The Lawless Evil Of Denying Due Process

from the this-is-what-america-has-become dept

The U.S. government just demonstrated exactly why due process matters. In what should be a shocking admission, the Trump administration revealed in court that it had made a bit of an oopsie (they call it an “administrative error”) — one that resulted in trafficking a Maryland father with protected legal status to a Salvadoran prison. Their response to this horrific mistake? Not contrition or attempts to fix it, but rather an argument that U.S. courts have no jurisdiction to help bring him back.

This is what happens when you replace due process with authoritarian expediency. And it’s exactly what the MAGA movement is deliberately pushing for, as evidenced by Trump’s “border czar” Tom Homan, who sneered at the very concept of due process during an ABC interview last week:

“Due process? What was Laken Riley’s due process? Where were all these young women that were killed and raped by members of TdA, where was their due process?”

In making this argument, Homan inadvertently reveals himself to be embracing the same twisted logic as those he claims to be fighting: criminals who feel that the ends justify any means, that due process is an inconvenient obstacle rather than a fundamental safeguard of justice. It’s the kind of thinking that leads directly to “administrative errors” that destroy innocent lives.

The entire point of the rule of law in a civilized society is that we’re better than that. We provide due process precisely because it’s the only way to ensure we don’t punish innocent people. If Homan and his department were actually doing their jobs properly, due process wouldn’t be an obstacle — it would be an opportunity to demonstrate the legitimacy of their actions through proper legal channels.

Instead, we have this fucking mess:

The Trump administration acknowledged in a court filing Monday that it had grabbed a Maryland father with protected legal status and mistakenly deported him to El Salvador, but said that U.S. courts lack jurisdiction to order his return from the megaprison where he’s now locked up.

That’s one hell of an “administrative error.”

Let’s be crystal clear: this wasn’t a “deportation” — deportation requires due process. This was human trafficking, plain and simple. A U.S. resident with legal protection was grabbed by government agents and forcibly transferred to a foreign labor camp.

What stands out in the court filing is the government’s cavalier attitude in the filing. They admit, with bureaucratic sterility, that they trafficked a man they knew had legal protection:

On March 15, although ICE was aware of his protection from removal to El Salvador, Abrego Garcia was removed to El Salvador because of an administrative error

The normal response to discovering you’ve made a catastrophic error that has imprisoned an innocent person in another country would be to fix it immediately. Instead, the government’s response is essentially “ah well, nothing we can do!” They actually argue that because they’ve already illegally trafficked him to a slave labor camp in El Salvador, U.S. courts have no power to help:

Here, Plaintiffs seek review of the legality of the Executive’s restraint of and removal of Abrego Garcia to El Salvador, leading to his present detention there…. (alleging Defendants “decided to deport Plaintiff Abrego Garcia without following the law”). Plaintiffs make it clear that the ultimate relief they seek is his return to the United States to live at liberty with his family… (alleging irreparable harm from separation from his family and asking “the Court to immediately order Defendants to take all steps reasonably available to them, proportionate to the gravity of the ongoing harm, to return Plaintiff Abrego Garcia to the United States.”) Because Plaintiffs seek Abrego Garcia’s release from allegedly unlawful detention on the grounds that it was effected illegally, they make a core habeas claim, and they must therefore bring it exclusively in habeas.

But there is no jurisdiction in habeas. Plaintiffs admit—as they must—that the United States does not have custody over Abrego Garcia. They acknowledge that there may be “difficult questions of redressability” in this case, reflecting their recognition that Defendants do not have “the power to produce” Abrego Garcia from CECOT in El Salvador. … But even more, they concede that Abrego Garcia is not in Defendants’ custody. Id. (asking the Court to order Defendants to “request that the government of El Salvador return Plaintiff to Defendants’ custody”). Despite their allegations of continued payment for Abrego Garcia’s detention, Plaintiffs do not argue that the United States can exercise its will over a foreign sovereign. The most they ask for is a court order that the United States entreat—or even cajole—a close ally in its fight against transnational cartels. This is not “custody” to which the great writ may run. This Court therefore lacks jurisdiction.

The government’s argument is essentially: “Yes, we illegally trafficked someone we knew we shouldn’t have touched, but since we’ve already done it and he’s in a foreign prison, U.S. courts are powerless to help.” While the DOJ’s jurisdictional argument may be technically correct under current law, the implications are horrifying.

This is precisely why due process exists in the first place.

