. behavior and location cellphone data, then generally sells access to that data to a long line of folks. Including the U.S. government, which has increasingly turned to buying data broker data as a quick and easy end around for having to get a warrant.

Last month the FTC sued Gravy Analytics saying it routinely collects sensitive phone location and behavior data without getting the consent of consumers. This month, hackers claim to have compromised the giant surveillance company, gaining access to 17 terabytes of data, including a bunch of sensitive location data detailing the very specific movement patterns of U.S. consumers.

As the fine folks at 404 Media note, this is yet another inflection point for a super dodgy and barely regulated commercial surveillance industry at the center of scandal after scandal:

The news is a crystalizing moment for the location data industry. For years, companies have harvested location information from smartphones, either through ordinary apps or the advertising ecosystem, and then built products based on that data or sold it to others. In many cases, those customers include the U.S. government, with arms of the military, DHS, the IRS, and FBI using it for various purposes. But collecting that data presents an attractive target to hackers.

“A location data broker like Gravy Analytics getting hacked is the nightmare scenario all privacy advocates have feared and warned about. The potential harms for individuals is haunting, and if all the bulk location data of Americans ends up being sold on underground markets, this will create countless deanonymization risks and tracking concerns for high risk individuals and organizations,” Zach Edwards, senior threat analyst at cybersecurity firm Silent Push, and who has followed the location data industry closely, told 404 Media. “This may be the first major breach of a bulk location data provider, but it won’t be the last.”

We’ve long noted how the data broker space is an unregulated mess, routinely over-collecting data, selling access to any nitwit with two nickels to rub together (including foreign intelligence or criminals), and failing to generally secure it. Wired last month had a piece detailing how it was trivial to purchase U.S. troop and intelligence officer movement data as they visited sensitive U.S. locations in Germany.

An earlier scandal highlighted by Senator Ron Wyden involved the sale of abortion clinic visitor location data to right wing activists, who then targeted those vulnerable women with health care disinformation. More recently, a data broker was found to have leaked the social security numbers of 270 million Americans.

Now the one agency that actually did anything about the problem (the FTC) is about to be absolutely defanged under Trump because a handful of billionaires thought Lina Khan was being personally mean to them. Ain’t democracy grand.

The warning signs are absolutely blaring, and the entire location data sector is absolutely begging for a scandal that makes all previous scandals look like a lovely summer picnic. At which point, all of the policymakers who repeatedly refused to take consumer privacy seriously will stand around with their hands on hips in a real life version of the Spiderman meme, wondering how exactly we got here.

Filed Under: data brokers, ftc, hackers, privacy, security, surveillance, warrants
Companies: gravy analytics, venntel

Daily Deal: The Complete 2025 CompTIA Training Super Bundle by IDUNOVA

Deals

from the good-deals-on-cool-stuff dept

Prepare to sit a various CompTIA certification courses with the Complete 2025 CompTIA Certification Training Super Bundle by IDUNOVA. Over 17 courses, you’ll learn about penetration testing, network security, IT fundamentals, and more. It’s on sale for $50.

Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.

Filed Under: daily deal

The Good, The Bad, And The Stupid In Meta’s New Content Moderation Policies

Content Moderation

from the misinformation-about-disinformation dept

When the NY Times declared in September that “Mark Zuckerberg is Done With Politics,” it was obvious this framing was utter nonsense. It was quite clear that Zuckerberg was in the process of sucking up to Republicans after Republican leaders spent the past decade using him as a punching bag on which they could blame all sorts of things (mostly unfairly).

Now, with Trump heading back to the White House and Republicans controlling Congress, Zuck’s desperate attempts to appease the GOP have reached new heights of absurdity. The threat from Trump that he wanted Zuckerberg to be jailed over a made-up myth that Zuckerberg helped get Biden elected only seemed to cement that the non-stop scapegoating of Zuck by the GOP had gotten to him.

Since the election, Zuckerberg has done everything he can possibly think of to kiss the Trump ring. He even flew all the way from his compound in Hawaii to have dinner at Mar-A-Lago with Trump, before turning around and flying right back to Hawaii. In the last few days, he also had GOP-whisperer Joel Kaplan replace Nick Clegg as the company’s head of global policy. On Monday it was announced that Zuckerberg had also appointed Dana White to Meta’s board. White is the CEO of UFC, but also (perhaps more importantly) a close friend of Trump’s.

All this seems pretty damn political.

Then, on Tuesday morning, Zuckerberg posted a video about the changing content moderation practices across Meta’s various properties.

Some of the negative reactions to the video are a bit crazy, as I doubt the changes are going to have that big of an impact. Some of them may even be sensible. But let’s break them down into three categories: the good, the bad, and the stupid.

The Good

Zuckerberg is exactly right that Meta has been really bad at content moderation, despite having the largest content moderation team out there. In just the last few months, we’ve talked about multiple stories showcasing really, really terrible content moderation systems at work on various Meta properties. There was the story of Threads banning anyone who mentioned Hitler, even to criticize him. Or banning anyone for using the word “cracker” as a potential slur.

