Techdirt has been writing about “evergreening” for many years. It refers to the practice by pharmaceutical companies of making small changes to a drug, often about to come off patent, in order to gain a new patent that extends its manufacturer’s monopoly control over it. The New York Times has a story about the Big Pharma company Gilead Sciences that involves evergreening, but with a twist.
It concerns the drug tenofovir, which is used for treating HIV. Its patent expired in 2017, and Gilead naturally worked on a replacement that would extend its patent monopoly beyond that date. But Gilead stopped work on the new version in 2004. At the time, the company’s press release explained this was because it didn’t have “a profile that differentiates it to an extent that supports its continued development.” That’s a rather implausible excuse, since the technique of patent evergreening is based on the idea that even tiny changes to a drug justify granting a new patent. Drawing on “a trove of internal documents made public in litigation against the company,” The New York Times says there was another reason why work on the new version was halted:
The promising drug, then in the early stages of testing, was an updated version of tenofovir. Gilead executives knew it had the potential to be less toxic to patients’ kidneys and bones than the earlier iteration, according to internal memos unearthed by lawyers who are suing Gilead on behalf of patients.
Despite those possible benefits, executives concluded that the new version risked competing with the company’s existing, patent-protected formulation. If they delayed the new product’s release until shortly before the existing patents expired, the company could substantially increase the period of time in which at least one of its H.I.V. treatments remained protected by patents.
Despite those 2004 concerns over its “profile”, Gilead did introduce the new version, but just a couple of years before the 2017 expiry of the patent on the original version. As The New York Times notes, that was nearly a decade after it could have been made available had work on the new version not been paused. Because of this delay, Gilead has patents on its HIV drug that will run until at least 2031.
The delayed release is now the subject of state and federal lawsuits in which around 26,000 patients, who took Gilead’s older version of tenofovir, claim that the company exposed them to kidney and bone problems that could have been avoided. The company denies this:
In court filings, Gilead’s lawyers said that the allegations were meritless. They denied that the company halted the drug’s development to increase profits. They cited a 2004 internal memo that estimated Gilead could increase its revenue by $1 billion over six years if it released the new version in 2008.
But that makes no sense. Why would a canny Big Pharma company forgo an estimated $1 billion in revenue for apparently no reason? It certainly wasn’t because the new version’s “profile” was unsuitable, as its subsequent successful launch proves. Its hard not to see this as a calculated move to maximize sales and profits based on the (correct) assumption that drug prices would continue to rise strongly, making an extended patent monopoly even more valuable than a truncated one.
The move has certainly paid off for Gilead, but not for people with HIV. If the new version had been patented back in 2004, it would be coming off patent soon, which would mean cheap generics would be available, widening access to the drug. Moreover, as the lawsuits note, people would have been spared the serious consequences of taking a drug for years that had toxic effects on their bodies.
This is not the first example of Gilead behaving badly with its HIV drug. Back in 2019 Techdirt wrote about how Gilead was charging $24,000 annually per patient for a treatment, based on tenofovir, that was developed with US taxpayer money, and even patented by the US government. The cost of producing the treatment? Just $60 annually per patient.
“Probable cause on four legs.” That’s the nickname for drug dogs, which give cops permission to perform searches just by performing a neat little trick cops call an “alert.” What constitutes an “alert” is pretty much up to the dog’s handler, who can claim any movement is the drug dog detecting contraband or (deliberately or inadvertently) prompt “alerts” just by being near the dog when the sniff of a car is performed.
But these dogs are working their way out of a job in Idaho. A case we covered in 2021 dealt with an Idaho Supreme Court decision ruling it was possible for drug dogs to violate the Fourth Amendment if their sniffing actions got a little bit too intrusive.
That case dealt with a March 2019 traffic stop, during which this occurred:
During the hearing on the motion, Howard argued Pico [the drug dog] momentarily put his nose through the open window of the car before giving his final, trained response to indicate the presence of illegal drugs, and that this was a trespass constituting an unlawful search in violation of his Fourth Amendment rights under United States v. Jones.
The conclusion reached cited the Jones decision, as well as recently developed case law involving the chalking of car tires for parking enforcement reasons.
Like the marking of chalk on a car tire’s tread, a dog’s nose passing through an open window is a minimal interference with property. But the right to exclude others from one’s property is a fundamental tenet of property law, and we see no room in the Jones test for a de minimis exception.
A drug dog can sniff, but it must remain outside of the car. Not only that, but, according to the Idaho state Supreme Court, it must not touch the car. This case dealt with another drug dog intrusion during another traffic stop — this one performed a few months later, in August 2019.
This is the upshot of that 2023 state Supreme Court decision [PDF]:
For the reasons discussed below, a “search” occurs when a drug dog trespasses against the exterior of a vehicle during a “free air” sniff if its physical contact with the vehicle amounts to “intermeddling” at common law. In this case, a drug dog intermeddled with Dorff’s vehicle when it jumped onto the driver side door and window, planted two of its paws, and sniffed the vehicle’s upper seams. Accordingly, law enforcement conducted a warrantless and unlawful “search” of Dorff’s vehicle by way of its drug dog.
Idaho’s top court said even this minimal intrusion was still an intrusion, under both state law and the US Constitution. Inadvertent contact may not be a violation, but more intentional contact definitely is.
Intermeddling is the difference between someone who brushes up against your purse while walking by—and someone who, without privilege or consent, rests their hand on your purse or puts their fingers into your purse before your eyes or behind your back. It is also the difference between a dog’s tail that brushes against the bumper of your vehicle as it walks by—and a dog who, without privilege or consent, approaches your vehicle to jump on its roof, sit on its hood, stand on its window or door—or enter into your vehicle, see, e.g., Randall, 169 Idaho at 368–69, 496 P.3d at 854–55; Howard, 169 Idaho at 382, 496 P.3d at 868
“Open air” sniffs do not violate the Fourth Amendment. But closing that gap to make the air far less open does.
