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

from the jawboning-the-supreme-court dept

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

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

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

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

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

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

“Things apparently became tense between the White House and Facebook after that, culminating in Flaherty’s July 15, 2021 email to Facebook, in which Flaherty stated: ‘Are you guys fucking serious? I want an answer on what happened here and I want it today.’”

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

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

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

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

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

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

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

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

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

This is all correct.

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

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

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

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

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

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Comments on “White House, States Try To Convince Supreme Court In Jawboning Case”

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73 Comments
LittleCupcakes says:

No secrets

No hiding, no backroom deals, no secret commlink, no special tools, no hitting up an old FBI buddy, no smoke-filled room, and no special treatment for the government.

If the government wants to say something, make a post. Send a press release. Make a speech. Publish an op-ed. Upvote, downvote, like or dislike, post a reply, and/or use reporting tools available to the public. No secrets!

There’s your articulable standard. No coercion, no four part test, no judgment calls, and everyone can see everything.

Of course, that might make it more difficult for the disfavored opinions to be shitcanned. Feature, not a bug.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re:

Nothing in your standard begins to address coersion. By your standard “I will order a drone strike on Apple HQ unless they break encryption” is coercive when done in private, but not in public. You’ve focused on secrecy as the issue, rather than coersion.

Im not sure why you feel like publically acknowleged murder for failing to adhere to government dictates isn’t coercive but clicking a report button on a picture of a nazi flag is coersion, but that’s the conclusion one can draw from your claims that forcing all govenrment communication as public posts on facebook is how you prevent the government from threatening retaliation.

Anonymous Coward says:

Re:

blablabla government should only do what private citizens are allowed to do

Uh, they already DO?

the government isn’t allowed to [Republican dogwhistle]

It’s pretty clear you didn’t even bother to care to read the Fifth Circuit Opinion On This case. Or 1A. They NEVER could and should never do so, yes, it’s a feature.

And Section 230 handles the rest. Their houses, their rules, and if you don’t like that, you clearly hate private property.

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Anonymous Coward says:

The annoying thing here is that this issue of government jawboning is an important one

It is important. Among other things it’s one of the reasons the Biden administration has stopped pushback on the anti-vaxxer craziness. See Politico artcile
At this point we have this politically motivated movement, and it’s all totally one-sided. Nobody on the pro-vaccine side is showing up to the debate.

Not sure that this is what plaintiffs had in mind, but it sure is working for them.

Anonymous Coward says:

Care to propose “a clear judicial standard”? It is unclear that such a standard is even possible (or intelligible to anyone but a lawyer).

Agree that there need to be limits when the government switches from persuasion to coercion, but that can entail nothing more than a change in voice tone.

A more complex problem is hidden underneath this issue: the 1st Amendment protects the right to tell (and repeat and amplify) lies that result in people dying (or wasting money or being indirectly exposed to fraud). That’s always been true in this country, but the Internet allows the liar to have an influence on a huge audience remotely and anonymously.

Anonymous Coward says:

Re:

“A more complex problem is hidden underneath this issue: the 1st Amendment protects the right to tell (and repeat and amplify) lies that result in people dying (or wasting money or being indirectly exposed to fraud). That’s always been true in this country, but the Internet allows the liar to have an influence on a huge audience remotely and anonymously.”

Yes, Donald Trump and friends are a real problem for the survival of humanity but it is not very complex, it is simply fascism with a Donald twist.

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JMT (profile) says:

Re: Re: Re:

“Orange Man bad! Durrrrrrrrrrrrrr”

We could describe in great detail all the reasons why this is true but it is indeed a statement of fact that Trump deliberately chooses to cover his face in orange-hued make-up and has done and continues to do a great many bad things. Whole books have been written on it. But thanks for simplifying.

This comment has been deemed insightful by the community.
That One Guy (profile) says:

The states and courts depending upon cherrypicked quotes and dishonest arguments is a really telling move as it shows that even they know on some level that they’re not in the right.

If you have to lie to make your case that’s a pretty strong admission that even you know you don’t have one.

This comment has been flagged by the community. Click here to show it.

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Benjamin Jay Barber says:

Re:

No the judge ruled on the issue of qualified immunity, which is completely different that judging on the merits.