It was all a great demonstration for me of Masnick’s Impossibility Theorem of dealing with content moderation at scale, and how mistakes are inevitable. I know that people within Meta are aware of my impossibility theorem, and have talked about it a fair bit. So, some of this appears to be them recognizing that it’s a good time to recalibrate how they handle such things:

In recent years we’ve developed increasingly complex systems to manage content across our platforms, partly in response to societal and political pressure to moderate content. This approach has gone too far. As well-intentioned as many of these efforts have been, they have expanded over time to the point where we are making too many mistakes, frustrating our users and too often getting in the way of the free expression we set out to enable. Too much harmless content gets censored, too many people find themselves wrongly locked up in “Facebook jail,” and we are often too slow to respond when they do. 

Leaving aside (for now) the use of the word “censored,” much of this isn’t wrong. For years it felt that Meta was easily pushed around on these issues and did a shit job of explaining why it did things, instead responding reactively to the controversy of the day.

And, in doing so, it’s no surprise that as the complexity of its setup got worse and worse, its systems kept banning people for very stupid reasons.

It actually is a good idea to seek to fix that, and especially if part of the plan is to be more cautious in issuing bans, it seems somewhat reasonable. As Zuckerberg announced in the video:

We used to have filters that scanned for any policy violation. Now, we’re going to focus those filters on tackling illegal and high-severity violations, and for lower-severity violations, we’re going to rely on someone reporting an issue before we take action. The problem is that the filters make mistakes, and they take down a lot of content that they shouldn’t. So, by dialing them back, we’re going to dramatically reduce the amount of censorship on our platforms. We’re also going to tune our content filters to require much higher confidence before taking down content. The reality is that this is a trade-off. It means we’re going to catch less bad stuff, but we’ll also reduce the number of innocent people’s posts and accounts that we accidentally take down.

Zuckerberg’s announcement is a tacit admission that Meta’s much-hyped AI is simply not up to the task of nuanced content moderation at scale. But somehow that angle is getting lost amidst the political posturing.

Some of the other policy changes also don’t seem all that bad. We’ve been mocking Meta for its “we’re downplaying political content” stance from the last few years as being just inherently stupid, so it’s nice in some ways to see them backing off of that (though the timing and framing of this decision we’ll discuss in the latter sections of this post):

We’re continually testing how we deliver personalized experiences and have recently conducted testing around civic content. As a result, we’re going to start treating civic content from people and Pages you follow on Facebook more like any other content in your feed, and we will start ranking and showing you that content based on explicit signals (for example, liking a piece of content) and implicit signals (like viewing posts) that help us predict what’s meaningful to people. We are also going to recommend more political content based on these personalized signals and are expanding the options people have to control how much of this content they see.

Finally, most of the attention people have given to the announcement has focused on the plan to end the fact-checking program, with a lot of people freaking out about it. I even had someone tell me on Bluesky that Meta ending its fact-checking program was an “existential threat” to truth. And that’s nonsense. The reality is that fact-checking has always been a weak and ineffective band-aid to larger issues. We called this out in the wake of the 2016 election.

This isn’t to say that fact-checking is useless. It’s helpful in a limited set of circumstances, but too many people (often in the media) put way too much weight on it. Reality is often messy, and the very setup of “fact checking” seems to presume there are “yes/no” answers to questions that require a lot more nuance and detail. Just as an example of this, during the run-up to the election, multiple fact checkers dinged Democrats for calling Project 2025 “Trump’s plan”, because Trump denied it and said he had nothing to do with it.

But, of course, since the election, Trump has hired on a bunch of the Project 2025 team, and they seem poised to enact much of the plan. Many things are complex. Many misleading statements start with a grain of truth and then build a tower of bullshit around it. Reality is not about “this is true” or “this is false,” but about understanding the degrees to which “this is accurate, but doesn’t cover all of the issues” or deal with the overall reality.

So, Zuck’s plan to kill the fact-checking effort isn’t really all that bad. I think too many people were too focused on it in the first place, despite how little impact it seemed to actually have. The people who wanted to believe false things weren’t being convinced by a fact check (and, indeed, started to falsely claim that fact checkers themselves were “biased.”)

Indeed, I’ve heard from folks at Meta that Zuck has wanted to kill the fact-checking program for a while. This just seemed like the opportune time to rip off the band-aid such that it also gains a little political capital with the incoming GOP team.

On top of that, adding in a feature like Community Notes (née Birdwatch from Twitter) is also not a bad idea. It’s a useful feature for what it does, but it’s never meant to be (nor could it ever be) a full replacement for other kinds of trust & safety efforts.

The Bad

So, if a lot of the functional policy changes here are actually more reasonable, what’s so bad about this? Well, first off, the framing of it all. Zuckerberg is trying to get away with the Elon Musk playbook of pretending this is all about free speech. Contrary to Zuckerberg’s claims, Facebook has never really been about free speech, and nothing announced on Tuesday really does much towards aiding in free speech.