Idaho’s government — acting on behalf of the state’s law enforcement officers — is appealing this decision. It has petitioned the US Supreme Court to overturn the state’s ruling in hopes of allowing officers to continue to engage in intrusive drug dog searches without having to worry about their evidence being tossed or being sued for violating constitutional rights. The USA Today’s coverage of this petition does not include the petition for some reason, but does include this quote from a supposed expert who claims the actions of drug dogs are uncontrollable.
Don Slavik, executive director of the United States Police Canine Association, said K-9 dogs sometimes stand on hind legs and put their front legs on a car for balance as they’re chasing a scent.
“Dogs are used to detect odors because of their unique ability to follow a trained odor to its source,” Slavik said. “Once the dog detects the trained odor, it will follow the scent to the source or come as close as possible to it.”
Weird. I thought drug dogs were highly trained and handled by skilled professionals. You’d think this combination of training and expertise could prevent (or at least curb) this sort of spontaneous activity during open air sniffing.
The state will need a better argument than the “what can you do” shrug presented here. It’s own Supreme Court petition [PDF] notes the state Supreme Court has already rejected the “dog might need to balance itself or whatever” claims presented during the criminal trial.
The Idaho Supreme Court also rejected the reasoning that Nero’s actions in putting his paws on the car were not attributable to the police or Government, citing prior Idaho precedent so holding and also reasoning that an owner of an animal is responsible for its trespasses.
That last part is just common sense. If a citizen’s dog runs into another yard and causes damage or bites someone, it’s the dog’s owner that’s held responsible. And regular people aren’t dog-handling professionals, like the officers in this case.
The USA Today speculates the Supreme Court will probably “handle” the petition during its fall session. But how it’s handled will matter. The Supreme Court hasn’t been handling much lately, preferring to use its shadow docket to dispense with cases it doesn’t feel are worthy of its healthy amount of time, but limited amount of interest. Whether this is one of the cases the Supreme Court wants to actually spend some time hearing remains to be seen, but in recent months, the nation’s top court has preferred to focus on cases that roll back long-held rights, rather than increase the coverage of existing rights by applying them to new question of law.
But, for now, it’s paws-off when doing drug sniffs in Idaho. And if cops can’t control their dogs, they’re going to see a lot of slam dunk prosecutions coming to evidentiary dead-ends.
A few years back we had an article about the “The Green Smoothie Girl” aka Robyn Openshaw, who went on this weird SLAPPy binge of threatening people who left negative reviews of her brand of woo woo nonsense. Apparently since that time, Openshaw went down the unsurprising path of being a COVID anti-vaxxer (natch) and more recently had to admit to having lied about having a Ph.D.
Anyway… over on exTwitter, the account @this_is_mallory has been reporting on/debunking misinformation being spread by “wellness influencers.” On Friday Mallory pointed out that someone going by the name of “Samantha Lotus” who claims to be a “Holistic Master Coach and Human Optimization Specialist” was claiming that optometrists are lying to you and you don’t need glasses.
(FWIW, claims about eye exercises preventing the need for glasses go way back — I remember seeing it get a surge of interest about 20 years ago, and even remember getting a book out of the library to read about it. But the science on it is… weak. There are many extreme claims that have not been backed up by randomized trials, and the general consensus is that if (big if) they help at all, they may only help to delay the need for glasses/contacts in a few cases, but won’t actually help with the vast majority of the causes of needing corrective lenses).
Either way, Malory decided to spend her Saturday watching Samantha Lotus’s “Vision Healing Masterclass,” in which she’s supposed to learn how to ditch her glasses, for which she paid $11. And, of course, she decided to share her experience online.
The thread is long, and well done. It’s funny and calls out a lot of nonsense. Here’s a quick snippet of a couple of the tweets:
Apparently, having bad eyesight is just a state of mind!
It goes on. There’s a lot of the, well, typical “holistic wellness” nonsense, before it apparently turns into something of an advertisement for some “essential oils” company called “DoTerra,” (lol) which Mallory suggests may have been the real point of this all along.
Anyway, it’s a pretty long and somewhat damning thread, with a bunch of screenshots and a few short videos, all with lots and lots of commentary, critique, and criticism.
Still, the thread went viral, and then the media picked up on it as well. Daily Beast had a story about it. Daily Dot had a story about it. And, apparently, Samantha Lotus was none too pleased about it.
None of the stuff above would turn this into a Techdirt story. What does turn this into a Techdirt story is this:
That’s Samantha saying that she’s going to be “addressing MALLORY by my lawyers for her intellectual property infringements and defamation.” Now, I’ve gone through the whole damn thread and there’s nothing that comes even remotely close to a copyright violation or defamation. This is a blatant SLAPP threat to try to silence Mallory.
She also sent Mallory a more direct threat, though if it was legit, it would have come from a lawyer, not herself (same thing that happened with the Green Smoothie Girl.”
From there, Samantha Lotus got super icky and stalkery. Mallory reported that Lotus found Mallory’s private Facebook account, as well as her private Instagram account, where she noted that they have some mutual friends. Oh, and also her LinkedIn.
Now, the one complicating factor is that it’s possible both Mallory and Samantha are in Canada (Mallory definitely is, and while Samantha took down her website Sunday evening, her YouTube also says her location is Canada). Canada’s protections for speech are… not nearly as strong as the US’s are. Still, I spoke with a Canadian copyright lawyer who said this likely would still pass the “fair dealing” standard in Canada, even though it’s somewhat weaker than the US’s fair use.
Defamation law in Canada is also dumber than in the US (Canada explicitly rejected a US “actual malice” standard), but it’s not as bad as in the UK or Australia. Truth is a defense, as is “fair comment.” But a defamation case is more burdensome on defendants in Canada than in the US. So, SLAPP suits can be much more effective.