Other than that, strippers are engaged in free expression, but there is a reason why children are not allowed in strip clubs, because children do not get full constitutional rights, nor do people have full first amendment rights to speak to children, which is why we have internet child privacy laws.

Anonymous Coward says:

Re: Re:

Unfortunately for revenge porn man, children DO enjoy the freedom of expression, and with it, its attendant rights the right to free association, and the right to FREE ACCESS OF (HOPEFULLY AGE-APPROPRIATE) INFORMATION.

Please go back to the Kiwifarms Night School of Law, asshole. You clearly flunked out of that place MULTIPLE TIMES.

This comment has been flagged by the community. Click here to show it.

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Anonymous Coward says:

Re: Re: Re:2

While we all agree that children (taken here to be humans under the age of 12) do not have the mental maturity or the life experience necessary to tell sexual predators apart (and again, it is a very rare occurrence for children to associate with sexual predators UNLESS said predators are their parents or trusted individuals, like, let’s say, religious leaders or scout leaders)…

I believe children are allowed to wear antiwar armbands, LGBTQ+ affirmative clothing oh, and get this, armbands that oppose women’s reproductive rights (mostly abortion).

The implication of the aforementioned should be apparent to you, revenge porn man.

It is one thing to understand that children do need some form of parental guidance and protection. I do not think any of us here disagree with that notion. Children can be complete idiots, after all. And unless you live in that one state, children do not have to work for lodgings and food and whatnot by law.

It is another to claim that children don’t have 1A rights or free association/exercise, no matter how diminished, because of their age.

Then again, you did fail the Kiwifarms Law Night School. Go back there to get your basic education in all things legal and come back when you’ve actually passed.

I mean… even that vile place thinks that revenge porn is bad.

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Anonymous Coward says:

Re: Re: Re:4

It is, unfortunately, not my problem that you only pay attention to the worst of these cases as opposed to what the law says about them.

Then again, it’s very hard for me to take you at your word when your actions speak louder than your supposed “intelligence”.

And it’s even more telling that even judges will sometimes listen to the child, shockingly enough, in court, even though it’s not supposed to be a nice thing for the child. Unlike what you imply.

You don’t really want to protect the child, do you, you bloody hypocrite.

Anonymous Coward says:

This really shouldn’t be a difficult test to be specific about.

“Based on this guy’s communications, which occurred in his role as a government official, would any normal person in this situation be reasonably worried about possible retaliation if the demand was unmet?”

If the answer is “yes most people would be really fucking worried, ok?” Then the government official shouldn’t fucking talk like that.

Like, no one (reasonable, and even probably a lot of unreasonable Qanon antivax shitheads) would be citing this email chain if it had started with, “Hi! The POTUS is worried about his ability to effectively communicate on your platform, and we’d really appreciate it if you could possibly look into this ASAP. Thank you so much in advance!!”

Rocky says:

Re:

“Based on this guy’s communications, which occurred in his role as a government official, would any normal person in this situation be reasonably worried about possible retaliation if the demand was unmet?”

Your question is kind of naïve because it doesn’t take the context into consideration, like for example that the people communicating know each other very well. Do you talk to someone you don’t know well in the same way when you know them very well?

From the communication excerpts above it’s extremely clear these people know each other but to an outsider who don’t get that (or doesn’t want to), the answer to your question then becomes yes.

I’m pretty sure most people have sent a couple of emails to co-workers with language that to an outsider would be damning, or as Richelieu put it:

If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him.

Rich in New Mexico (profile) says:

Partisan censorship on line

I believe is completely apparent to any sentient being that there is a distinct bias by the tech companies and that it favors the democrat party and its’ candidates and policies. The fact that a leftist bias exists is so easily identified that Ray Charles or Helen Keller could see it from a thousand yards on dark night.
To try to argue that there is not or that it is not being done at the behest of and for the benefit of the democrat party and its candidates is also absurd. The democrats have a long history of trading favorable legislation for money and/or help in the areas of expertise of whomever they are dealing with at the time. While this shady method of doing business is engaged in by many, it must be acknowledged that the democrats have this area of expertise honed to a fine edge, in fact so much so that the head of their party has been engaged in this vile business both as an independent operator, enriching his entire extended family who themselves are so involved that son Hunter has become the family bagman much as biden himself served that same purpose years ago when he was Obama’s bagman. And so the wheel turns. However I digress.
Back to censorship and the internet. If one examines the media treatment of the fiasco of the Russian Dossier and the myriad instances of criminality associated with that and the peripheral events surrounding it which in terms of news presented a story with the potential to make Watergate look like a parking ticket given that the Clinton campaign and the DNC had their DNA all over it, including numerous lies to federal judges on many occasions as well as perjury, false statements, suppression of evidence and so on I think one would have to concur that the word censorship doesn’t have the capacity to describe the related series of events that went into the conspiracy required to cover up and suppress that story.
Following on the heels of that we find Hunter’s laptop, the suppression of which absolutely altered the outcome of the 2020 election, a fact which the democrats are now belatedly admitting to that at this late date and much more.
To put it succinctly what is at issue here is the democrats are and have been controlling the flow of information in this country for decades. Their monopoly had never been totally air-tight before and many wish to make it so now and are here willing to go in open court and defend such a free republic killing philosophy. They have no interest in a Fourth Estate when a Fifth Column is within their grasp. What they are after now is akin to what they done with election law. They want to take bad ideas and worse policy and make it legal and if they fail in that because too many can see what they are trying to do and recognize the fatal effect it could have on the country, their aim is then, and here we have the analog to their game regarding election law, they wish to make it easy to cheat and impossible to be caught, precisely because cheating is so easy.
One may wish to read that twice to gain the full impact but it is quite clever. It reminds one of their climate facts in the Glo-Bull warming grift. When they were unable to falsify certain data to make it appear as though the earth were warming at a rate they wished it were, rather than continuing to falsify the data they were accumulating currently, which was hard to do because they were being watched, they cleverly went back a number of years and lowered the temperture data from the the 1930s and earlier to make it appear as though it warmed more and faster than real numbers would support. This was the cheating that came to light in some e-mail exchanges between some folks at East Anglia University .
I only mention that to illustrate the nature of our enemy in this battle for the future of our country. They will do anything and they never sleep. They are like water to someone who lives on a boat, they are always looking to gain entrance in order to sink it. Again I digress.
In any event the democrats are trying to codify the way they cheat, they are trying to normalize interference in elections but only in those cases where they are guilty of doing it. (See current persecution/railroading of President Trump),If someone else, someone who disagrees in any fashion with their rigid dogma tries to do any of what they are doing it’s an impeachable offense, there needs to be a special prosecutor even if he is the defendants uncle or a life long family friend. There is no decency and there are no standards, not in a two tiered justice system where parents at school board meeting find their names on secret FBI watch lists labeled as terrorists for asking a question about one aspect of that dogma I referred to.
People who demonstrate at the capitol, the so-called people’s house are held as political prisoners with no rights for years, one is even shot dead, left to bleed to death because medical help was not allowed in by those who shot her and then tried to lie to the American people by falsy claiming the demonstrators killed five police. A neat trick as none of the “insurrectionists” were even armed, although those who burned two billion dollars worth of homes and businesses in poor democrat controlled cities over the year of 2020 were not even arrested because they were doing all that at the behest of the democrats.
Vice President Harris summed up the democrats feelings toward their rioters, looters, killers and actual insurrectionists best when she stated, “They are not going to stop until they get what they want. And I don’t think they should…” Now if that is not a tacit stamp of approval and a bow to the two tiered, bifurcated justice system that is all that remains of what was once the envy of the legal world, nothing is.

JMT (profile) says:

Re:

I believe is completely apparent to any sentient being that there is a distinct bias by the tech companies and that it favors the democrat party and its’ candidates and policies.

Tech companies tend to attract younger, highly educated people. Both younger and educated people tend more towards the types of policies promoted by the Democratic party. What you deride as bias is also simply called agreement.

By your logic I can say that there is a distinct bias by banking or energy companies and that it favors the Republican party and its candidates and policies. Are you going to claim there has never been any communication between those companies and Republican administrations?

Unfortunately that first paragraph seems to be your least wacky.

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