It’s not just some bureaucratic inconvenience — it’s a vital safeguard against exactly this kind of nightmare scenario. Without due process protections, government agents can make “administrative errors” that result in trafficking innocent people to foreign prisons, then shrug and say “oops, nothing we can do!” when the mistake is discovered. And, before long, those “administrative errors” become convenient ways to get rid of anyone the powers that be dislike.

A few weeks ago, law professor Steve Vladeck wrote an important piece about why we have due process, noting that it is the main thing that “separates democratic legal systems from … less democratic legal systems.” In that piece, he responded to people telling him (a la Homan) that it was fine to remove gang members from the US without due process since they were so bad.

Against that backdrop, there’s just no good argument for refusing to provide comparable process to accused members of TdA before removing them from the country. I say this not because, contra some of my Twitter fans and e-mail correspondents, I support TdA and want to keep “rapists and murderers” at large in the United States. Rather, I say this because that kind of process is how any of us can have confidence that the folks being packed onto airplanes and whisked off to El Salvador are Venezuelan citizens and members of TdA—as opposed to U.S. citizens; political dissidents; or others whom the Trump administration would just as soon be rid of. Indeed, one need not believe that the government is acting maliciously to believe that errors will be made.

Vladeck wrote that warning just a week and a half ago — well before the DOJ’s admission of this “administrative error.” But this case isn’t an isolated incident. It’s part of an emerging pattern that demonstrates exactly why his concerns about due process are so vital.

Consider the growing list of victims: There’s Andry José Hernández Romero, a makeup artist. There’s Neri Alvarado, a bakery worker. Neither had any gang connections. Their “crimes”? Having tattoos. In Alvarado’s case, it was a tattoo promoting autism awareness. This is what passes for “evidence” of gang activity when you dispense with due process.

These aren’t isolated incidents. The flood of similar cases reveals a systematic dismantling of due process. Take Jerce Reyes Barrios, detailed in the New Yorker piece linked above:

Jerce Reyes Barrios, a thirty-six-year-old soccer player and youth coach, fled Venezuela last year after marching in anti-government protests. His immigration file cites two grounds for suspicion: a gesture he made while posing for a photo that was posted to social media and a tattoo of a crown on top of a soccer ball with a rosary and the word “Dios.” His lawyer, Linette Tobin, worked with his family to secure documents from the police in Venezuela to show that he hadn’t committed any crimes. They also tracked down Barrios’s tattoo artist. “He wanted a tattoo related to soccer,” the artist said in a legal declaration. “We searched on the internet and the ball with a crown caught our attention to represent the king of soccer, and he liked the idea.”

The same article quotes a Tren de Aragua expert confirming that the gang “does not use any tattoos as a form of gang identification” — yet tattoos remain the government’s primary “evidence” for trafficking people to foreign prisons. This is what happens when due process is replaced with prejudice and paranoia: innocent gestures become evidence of crimes, and basic fact-checking is discarded as an inconvenient obstacle.

When confronted with these facts, the response from MAGA leadership has been to double down on authoritarianism while attacking anyone who dares to question their methods. Take White House Press Secretary Karoline Leavitt’s revealing freakout of a response to reporter Andrew Feinberg when he simply asked about due process safeguards against mistaken identification:

“You can get classified by simply having certain symbols in your tattoos and wearing certain streetwear brands—that alone is enough to get someone classified as TdA and sent to El Salvador,” Feinberg said. 

“That’s not true, actually, Andrew,” Leavitt snapped. Feinberg insisted he was simply reading from court documents filed by the government. 

“No, according to Department of Homeland Security and the agents—have you talked to the agents who have been putting their lives on the line to detain these foreign terrorists who have been terrorizing our communities?” Leavitt asked. 

“I–I’m not denying that—” Feinberg said, but Leavitt continued.

“TdA is a vicious gang that has taken the lives of American women, and our agents on the front lines take up deporting these people with the utmost seriousness, and there is a litany of criteria that they use to ensure that these individuals qualify as foreign terrorists, and to ensure, to ensure that they qualify for deportation,” she said. 

“And shame on you, and shame on the mainstream media for trying to cover for these individuals who have—this is a vicious gang, Andrew! This is a vicious gang that has taken the lives of American women!”

“I’m not trying to cover for anyone,” Feinberg insisted, but Leavitt continued to attack Feinberg for even asking about the documents, once again unable to account for the government she purports to represent.

“And you said yourself there are eight criteria on that document! And you are questioning the credibility of these agents who are putting their life on the line to protect your life, and the life of everybody in this group and the life of everybody across the country? And their credibility should be questioned? They finally have a president who is allowing them to do their jobs, and God bless them for doing it,” Leavitt fumed.