British Columbia (where Mallory appears to live) recently got an anti-SLAPP law, which might also help protect Mallory, should Samantha Lotus actually get a lawyer to act. Just a few months ago, Canada’s Supreme Court actually ruled in favor of a defamation case being dismissed under BC’s anti-SLAPP law, which also bodes well for Mallory.
Anyway, if seeing clearly is merely a state of mind, one hopes that Samantha Lotus might try to sit quietly, apply some essential oils, and… consider that maybe threatening to sue someone and getting all stalkery on them might, just possibly, attract a bit more negative attention to your woo woo nonsense peddling “masterclass.”
The ends aren’t always supposed to justify the means. And a federal agency that already raised the hackles of defense lawyers around the nation during a CSAM investigation probably shouldn’t be in this much of hurry to start sending out unsolicited software to unknowing recipients.
But that’s the way things work now. As a result of the DOJ-propelled push to change Rule 41 jurisdiction limitations, the FBI is now able to infect computers anywhere in the United States using a single warrant. In the “Playpen” case, the software was used to obtain information about users and devices visiting a seized (but still live) dark web CSAM site.
A couple of years later, the lack of jurisdiction limitations were used for something a bit more useful for even innocent computer users: the FBI secured a single warrant authorizing it to send its botnet-battling software to computers all over the nation, resulting in the disinfection of thousands of computers.
And while this all seems like a net positive for US computer users, the underlying facts are a bit more worrying: judges will allow the FBI to place its software on any user’s computer at any time, provided it can convince a court the end result will be something other than a massive number of privacy violations.
It’s inarguable that disrupting botnets is a public good. But is it inarguable that disruption should occur by any means necessary… or, at least, any means convenient. The disruption of another botnet has been achieved with the assistance of the FBI, a federal judge, and some government software deployed without notification to an unknown number of infected devices.
The FBI quietly wiped malicious programs from more than 700,000 computers around the world in recent days, the agency said Tuesday, part of an operation to take down a major component of the cybercrime ecosystem.
[…]
The FBI got a court’s permission to proceed with the operation on Aug. 21, according to a copy of the warrant. Agents proceeded to hack into Qakbot’s central computer infrastructure four days later, the FBI announced, and forced it to tell the computers in its botnet to stop listening to Qakbot.
An unnamed FBI “source” added this:
Victims will not be notified that their devices had been fixed or that they had ever been compromised, he said.
All of that was accomplished with a five-page warrant [PDF] that doesn’t have much to say about the probable cause compelling this invasion of users’ computers. The warrant authorized the FBI to, in effect, “search” every computer it sent its software to.
PROPERTY TO BE SEARCHED This warrant applies to the electronic storage media contained in victim computers located in the United States onto which malicious cyber actors have installed, without authorization, the Qakbot malware, and which computers are in communication with the Qakbot botnet infrastructure.
What’s not immediately clear is how the FBI determined which computers were infected. Instead, it seems to authorize an intrusion into all computers it could access, with infections determined following the mass search.
The warrant says “remote access techniques may be used:”
To search the electronic storage media identified in Attachment A [PROPERTY TO BE SEARCHED, as shown above] and to seize or copy from those media any electronically stored information, such as encryption keys and server lists, used by the administrators of the Qakbot botnet to communicate with computers that are part of the Qakbot botnet infrastructure; and
To search the electronic storage media identified in Attachment A and to seize or copy from those media any electronically stored information, such as IP addresses and routing information, necessary to determine whether any digital device identified in Attachment A continues to be controlled by the Qakbot administrators after the seizure or copying of the electronically stored information identified in Paragraph 1.
At first glance, it might appear that the FBI limited its software deployment to known infected devices. But that’s clearly not the case, as was noted earlier in the NBC report quoted above. Here are the facts again, given a bit more weight with the addition of the FBI’s RAT warrant:
The FBI got a court’s permission to proceed with the operation on Aug. 21, according to a copy of the warrant. Agents proceeded to hack into Qakbot’s central computer infrastructure four days later, the FBI announced…
So, odds are the FBI didn’t know which computers were infected when it deployed its “remote access technique.” That means it was given permission to target any device it could access via the internet, with controlling factors only appearing four days after it had already performed its “search.”
The only mitigating factor is the last paragraph of the approved warrant. And that’s only mitigating if you believe the FBI would not use this opportunity to sniff around for others things it might be interested in.
This warrant does not authorize the seizure of any tangible property. Except as provided in the accompanying affidavit and in Paragraphs 1 and 2, this warrant does not authorize the seizure or copying of any content from the electronic storage media identified in Attachment A or the alteration of the functionality of the electronic storage media identified in Attachment A.
All this means is the court trusts the FBI not to abuse this access. And it forces all of us to operate by the same questionable standard, since the FBI has made it clear it is not willing, nor legally obligated, to inform computer users their computers were compromised by FBI software, however briefly or usefully.
Given that lack of disclosure, it’s going to make it almost impossible to challenge evidence of other criminal activity that might have been obtained during this mass search. It also means users aren’t able to double-check the FBI’s work by ensuring their devices are free of either botnet infections or FBI software.
And there’s a very good chance the FBI handled this all honestly and decently and actually performed a useful public service. The point is there are now court-accepted mechanisms in place that would easily allow the FBI to engage in activities that are more abusive of people’s rights without worrying too much about judicial oversight and/or victims of questionable spyware deployments ever finding out they were targeted during FBI activities ostensibly meant to take down botnets.
So, I already wrote a long post walking through the mostly very good 5th Circuit ruling in the Missouri v. Biden case, in which the court threw out most of the district court judge’s injunction against the government communicating with social media companies and academics. The end result is a very good, straightforward ruling on the 1st Amendment that reminds the government that they cannot coerce social media platforms on how they moderate.
The only bit left in the case is an injunction telling the government that they “shall take no actions, formal or informal, directly or indirectly, to coerce or significantly encourage” content moderation decisions by social media companies. Which is correct.