I guess some people forget this, but in the earlier days, Facebook was way more aggressive than sites like Twitter in terms of what it would not allow. It very famously had a no nudity policy, which created a huge protest when breastfeeding images were removed. The idea that Facebook was ever designed to be a “free speech” platform is nonsense.

Indeed, if anything, it’s an admission of Meta’s own self-censorship. After all, the entire fact-checking program was an expression of Meta’s own position on things. It was “more speech.” Literally all fact-checking is doing is adding context and additional information, not removing content. By no stretch of the imagination is fact-checking “censorship.”

Of course, bad faith actors, particularly on the right, have long tried to paint fact-checking as “censorship.” But this talking point, which we’ve debunked before, is utter nonsense. Fact-checking is the epitome of “more speech”— exactly what the marketplace of ideas demands. By caving to those who want to silence fact-checkers, Meta is revealing how hollow its free speech rhetoric really is.

Also bad is Zuckerberg’s misleading use of the word “censorship” to describe content moderation policies. We’ve gone over this many, many times, but using censorship as a description for private property owners enforcing their own rules completely devalues the actual issue with censorship, in which it is the government suppressing speech. Every private property owner has rules for how you can and cannot interact in their space. We don’t call it “censorship” when you get tossed out of a bar for breaking their rules, nor should it be called censorship when a private company chooses to block or ban your content for violating its rules (even if you argue the rules are bad or were improperly enforced.)

The Stupid

The timing of all of this is obviously political. It is very clearly Zuckerberg caving to more threats from Republicans, something he’s been doing a lot of in the last few months, while insisting he was done caving to political pressure.

I mean, even Donald Trump is saying that Zuckerberg is doing this because of the threats that Trump and friends have leveled in his direction:

I raise this mainly to point out the ongoing hypocrisy of all of this. For years we’ve been told that the Biden campaign (pre-inauguration in 2020 and 2021) engaged in unconstitutional coercion to force social media platforms to remove content. And here we have the exact same thing, except that it’s much more egregious and Trump is even taking credit for it… and you won’t hear a damn peep from anyone who has spent the last four years screaming about the “censorship industrial complex” pushing social media to make changes to moderation practices in their favor.

Turns out none of those people really meant it. I know, not a surprise to regular readers here, but it should be called out.

Also incredibly stupid is this, which we’ll quote straight from Zuck’s Threads thread about all this:

That’s Zuck saying:

Move our trust and safety and content moderation teams out of California, and our US content review to Texas. This will help remove the concern that biased employees are overly censoring content.

There’s a pretty big assumption in there which is both false and stupid: that people who live in California are inherently biased, while people who live in Texas are not. People who live in both places may, in fact, be biased, though often not in the ways people believe. As a few people have pointed out, more people in Texas voted for Kamala Harris (4.84 million) than did so in New York (4.62 million). Similarly, almost as many people voted for Donald Trump in California (6.08 million) as did so in Texas (6.39 million).

There are people with all different political views all over the country. The idea that everyone in one area believes one thing politically, or that you’ll get “less bias” in Texas than in California, is beyond stupid. All it really does is reinforce misguided stereotypes.

The whole statement is clearly for political show.

It also sucks for Meta employees who work in trust & safety, who want access to certain forms of healthcare or want net neutrality, or other policies that are super popular among voters across the political spectrum, but which Texas has decided are inherently not allowed.

Finally, there’s this stupid line in the announcement from Joel Kaplan:

We’re getting rid of a number of restrictions on topics like immigration, gender identity and gender that are the subject of frequent political discourse and debate. It’s not right that things can be said on TV or the floor of Congress, but not on our platforms.

I’m sure that sounded good to whoever wrote it, but it makes no sense at all. First off, thanks to the Speech and Debate Clause, literally anything is legal to say on the floor of Congress. It’s like the one spot in the world where there are no rules at all over what can be said. Why include that? Things could literally be said on the floor of Congress that would violate the law on Meta platforms.

Also, TV stations literally have restrictions known as “standards and practices” that are way, way, way more restrictive than any set of social media content moderation rules. Neither of these are relevant metrics to compare to social media. What jackass thought that using examples of (1) the least restricted place for speech and (2) a way more restrictive place for speech made this a reasonable argument to make here?

In the end, the reality here is that nothing announced this week will really change all that much for most users. Most users don’t run into content moderation all that often. Fact-checking happens but isn’t all that prominent. But all of this is a big signal that Zuckerberg, for all his talk of being “done with politics” and no longer giving in to political pressure on moderation, is very engaged in politics and a complete spineless pushover for modern Trumpist politicians.

Filed Under: automation, california, content moderation, donald trump, fact checking, joel kaplan, mark zuckberberg, texas, trust & safety
Companies: facebook, meta