The performative outrage is telling. If there truly is a “litany of criteria” that “ensure” proper identification of gang members, as Leavitt claims, then providing due process should be trivially easy. The government could simply present its evidence in court, where it would stand up to basic scrutiny. Their aggressive resistance to any kind of oversight suggests they know their “evidence” won’t withstand examination.

The historical parallels are impossible to ignore. In his piece, Vladeck highlights Supreme Court Justice Robert Jackson’s prescient 1952 warning about due process:

[T]he Nazi regime in Germany installed a system of ‘protective custody’ by which the arrested could claim no judicial or other hearing process, and as a result the concentration camps were populated with victims of summary executive detention for secret reasons. . . . There are other differences, to be sure, between authoritarian procedure and common law, but differences in the process of administration make all the difference between a reign of terror and one of law. Quite unconsciously, I am sure, the Government’s theory of custody for ‘safekeeping’ without disclosure to the victim of charges, evidence, informers or reasons, even in an administrative proceeding, has unmistakable overtones of the ‘protective custody’ of the Nazis more than of any detaining procedure known to the common law. Such a practice, once established with the best of intentions, will drift into oppression of the disadvantaged in this country as surely as it has elsewhere.

Seven decades later, Jackson’s warning reads like a prophecy fulfilled. We now have a MAGA movement explicitly embracing the exact authoritarian tactics he feared: disappearing people through “administrative” mechanisms, trafficking them to offshore camps without due process, then declaring any “errors” in the process irreversible. The parallels to the “protective custody” system he described are not subtle.

The dangerous implications of this mindset are perfectly captured by MAGA Rep. Victoria Spartz, who recently declared at a town hall that:

“There is no due process if you come here illegally because you violated the law. Period! You violated the law, you are not entitled to due process.”

This statement reveals a fundamental misunderstanding of both law and logic that would be merely laughable if it weren’t so dangerous. Follow her “logic” to its inevitable conclusion: if merely being accused of breaking a law strips you of due process rights, then there is no rule of law at all. Under this framework, government agents need only accuse someone of a crime to justify trafficking them to a foreign prison camp. No evidence required. No hearing needed. Just an accusation.

This isn’t just wrong — it’s an explicit endorsement of exactly the kind of authoritarian system that Justice Jackson warned would “drift into oppression.” It creates a perfect circular logic: you lose your right to due process because you’re accused of a crime, and you have no way to challenge that accusation because you’ve lost your right to due process.

This is inhumane. It is unconscionably evil.

I tend to hate calling anyone’s actions “evil” as that’s a strong charge that feels loaded. But at some point you have to call it out for what it is. It is pure evil.

And just to confirm what kind of inhumane evil this all leads to, when confronted about the case of Abrego Garcia — who, again, the administration admits it wasn’t supposed to remove — Vice President JD Vance just flat out lied and claimed (falsely) that the court documents say he was a “convicted MS-13 gang member.”

It’s quite something for JD Vance to accuse others of not reading the court document when it becomes clear that it is he who did not read the court document. Nowhere does it say he was a convicted MS-13 gang member, and the DOJ’s own filing admits that he had a legal right to be here. Even the replies to Vance’s tweet include a number of MAGA supporters asking why Vance is just making shit up.

The mask is slipping so badly that even reliable MAGA cheerleaders are recoiling in horror. Joe Rogan has admitted that the human trafficking program is “horrific.” Even Rod Dreher — who loved authoritarianism so much he literally moved to Hungary to live under an authoritarian leader — is saying “whoa, dude, too far.”

This is the line that due process draws: between a government bound by law and one ruled by whim, between justice and terror, between civilization and barbarism. When Trump, Homan, Leavitt, and Spartz argue against due process, they aren’t just attacking a legal principle — they’re attacking the very foundation of the rule of law itself.

Their vision of America is one where government agents can disappear anyone they want based on nothing more than an accusation, where “administrative errors” are features rather than bugs, and where the mere act of questioning their actions is treated as treason. They’ve made it crystal clear that they don’t believe in due process, the rule of law, or any coherent moral philosophy beyond raw power used to inflict suffering on those they deem unworthy of basic human dignity.

This isn’t just un-American. It’s a deliberate embrace of the exact authoritarian evil that America was supposed to resist.