But I’m having a little difficulty trying to square that with the batshit crazy ruling from the very same 5th Circuit almost exactly a year ago, reinstating Texas’ state law on content moderation that pretty fucking clearly forces websites to moderate the way the government wishes them to.
Now, the two separate three judge panels have no overlap in judges, so you could argue that explains it. But, also, this latest ruling doesn’t even mention the earlier ruling. Which seems odd.
Now, I get what some people will say: they will claim that the two rulings don’t conflict at all if you read both of them to say that the government cannot force companies to take down content, but that it can force companies to leave up content. The Missouri ruling says the former, and the NetChoice ruling says the latter.
But that can’t be correct. The 1st Amendment protects against both scenarios and does so equally. The rights against compelled speech are just as important as the rights against suppressed speech. Because without one, you really don’t have the other. Freedom of speech covers both what you do and what you don’t say.
But the 5th Circuit seems to be suggesting only half of that applies. The half that allows the government to compel speech.
Of course, there is one other way to make the two rulings consistent: it’s a violation of the 1st Amendment when Democratic government officials do it, and it’s not a violation of the 1st Amendment when Republican government officials do it.
And people wonder why the public no longer trusts the judicial system to be impartial.
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We’re going to go slow on this one, because there’s a lot of background and details and nuance to get into in Friday’s 5th Circuit appeals court ruling in the Missouri v. Biden case that initially resulted in a batshit crazy 4th of July ruling regarding the US government “jawboning” social media companies. The reporting on the 5th Circuit ruling has been kinda atrocious, perhaps because the end result of the ruling is this:
The district court’s judgment is AFFIRMED with respect to the White House, the Surgeon General, the CDC, and the FBI, and REVERSED as to all other officials. The preliminary injunction is VACATED except for prohibition number six, which is MODIFIED as set forth herein. The Appellants’ motion for a stay pending appeal is DENIED as moot. The Appellants’ request to extend the administrative stay for ten days following the date hereof pending an application to the Supreme Court of the United States is GRANTED, and the matter is STAYED.
Affirmed, reversed, vacated, modified, denied, granted, and stayed. All in one. There’s… a lot going on in there, and a lot of reporters aren’t familiar enough with the details, the history, or the law to figure out what’s going on. Thus, they report just on the bottom line, which is that the court is still limiting the White House. But it’s at a much, much, much lower level than the district court did, and this time it’s way more consistent with the 1st Amendment.
The real summary is this: the appeals court ditched nine out of the ten “prohibitions” that the district court put on the government, and massively narrowed the only remaining one, bringing it down to a reasonable level (telling the U.S. government that it cannot coerce social media companies, which, uh, yes, that’s exactly correct).
But then in applying its own (perhaps surprisingly, very good) analysis, the 5th Circuit did so in a slightly weird way. And then also seems to contradict the [checks notes] 5th Circuit in a different case. But we’ll get to that in another post.
Much of the reporting on this suggests it was a big loss for the Biden administration. The reality is that it’s a mostly appropriate slap on the wrist that hopefully will keep the administration from straying too close to the 1st Amendment line again. It basically threw out 9.5 out of 10 “prohibitions” placed by the lower court, and even on the half a prohibition it left, it said it didn’t apply to the parts of the government that the GOP keeps insisting were the centerpieces of the giant conspiracy they made up in their minds. The court finds that CISA, Anthony Fauci’s NIAID, and the State Department did not do anything wrong and are no longer subject to any prohibitions.
The details: the state Attorneys General of Missouri and Louisiana sued the Biden administration with some bizarrely stupid theories about the government forcing websites to take down content they disagreed with. The case was brought in a federal court district with a single Trump-appointed judge. The case was allowed to move forward by that judge, turning it into a giant fishing expedition into all sorts of government communications to the social media companies, which were then presented to the judge out of context and in a misleading manner. The original nonsense theories were mostly discarded (because they were nonsense), but by quoting some emails out of context, the states (and a few nonsense peddlers they added as plaintiffs to have standing), were able to convince the judges that something bad was going on.
As we noted in our analysis of the original ruling, they did turn up a few questionable emails from White House officials who were stupidly trying to act tough about disinformation on social media. But even then, things were taken out of context. For example, I highlighted this quote from the original ruling and called it out as obviously inappropriate by the White House:
Things apparently became tense between the White House and Facebook after that, culminating in Flaherty’s July 15, 2021 email to Facebook, in which Flaherty stated: “Are you guys fucking serious? I want an answer on what happened here and I want it today.”
Except… if you look at it in context, the email has nothing to do with content moderation. The White House had noticed that the @potus Instagram account was having some issues, and Meta told the company that “the technical issues that had been affecting follower growth on @potus have been resolved.” A WH person received this and asked for more details. Meta responded with “it was an internal technical issue that we can’t get into, but it’s now resolved and should not happen again.” Someone then cc’d Rob Flaherty, and the quote above was in response to that. That is, it was about a technical issue that had prevented the @potus account from getting more followers, and he wanted details about how that happened.
So… look, I’d still argue that Flaherty was totally out of line here, and his response was entirely inappropriate from a professional standpoint. But it had literally nothing to do with content moderation issues or pressuring the company to remove disinformation. So it’s hard to see how it was a 1st Amendment violation. Yet, Judge Terry Doughty presented it in his ruling as if that line was about the removal of COVID disinfo. It is true that Flaherty had, months earlier, asked Facebook for more details about how the company was handling COVID disinfo, but those messages do not come across as threatening in any way, just asking for info.
The only way to make them seem threatening was to then include Flaherty’s angry message from months later, eliding entirely what it was about, and pretending that it was actually a continuation of the earlier conversation about COVID disinfo. Except that it wasn’t. Did Doughty not know this? Or did he pretend? I have no idea.
