The Lies The 5th Circuit Told You About The Government ‘Pressuring Social Media To Censor’

Say That Again

from the tragically-misleading-record dept

On Monday, the Supreme Court will be hearing the Murthy v. Missouri case, which we’ve been following for ages. As we’ve pointed out repeatedly, the record on the case is full of blatant falsehoods. If the US government was actually doing everything that the lawsuit (and some judges!) claims it did, I would be in agreement that it’s a clear First Amendment violation. The problem is that the plaintiffs misrepresented many, many things, and then the district court judge, Terry Doughty, made it even worse.

Among other things, he invented quotes by inserting words into a quote that weren’t actually said, directly changing its meaning. He also falsely represented that an email about a technical problem was about content moderation.

And while the 5th Circuit didn’t buy everything the district court judge said, and greatly limited the original ruling, it did contain more confusion in its opinion (actually, opinions, because it reissued the opinion and added CISA to the injunction with no explanation, even though it originally ruled that CISA did nothing wrong).

While I’ve pointed out some of the errors in the record before and was happy to see the reply brief from the Justice Department focus heavily on those false claims in the record, there were so many false and misleading statements that it’s been bothering me throughout this case. I wanted to find the time to go through and highlight them all, but it would have been a massive project.

But, thankfully, Dean Jackson, over at Tech Policy Press did a pretty thorough job of it instead. He notes that the statements claiming that the US government coerced social media don’t stand up to any amount of scrutiny. Indeed, scratch any claim that people throw out in support, and you’ll find that the plaintiffs and the courts totally misrepresented them, often to suggest the opposite of reality:

… the Fifth Circuit’s conclusions regarding the Federal government are erroneous. They rest on cherry-picked evidence, flawed analysis, and misunderstandings about the internal workings of social media companies.

In weighing the difference between persuasion and coercion, the Fifth Circuit presents snippets of email exchanges between government officials and social media platforms. The arrangement of these snippets tells a story of furious government officials and browbeaten platform staff. Because none of them are cited to source documents, it is difficult for a casual reader to put them in context to see if that story is true. But the quotes can be traced back to longer, publicly released email exchanges that show a bigger picture.

And that “bigger picture” shows that the claims of coercion are simply not supported by the record. There’s too much in the article to go through all of the examples, but time and time again you see how the plaintiffs take things totally out of context, and when put back into context, the exchanges don’t really support the claims of threats and coercion.

Take the issue of the FBI’s involvement with the platforms.

The Fifth Circuit ruling contains only three short paragraphs dedicated to the FBI. It alleges that “Per their operations, the FBI monitored platforms’ moderation policies, and asked for detailed assessments during their regular meetings. The platforms apparently changed their moderation policies in response to the FBI’s debriefs,” particularly around “hack and dump” operations. The FBI also “targeted domestically sourced ‘disinformation,’ like posts that stated incorrect poll hours or mail-in voting procedures.” The ruling contains no quotations from communications between the FBI and social media companies. Instead, it appears to be based on the deposition of FBI agent Elvis Chan, summarized in the memo accompanying the initial July 4 injunction.

Much of the discussion of Chan’s deposition revolves around “hack and dump” (or “hack-and-leak”) operations, especially the October 2020 release of materials allegedly taken from a laptop belonging to President Biden’s son, Hunter. According to the memo,

Social-media platforms updated their policies in 2020 to provide that posting “hacked materials” would violate their policies. According to Chan, the impetus for these changes was the repeated concern about a 2016-style “hack-and-leak” operation. Although Chan denies that the FBI urged the social-media platforms to change their policies on hacked material, Chan did admit that the FBI repeatedly asked the social-media companies whether they had changed their policies with regard to hacked materials because the FBI wanted to know what the companies would do if they received such materials.

Because the Hunter Biden laptop has become a source of scandal and conspiracy theories, it is important to note here that these policy changes pre-date the initial public reporting on its existence and the contents of its hard drive. The FBI and social media companies had good reason to worry about foreign state actors using hacked materials to influence the 2020 election: they had, after all, already done so in the 2016 election and again in the 2017 French elections.

When the New York Post reported on the laptop’s contents weeks before the 2020 Presidential election, Facebook and Twitter, believing mistakenly that the quoted materials might have been the result of a foreign hack-and-leak operation, took steps to limit the story’s reach. In testimony before the House Oversight Committee, Yoel Roth, Twitter’s former head of site integrity, called the decision a mistake but denied government involvement in it.

Roth further described his interactions with federal officials in an essay for the Knight First Amendment Institute. “Over the last few months,” he writes, “I’ve had the somewhat surreal experience of learning that my decisions are not my own.” He worries that “the factual foundation” of the Fifth Circuit’s ruling is “flawed” and later asserts that “[t]he FBI fastidiously… avoid[ed] both assertions that they’ve found platform policy violations, and requests that Twitter do anything other than assess the reported content under the platform’s applicable policies.”

In other words, law enforcement told platforms to do what they wanted with the information provided.

The article also highlights how the courts seem wholly ignorant of the nature of trust & safety, and how diminishing the reach of some content is different than banning that content.

Another misunderstanding is that at several points, the Fifth Circuit conflates the removal of content with the demotion of content. When the Fifth Circuit writes that…

Even when the platforms did not expressly adopt changes… they removed flagged content that did not run afoul of their policies. For example, one email from Facebook stated that although a group of posts did not “violate our community standards,” it “should have demoted them before they went viral.” In another instance, Facebook recognized that a popular video did not qualify for removal under its policies but promised that it was being “labeled” and “demoted” anyway after the officials flagged it.

…it confuses two different types of content moderation. As shown in the email exchange with Flaherty above, the platform policy is to reduce the distribution of “borderline” content that comes close to violating a policy but does not qualify for removal. That policy pre-dates the Biden administration; similar policies were in place, for example, in the run-up to the 2020 election and the January 6th insurrection. It is troubling that in making allegations of coercion, the Fifth Circuit cannot distinguish between exceptions to policy and application of existing policy.

On Monday, the Justices will hear oral arguments in this case. The most worrying part of it is that they’re likely to make a very meaningful ruling based on a near total misunderstanding of (1) what actually happened and (2) how internet content moderation actually works. That seems like a problem.

Filed Under: 1st amendment, coercion, jawboning, murthy v. missouri, supreme court