Filed Under: abrego garcia, andry hernandez, asylum, deportations, due process, el salvador, evil, human trafficking, jerce barrios, joe rogan, karoline leavitt, neri alvarado, rod dreher, rule of law, slave camps, tom homan, victoria spartz

Rogan Misses The Mark: How Zuck’s Misdirection On Gov’t Pressure Goes Unchallenged

from the reality-distortion-podcast dept

If you only remember two things about the government pressure campaign to influence Mark Zuckerberg’s content moderation decisions, make it these: Donald Trump directly threatened to throw Zuck in prison for the rest of his life, and just a couple months ago FCC Commissioner (soon to be FCC chair) Brendan Carr threatened Meta that if it kept on fact-checking stories in a way Carr didn’t like, he would try to remove Meta’s Section 230 protections in response.

Two months later — what do you know? — Zuckerberg ended all fact-checking on Meta. But when he went on Joe Rogan, rather than blaming those actual obvious threats, he instead blamed the Biden administration, because some admin officials sent angry emails… which Zuck repeatedly admits had zero impact on Meta’s actual policies.

Mark Zuckerberg may be done with fact-checking, but we can still fact-check Mark Zuckerberg. And especially some of the misleading narratives coming out of his latest interview with Joe Rogan.

Indeed, this very fact check may be a good example of what I talked about regarding Zuckerberg’s decision to end fact-checking, which is that it’s not as straightforward as some people think, as layers of bullshit may be presented misleadingly around a kernel of truth, and peeling back the layers is important for understanding.

Indeed, this is my second attempt at writing this article. I killed the first version soon after it hit 10,000 words and I realized no one was going to read all that. So this is a more simplified version of what happened, which can be summarized as: the actual threats came from the GOP, to which Zuckerberg quickly caved. The supposed threats from the Biden admin were overhyped, exaggerated, and misrepresented, and Zuck directly admits he was able to easily refuse those requests.

All the rest is noise.

I know that people who dislike Rogan dismiss him out of hand, but I actually think he’s often a good interviewer for certain kinds of conversations. He’s willing to speak to all sorts of people and even ask dumb questions, taking on the role of listeners/viewers. And that’s actually really useful (and enlightening) in certain circumstances.

Where it goes off the rails, such as here, is where (1) nuance and detail matter and (2) where the person he is interviewing has an agenda to push with a message that he knows Rogan will eat up, and knows Rogan does not understand enough to pick apart what really happened.

This is not the first time that Zuckerberg has gone on Rogan and launched a narrative by saying things that are technically true in a manner that is misleading, likely knowing that Rogan and his fans wouldn’t understand the nuances, and would run with a misleading story.

Two and a half years ago, he went on Joe Rogan and said that the FBI had warned the company about the potential for hack and leak efforts put forth by the Russians, which Rogan and a whole bunch of people, including the mainstream media, falsely interpreted as “the FBI told us to block the Hunter Biden laptop story.”

Except that’s not what he said. He was asked about the NY Post story (which Facebook never actually blocked, they only — briefly — blocked it from “trending”), and Zuckerberg very carefully worded his answer to say something that was already known, but which people not listening carefully might think revealed something new:

The background here is that the FBI came to us – some folks on our team – and was like ‘hey, just so you know, you should be on high alert. We thought there was a lot of Russian propaganda in the 2016 election, we have it on notice that basically there’s about to be some kind of dump that’s similar to that’.

But the fact that the FBI had sent out a general warning to all of social media to be on the lookout for disinfo campaigns like that was widely known and reported on way earlier. The FBI did not comment specifically on the Hunter Biden laptop story, nor did they tell Facebook (or anyone) to take anything down.

Still, that turned into a big thing, and a bunch of folks thought it was a big revelation. In part because when Zuck told that story to Rogan, Rogan acted like it was big reveal, because Rogan doesn’t know the background or the details or the fact that this had been widely reported. He also doesn’t realize there’s a huge difference between a general “be on the lookout” warning and a “hey, take this down!” demand, with the former being standard and the latter being likely unconstitutional.

In other words, Zuck has a history of using Rogan’s platform to spread dubious narratives, knowing that Rogan lacks the background knowledge to push back in the moment.

After that happened, I was at least open to the idea that Zuck just spoke in generalities and didn’t realize how Rogan and audience would take what he said and run with it, believing a very misleading story. But now that he’s done it again, it seems quite likely that this is deliberate. When Zuckerberg wants to get a misleading story out to a MAGA-friendly audience, he can reliably dupe Rogan’s listeners.

Indeed, this interview was, in many ways, similar to what happened two years ago. He was relating things that were already widely known in a misleading way, and Rogan was reacting like something big was being revealed. And then the media runs with it because they don’t know the details and nuances either.