Doughty somehow framed this and a few other questionably out of context things as “a far-reaching and widespread censorship campaign.” As we noted in our original post, he literally inserted words that did not exist in a quote by Renee DiResta to make this argument. He claimed the following:
According to DiResta, the EIP was designed to “get around unclear legal authorities, including very real First Amendment questions” that would arise if CISA or other government agencies were to monitor and flag information for censorship on social media.
Except, if you read DiResta’s quote, “get around” does not actually show up anywhere. Doughty just added that out of thin air, which makes me think that perhaps he also knew he was misrepresenting the context of Flaherty’s comment.
Either way, Doughty’s quote from DiResta is a judicial fiction. He inserted words she never used to change the meaning of what was said. What DiResta is actually saying is that they set up EIP as a way to help facilitate information sharing, not to “get around” the “very real First Amendment questions,” and also not to encourage removal of information, but to help social media companies and governments counter and respond to disinformation around elections (which they did for things like misleading election procedures). That is, the quote here is about respecting the 1st Amendment, not “getting around” it. Yet, Doughty added “get around” to pretend otherwise.
He then issued a wide-ranging list of 10 prohibitions that were so broad I heard from multiple people within tech companies that the federal government canceled meetings with them on important cybersecurity issues, because they were afraid that any such meeting might violate the injunction.
So the DOJ appealed, and the case went to the 5th Circuit, which has a history of going… nutty. However, this ruling is mostly not nutty. It’s actually a very thorough and careful analysis of the standards for when the government steps over over the line in violating the 1st Amendment rights by pressuring speech suppression. As we’ve detailed for years, the line is whether or not the government was being coercive. The government is very much allowed to use its own voice to persuade. But when it is coercive, it steps over the line.
The appeals court analysis on this is very thorough and right on, as it borrows the important and useful precedents from other circuits that we’ve talked about for years, agreeing with all of them. Where is the line between persuasion and coercion?
Next, we take coercion—a separate and distinct means of satisfying the close nexus test. Generally speaking, if the government compels the private party’s decision, the result will be considered a state action. Blum, 457 U.S. at 1004. So, what is coercion? We know that simply “being regulated by the State does not make one a state actor.” Halleck, 139 S. Ct. at 1932. Coercion, too, must be something more. But, distinguishing coercion from persuasion is a more nuanced task than doing the same for encouragement. Encouragement is evidenced by an exercise of active, meaningful control, whether by entanglement in the party’s decision-making process or direct involvement in carrying out the decision itself. Therefore, it may be more noticeable and, consequently, more distinguishable from persuasion. Coercion, on the other hand, may be more subtle. After all, the state may advocate—even forcefully—on behalf of its positions
It points to the key case that all of these cases always lead back to, the important Bantam Books v. Sullivan case that is generally seen as the original case on “jawboning” (government coercion to suppress speech):
That is not to say that coercion is always difficult to identify. Sometimes, coercion is obvious. Take Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963). There, the Rhode Island Commission to Encourage Morality—a state-created entity—sought to stop the distribution of obscene books to kids. Id. at 59. So, it sent a letter to a book distributor with a list of verboten books and requested that they be taken off the shelves. Id. at 61–64. That request conveniently noted that compliance would “eliminate the necessity of our recommending prosecution to the Attorney General’s department.” Id. at 62 n.5. Per the Commission’s request, police officers followed up to make sure the books were removed. Id. at 68. The Court concluded that this “system of informal censorship,” which was “clearly [meant] to intimidate” the recipients through “threat of [] legal sanctions and other means of coercion” rendered the distributors’ decision to remove the books a state action. Id. at 64, 67, 71–72. Given Bantam Books, not-so subtle asks accompanied by a “system” of pressure (e.g., threats and followups) are clearly coercive.
But, the panel notes, that level of coercion is not always present, but it doesn’t mean that other actions aren’t more subtly coercive. Since the 5th Circuit doesn’t currently have a test for figuring out if speech is coercive, it adopts the same tests that were recently used in the 2nd Circuit with the NRA v. Vullo case, where the NRA went after a NY state official who encouraged insurance companies to reconsider issuing NRA-endorsed insurance policies. The 2nd Circuit ran through a test and found that this urging was an attempt at persuasion and not coercive. The 5th Circuit also cites the 9th Circuit, which even more recently tossed out a case claiming that Elizabeth Warren’s comments to Amazon regarding an anti-vaxxer’s book were coercive, ruling they were merely an attempt to persuade. Both cases take a pretty thoughtful approach to determining where the line is, so it’s good to see the 5th Circuit adopt a similar test.
For coercion, we ask if the government compelled the decision by, through threats or otherwise, intimating that some form of punishment will follow a failure to comply. Vullo, 49 F.4th at 715. Sometimes, that is obvious from the facts. See, e.g., Bantam Books, 372 U.S. at 62–63 (a mafiosi-style threat of referral to the Attorney General accompanied with persistent pressure and follow-ups). But, more often, it is not. So, to help distinguish permissible persuasion from impermissible coercion, we turn to the Second (and Ninth) Circuit’s four-factor test. Again, honing in on whether the government “intimat[ed] that some form of punishment” will follow a “failure to accede,” we parse the speaker’s messages to assess the (1) word choice and tone, including the overall “tenor” of the parties’ relationship; (2) the recipient’s perception; (3) the presence of authority, which includes whether it is reasonable to fear retaliation; and (4) whether the speaker refers to adverse consequences. Vullo, 49 F.4th at 715; see also Warren, 66 F.4th at 1207.
So, the 5th Circuit adopts a strong test to say when a government employee oversteps the line, and then looks to apply it. I’m a little surprised that the court then finds that some defendants probably did cross that line, mainly the White House and the Surgeon General’s office. I’m not completely surprised by this, as it did appear that both had certainly walked way too close to the line, and we had called out the White House for stupidly doing so. But… if that’s the case, the 5th Circuit should really show how they did so, and it does not do a very good job. It admits that the White House and the Surgeon General are free to talk to platforms about misinformation and even to advocate for positions:
Generally speaking, officials from the White House and the Surgeon General’s office had extensive, organized communications with platforms. They met regularly, traded information and reports, and worked together on a wide range of efforts. That working relationship was, at times, sweeping. Still, those facts alone likely are not problematic from a First-Amendment perspective.