This time, Zuckerberg talks about the supposed pressure from the Biden administration as a reason for his problematic announcement last week:

Rogan: What do you think started the pathway towards increasing censorship? Because clearly we were going in that direction for the last few years. It seemed like uh we really found out about it when Elon bought Twitter and we got the Twitter Files and when you came on here and when you were explaining the relationship with FBI where they were trying to get you to take down certain things that were true and real and certain things they tried to get you to limit the exposure to them. So it’s these kind of conversations. Like when did all that start?

So first off, note the framing of this question. It’s not accurate at all. Social media websites have always had content moderation/content policy efforts. Indeed, Facebook was historically way more aggressive than most. If you don’t, your platform fills up with spam, scams, abuse, and porn.

That’s just how it works. And, indeed, Facebook in the early days was aggressively paternalistic about what was — and what was not — allowed on its site. Remember its famously prudish “no nudity” policy? Hell, there was an entire Radiolab podcast about how difficult that was to implement in practice.

So, first, calling it “censorship” is misleading, because it’s just how you handle violations of your rules, which is why moderation is always a better term for it. Rogan has never invited me on his podcast. Is that censorship? Of course not. He has rules (and standards!) for who he platforms. So does Meta. Rejecting some speech is not “censorship”, it’s just enforcing your own rules on your own private property.

Second, Rogan himself is already misrepresenting what Zuckerberg told him two years ago about the FBI. Zuck did not say that the FBI was trying to get Facebook to “take down certain things that were true and real” and “limit the exposure to them.” They only said to be on the lookout for potential attempts by foreign governments to interfere with an election, leaving it up to the platforms to decide how to handle that.

On top of that, the idea that the simple fact of how content moderation works only became public with the Twitter Files is false. The Twitter Files revealed… a whole bunch of nothing interesting that idiots have misinterpreted badly. Indeed we know this because (1) we paid attention, and (2) Elon’s own legal team admitted in court that what people were misleadingly claiming about the Twitter Files wasn’t what was actually said.

From there, Zuck starts his misleading but technically accurate-ish response:

Zuck: Yeah, well, look, I think going back to the beginning, or like I was saying, I think you start one of these if you care about giving people a voice, you know? I wasn’t too deep on our content policies for like the first 10 years of the company. It was just kind of well known across the company that, um, we were trying to give people the ability to share as much as possible.

And, issues would come up, practical issues, right? So if someone’s getting bullied, for example, we deal with that, right? We put in place systems to fight bullying, you know? If someone is saying hey um you know someone’s pirating copyrighted content on on the service, it’s like okay we’ll build controls to make it so we’ll find IP protected content.

But it was really in the last 10 years that people started pushing for like ideological-based censorship and I think it was two main events that really triggered this. In 2016 there was the election of President Trump, also coincided with basically Brexit in the EU and sort of the fragmentation of the EU. And then you know in 2020 there was COVID. And I think that those were basically these two events where for the first time we just faced this massive massive institutional pressure to basically start censoring content on ideological grounds….

So this part is fundamentally, sorta, kinda accurate, which sets up the kernel of truth around which much bullshit will be built. It’s true that Zuck didn’t pay much attention to content policies on the site early on, but it’s nonsense that it was about “giving people a voice.” That’s Zuck retconning the history of Facebook. Remember, they only added things like the Newsfeed (which was more about letting people talk) when Twitter came about and Zuck freaked out that Twitter would destroy Facebook.

Second, he then admits that the company has always moderated, though he’s wrong that it was so reactive. From quite early on (as mentioned above) the company had decently strict content policies regarding how the site was moderated. And, really, much of that was based around wanting to make sure that users had a good experience on the site. So yes, things like bullying were blocked.

But what is bullying is a very subjective thing, and so much of content moderation is just teams trying to tell you to stop being such a jackass.

It is true that there was pressure on Facebook to take moderation challenges more seriously starting in 2016, and (perhaps?!?) if he had actually spent more time understanding trust & safety at that time, he would have a better understanding of the issues. But he didn’t, which meant that he made a mess of things, and then tried to “fix it” with weird programs like the Oversight Board.

But it also meant that he’s never, ever been good at explaining the inherent tradeoffs in trust & safety, and how some people are always going to dislike the choices you make. A good leader of a social network understands and can explain those tradeoffs. But that’s not Zuck.