So where does it go over the line? When the White House threatened to hit the companies with Section 230 reform if they didn’t clean up their sites! The ruling notes that even pressuring companies to remove content in strong language might not cross the line. But threatening regulatory reforms could:
That alone may be enough for us to find coercion. Like in Bantam Books, the officials here set about to force the platforms to remove metaphorical books from their shelves. It is uncontested that, between the White House and the Surgeon General’s office, government officials asked the platforms to remove undesirable posts and users from their platforms, sent follow-up messages of condemnation when they did not, and publicly called on the platforms to act. When the officials’ demands were not met, the platforms received promises of legal regime changes, enforcement actions, and other unspoken threats. That was likely coercive
Still… here the ruling is kinda weak. The panel notes that even with what’s said above the “officials’ demeanor” matters, and that includes their “tone.” To show that the tone was “threatening,” the panel… again quotes Flaherty’s demand for answers “immediately,” repeating Doughty’s false idea that that comment was about content moderation. It was not. The court does cite to some other “tone” issues, but again provides no context for them, and I’m not going to track down every single one.
Next, the court says we can tell that the White House’s statements were coercive because: “When officials asked for content to be removed, the platforms took it down.” Except, as we’ve reported before, that’s just not true. The transparency reports from the companies show how they regularly ignored requests from the government. And the EIP reporting system that was at the center of the lawsuit, and which many have insisted was the smoking gun, showed that the tech companies “took action” on only 35% of items. And even that number is too high, because TikTok was the most aggressive company covered, and they took action on 64% of reported URLs, meaning Facebook, Twitter, etc., took action on way less than 35%. And even that exaggerates the amount of influence because “take action” did not just mean “take down.” Indeed, the report said that only 13% of reported content was “removed.”
So, um, how does the 5th Circuit claim that “when officials asked for content to be removed, the platforms took it down”? The data simply doesn’t support that claim, unless they’re talking about some other set of requests.
One area where the court does make some good points is calling out — as we ourselves did — just how stupid it was for Joe Biden to claim that the websites were “killing people.” Of course, the court leaves out that three days later, Biden himself admitted that his original words were too strong, and that “Facebook isn’t killing people.” Somehow, only the first quote (which was admittedly stupid and wrong) makes it into the 5th Circuit opinion:
Here, the officials made express threats and, at the very least, leaned into the inherent authority of the President’s office. The officials made inflammatory accusations, such as saying that the platforms were “poison[ing]” the public, and “killing people.”
So… I’m a bit torn here. I wasn’t happy with the White House making these statements and said so at the time. But they didn’t strike me as anywhere near going over the coercive line. This court sees it differently, but seems to take a lot of commentary out of context to do so.
The concern about the FBI is similar. The court seems to read things totally out of context:
Fourth, the platforms clearly perceived the FBI’s messages as threats. For example, right before the 2022 congressional election, the FBI warned the platforms of “hack and dump” operations from “state-sponsored actors” that would spread misinformation through their sites. In doing so, the FBI officials leaned into their inherent authority. So, the platforms reacted as expected—by taking down content, including posts and accounts that originated from the United States, in direct compliance with the request.
But… that is not how anyone has described those discussions. I’ve seen multiple transcripts and interviews of people at the platforms who were in the meetings where “hack and dump” were discussed, and the tenor was more “be aware of this, as it may come from a foreign effort to spread disinfo about the election,” coming with no threat or coercion — just simply “be on the lookout” for this. It’s classic information sharing.
And the platforms had reason to be on the lookout for such things anyway. If the FBI came to Twitter and said “we’ve learned of a zero day hack that can allow hackers into your back end,” and Twitter responded by properly locking down their systems… would that be Twitter “perceiving the messages as threats,” or Twitter taking useful information from the FBI and acting accordingly? Everything I’ve seen suggests the latter.
Even stranger is the claim that the CDC was coercive. The CDC has literally zero power over the platforms. It has no regulatory power over them and now law enforcement power. So I can’t see how it was coercive at all. Here, the 5th Circuit just kinda wings it. After admitting that the CDC lacked any sort of power over the sites, it basically says “but the sites relied on info from the CDC, so it must have been coercive.”
Specifically, CDC officials directly impacted the platforms’ moderation policies. For example, in meetings with the CDC, the platforms actively sought to “get into [] policy stuff” and run their moderation policies by the CDC to determine whether the platforms’ standards were “in the right place.” Ultimately, the platforms came to heavily rely on the CDC. They adopted rule changes meant to implement the CDC’s guidance. As one platform said, they “were able to make [changes to the ‘misinfo policies’] based on the conversation [they] had last week with the CDC,” and they “immediately updated [their] policies globally” following another meeting. And, those adoptions led the platforms to make moderation decisions based entirely on the CDC’s say-so—“[t]here are several claims that we will be able to remove as soon as the CDC debunks them; until then, we are unable to remove them.” That dependence, at times, was total. For example, one platform asked the CDC how it should approach certain content and even asked the CDC to double check and proofread its proposed labels.
So… one interpretation of that is that the CDC was controlling site moderation practices. But another, more charitable (and frankly, from conversations I’ve had, way more accurate) interpretation was that we were in the middle of a fucking pandemic where there was no good info, and many websites decided (correctly) that they didn’t have epidemiologists on staff, and therefore it made sense to ask the experts what information was legit and what was not, based on what they knew at the time.
Note that in the paragraph above, the one that the 5th Circuit uses to claim that the platform polices were controlled by the CDC, it admits that the sites were reaching out to the CDC themselves, asking them for info. That… doesn’t sound coercive. That sounds like trust & safety teams recognizing that they’re not the experts in a very serious and rapidly changing crisis… and asking the experts.
Now, there were perhaps reasons that websites should have been less willing to just go with the CDC’s recommendations, but would you rather ask expert epidemiologists, or the team who most recently was trying to stop spam on your platform? It seems, kinda logical to ask the CDC, and wait until they confirmed that something was false before taking action. But alas.
Still, even with those three parts of the administration being deemed as crossing the line, most of the rest of the opinion is good. Despite all of the nonsense conspiracy theories about CISA, which were at the center of the case according to many, the 5th Circuit finds no evidence of any coercion there, and releases them from any of the restrictions.
Finally, although CISA flagged content for social-media platforms as part of its switchboarding operations, based on this record, its conduct falls on the “attempts to convince,” not “attempts to coerce,” side of the line. See Okwedy, 333 F.3d at 344; O’Handley, 62 F.4th at 1158. There is not sufficient evidence that CISA made threats of adverse consequences— explicit or implicit—to the platforms for refusing to act on the content it flagged. See Warren, 66 F.4th at 1208–11 (finding that senator’s communication was a “request rather than a command” where it did not “suggest[] that compliance was the only realistic option” or reference potential “adverse consequences”). Nor is there any indication CISA had power over the platforms in any capacity, or that their requests were threatening in tone or manner. Similarly, on this record, their requests— although certainly amounting to a non-trivial level of involvement—do not equate to meaningful control. There is no plain evidence that content was actually moderated per CISA’s requests or that any such moderation was done subject to non-independent standards.
Ditto for Fauci’s NIAID and the State Department (both of which were part of nonsense conspiracy theories). The Court says they didn’t cross the line either.
So I think the test the 5th Circuit used is correct (and matches other circuits). I find its application of the test to the White House kinda questionable, but it actually doesn’t bother me that much. With the FBI, the justification seems really weak, but frankly, the FBI should not be involved in any content moderation issues anyway, so… not a huge deal. The CDC part is the only part that seems super ridiculous as opposed to just borderline.
But saying CISA, NIAID and the State Department didn’t cross the line is good to see.
And then, even for the parts the court said did cross the line, the 5th Circuit so incredibly waters down the injunction from the massive, overbroad list of 10 “prohibited activities,” that… I don’t mind it. The court immediately kicks out 9 out of the 10 prohibited activities:
The preliminary injunction here is both vague and broader than necessary to remedy the Plaintiffs’ injuries, as shown at this preliminary juncture. As an initial matter, it is axiomatic that an injunction is overbroad if it enjoins a defendant from engaging in legal conduct. Nine of the preliminary injunction’s ten prohibitions risk doing just that. Moreover, many of the provisions are duplicative of each other and thus unnecessary.
Prohibitions one, two, three, four, five, and seven prohibit the officials from engaging in, essentially, any action “for the purpose of urging, encouraging, pressuring, or inducing” content moderation. But “urging, encouraging, pressuring” or even “inducing” action does not violate the Constitution unless and until such conduct crosses the line into coercion or significant encouragement. Compare Walker, 576 U.S. at 208 (“[A]s a general matter, when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position.”), Finley, 524 U.S. at 598 (Scalia, J., concurring in judgment) (“It is the very business of government to favor and disfavor points of view . . . .”), and Vullo, 49 F.4th at 717 (holding statements “encouraging” companies to evaluate risk of doing business with the plaintiff did not violate the Constitution where the statements did not “intimate that some form of punishment or adverse regulatory action would follow the failure to accede to the request”), with Blum, 457 U.S. at 1004, and O’Handley, 62 F.4th at 1158 (“In deciding whether the government may urge a private party to remove (or refrain from engaging in) protected speech, we have drawn a sharp distinction between attempts to convince and attempts to coerce.”). These provisions also tend to overlap with each other, barring various actions that may cross the line into coercion. There is no need to try to spell out every activity that the government could possibly engage in that may run afoul of the Plaintiffs’ First Amendment rights as long the unlawful conduct is prohibited.
The eighth, ninth, and tenth provisions likewise may be unnecessary to ensure Plaintiffs’ relief. A government actor generally does not violate the First Amendment by simply “following up with social-media companies” about content-moderation, “requesting content reports from social-media companies” concerning their content-moderation, or asking social media companies to “Be on The Lookout” for certain posts.23 Plaintiffs have not carried their burden to show that these activities must be enjoined to afford Plaintiffs full relief.
The 5th Circuit, thankfully, calls for an extra special smackdown Judge Doughty’s ridiculous prohibition on any officials collaborating with the researchers at Stanford and the University of Washington who study disinformation, noting that this prohibition itself likely violates the 1st Amendment:
Finally, the fifth prohibition—which bars the officials from “collaborating, coordinating, partnering, switchboarding, and/or jointly working with the Election Integrity Partnership, the Virality Project, the Stanford Internet Observatory, or any like project or group” to engage in the same activities the officials are proscribed from doing on their own— may implicate private, third-party actors that are not parties in this case and that may be entitled to their own First Amendment protections. Because the provision fails to identify the specific parties that are subject to the prohibitions, see Scott, 826 F.3d at 209, 213, and “exceeds the scope of the parties’ presentation,” OCA-Greater Houston v. Texas, 867 F.3d 604, 616 (5th Cir. 2017), Plaintiffs have not shown that the inclusion of these third parties is necessary to remedy their injury. So, this provision cannot stand at this juncture
That leaves just a single prohibition. Prohibition six, which barred “threatening, pressuring, or coercing social-media companies in any manner to remove, delete, suppress, or reduce posted content of postings containing protected free speech.” But, the court rightly notes that even that one remaining prohibition clearly goes too far and would suppress protected speech, and thus cuts it back even further:
That leaves provision six, which bars the officials from “threatening, pressuring, or coercing social-media companies in any manner to remove, delete, suppress, or reduce posted content of postings containing protected free speech.” But, those terms could also capture otherwise legal speech. So, the injunction’s language must be further tailored to exclusively target illegal conduct and provide the officials with additional guidance or instruction on what behavior is prohibited.
So, the 5th Circuit changes that one prohibition to be significantly limited. The new version reads:
Defendants, and their employees and agents, shall take no actions, formal or informal, directly or indirectly, to coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech. That includes, but is not limited to, compelling the platforms to act, such as by intimating that some form of punishment will follow a failure to comply with any request, or supervising, directing, or otherwise meaningfully controlling the social-media companies’ decision-making processes.
And that’s… good? I mean, it’s really good. It’s basically restating exactly what all the courts have been saying all along: the government can’t coerce companies regarding their content moderation practices.
The court also makes it clear that CISA, NIAID, and the State Department are excluded from this injunction, though I’d argue that the 1st Amendment already precludes the behavior in that injunction anyway, so they already can’t do those things (and there remains no evidence that they did).
So to summarize all of this, I’d argue that the 5th Circuit got this mostly right, and corrected most of the long list of terrible things that Judge Doughty put in his original opinion and injunction. The only aspect that’s a little wonky is that it feels like the 5th Circuit applied the test for coercion in a weird way with regards to the White House, the FBI, and the CDC, often by taking things dramatically out of context.
But the “harm” of that somewhat wonky application of the test is basically non-existent, because the court also wiped out all of the problematic prohibitions in the original injunction, leaving only one, which it then modified to basically restate the crux of the 1st Amendment: the government should not coerce companies in their moderation practices. Which is something that I agree with, and which hopefully will teach the Biden administration to stop inching up towards the line of threats and coercion.
That said, this also seems to wholly contradict the very same 5th Circuit’s decision in the NetChoice v. Paxton case, but that’s the subject of my next post. As for this case, I guess it’s possible that either side could seek Supreme Court review. It would be stupid for the DOJ to do so, as this ruling gives them almost everything they really wanted, and the probability that the current Supreme Court could fuck this all up seems… decently high. That said, the plaintiffs might want to ask the Supreme Court to review for just this reason (though, of course, that only reinforces the idea that the headlines that claimed this ruling was a “loss” for the Biden admin are incredibly misleading).
We’ve already noted how the 2021 infrastructure bill aims to spend a whopping $42 billion on broadband deployments via the Broadband Equity and Deployment program (BEAD). We’ve also noted how big regional monopolies are doing everything in their power to ensure the lion’s share of that money goes to them, and not smaller ISPs or a number of popular, community-owned broadband networks.
The funding is an historic opportunity to address patchy U.S. broadband. Throwing the lion’s share of that money at giant regional monopolies like AT&T (with long, detailed histories of taking taxpayer money then delivering either fraud or half-completed networks) would undermine the whole point of the program. Especially given that data shows community-owned ISPs provide better, faster, cheaper service.
So last week, a massive coalition of more than 300 smaller ISPs and broadband policy experts wrote a letter to the NTIA (the agency in charge of BEAD), pointing out that rules affixed to the program are unfairly boxing out many smaller and community-owned ISPs.
Under program rules, grant winners not only must obtain a letter of credit (LOC) from a bank to receive the grant, they have to pony up “matching funds of not less than 25 percent of project costs.” According to the coalition of experts, this requirement to set aside huge swaths of cash (that can’t be used for actual project builds) just to get a grant that unfairly benefits giant, regional monopolies:
“Awardees will have to lock away vast sums of capital for the full duration of the build, likely several years. With the additional 25% match requirement, recipients will have a capital hurdle of more than 60% of their grant. We estimate a provider seeking a $7.5 million grant for a $10 million project will need at least $4.6 million of their own capital up-front.”
Money set aside to ensure a grant applicant qualifies under these guidelines is money that’s not being used to actually build broadband networks. That’s not a big deal for AT&T or Comcast, but it’s a big deal for a local, community-owned broadband ISP dealing not only with tight budgets, but lawsuits from giant providers looking to undermine them:
“by establishing capital barriers too steep for all but the best-funded ISPs, the LOC shuts out the vast majority of entities the program claims to prioritize: small and community-centered ISPs, minority and women-owned ISPs, nonprofits, and municipalities. Rather than demonstrating a provider’s ability to construct a broadband network and provide high-speed broadband services to unserved and underserved Americans, the LOC is a measure of whether they can lock up valuable working capital over multiple years.”
Many community broadband networks can’t even obtain LOCs due to local rules, which often include shitty state laws lobbied for by regional monopolies with an eye on undermining competition.
The coalition suggested the NTIA either eliminate the restrictions, or add a few practical alternatives, including delayed reimbursement (where a state and provider releases grant funding as set goals are met), or performance bonds (commonly used in construction projects), which provide a financial guarantee for project delivery without requiring providers to set aside such a large amount of capital.
When asked for comment, the NTIA basically gave a non-answer, so it’s not clear if rule changes are coming anytime soon:
“We have received the letter and appreciate these advocates raising their concerns and suggestions. Our goal is to connect everyone in America with affordable, reliable high-speed Internet service while being good stewards of taxpayer dollars.”
The NTIA is likely trying to avoid the problems seen with the Trump-era FCC RDOF program, which failed due to a lack of agency scrutiny over whether ISPs could actually build the networks they promised (it’s a major reason why the NTIA was put in charge of BEAD). But the LOC restrictions pretty clearly run contrary to the whole program’s stated goals.
Giant regional monopolies dominate every last part of U.S. broadband policy, from determining what defines “broadband” and terms like “underserved,” to mapping access and the grant approval process. Putting predatory monopolies with a history of taking taxpayer funds in exchange for bupkis in the driver’s seat of an historic subsidy program isn’t going to end well. It never does.