Also, and this is important, Zuckerberg’s claims about pressure to moderate on “ideological” grounds are incredibly misleading. Yes, I’m sure some people were putting pressure on him around that, but it was far from mainstream and easy to ignore. People were asking him to stop potentially dangerous misinformation that was causing harm. For example, the genocide in Myanmar. Or information around COVID that was potentially legitimately dangerous.

In other words, it was really (like so much of trust & safety) an extension of the “no bullying” rule. The same was true of protecting marginalized groups like LGBTQ+ users or on issues like Black Lives Matter. The demands from users (not the government in those cases) were about protecting more marginalized communities from harassment and bullying.

I’m going to jump ahead because Zuck and Rogan say a lot of stupid shit here, but this article will get too long if I go through all of it. So let’s jump forward a couple of minutes, to where Zuckerberg really flubs his First Amendment 101 in embarrassing ways while trying to describe how Meta chose to handle moderation of COVID misinformation.

Zuckerberg: Covid was the other big one. Where that was also very tricky because you know at the beginning it was, you know, it’s like a legitimate “public health crisis,” you know, in the beginning.

And it’s… even people who are like the most ardent First Amendment defenders… that the Supreme Court has this clear precedent, that’s like all right you can’t yell fire in a crowded theater. There are times when if there’s an emergency your ability to speak can temporarily be curtailed in order to get an emergency under control.

So I was sympathetic to that at the beginning of Covid, it seemed like, okay you have this virus, seems like it’s killing a lot of people. I don’t know like we didn’t know at the time how dangerous it was going to be. So, at the beginning, it kind of seemed like okay we should give a little bit of deference to the government and the health authorities on how we should play this.

But when it went from, you know, two weeks to flatten the curve to… in like in the beginning it was like okay there aren’t enough masks, masks aren’t that important to, then, it’s like oh no you have to wear a mask. And you know all the, like everything, was shifting around. It just became very difficult to kind of follow.

In trying to defend Meta’s approach to COVID misinformation, Zuck manages to mangle First Amendment law in a way that’s both legally inaccurate and irrelevant to the actual issues at play.

There’s so much to unpack here. First off, he totally should have someone explain the First Amendment to him. He not only got it wrong, he even got it wrong in a way that is different than how most people get it wrong. We’ve covered the whole “fire in a crowded theater” thing so many times here on Techdirt, so we’ll do the abbreviated version:

1. It’s not a “clear precedent.” It’s not a precedent at all. It was an offhand comment (in legal terms: dicta, so not precedential) in a case about jailing someone for handing out anti-war literature (something most people today would recognize as pretty clearly a First Amendment problem).
2. The Justice who said it, Oliver Wendell Holmes, appeared to regret it almost immediately, and in a similar case very shortly thereafter changed his tune and became a much more “ardent First Amendment defender.”
3. Most courts and lawyers (though there are a few holdouts) insist that whatever precedent there was in Schenck (which again, did not include that line) was effectively overruled a half century later in a different case that rejected the test in Schenck and moved to the “incitement to imminent lawless action” test.

So, quoting “fire in a crowded theater” these days is generally used as a (very bad, misguided) defense of saying “well, there’s some speech that’s so bad it’s obviously unprotected,” but without being able to explain why this particular speech is unprotected.

But Zuck isn’t even using it in that way. He seems to have missed that the whole point of the Holmes dicta (again, not precedent) was to talk about falsely yelling fire. Zuck implies that the (not actual) test is “can we restrict speech if there’s an actual fire, an actual emergency.” And, that’s also wrong.

But, the wrongness goes one layer deeper as well, because the First Amendment only applies to restrictions the government can put on speakers, not what a private entity like Meta (or the Joe Rogan Experience) can do on their own private property.

And then, even once you get past that, Zuck isn’t wrong that there was a lot of confusion about COVID and health in the early days, including lots of false information that came under the imprimatur of “official” sources, but… dude, Meta deliberately made the decision to effectively let the CDC decide what was acceptable even after many people (us included!) pointed out how stupid it was for platforms to outsource their decisions on “COVID misinfo” to government agencies which almost certainly would get stuff wrong as the science was still unclear.

But it wasn’t the White House that pressured Zuck into following the CDC position. Meta (alone among the major tech platforms) publicly declared early in the pandemic (for what it’s worth, when Trump was still President) that its approach to handling COVID misinformation would be based on “guidance” from official authorities like the CDC and WHO. Many of us felt that this was actually Meta abdicating its role and giving way too much power to government entities in the midst of an unclear scientific environment.

But for him to now blame the Biden admin is just blatantly ahistorical.

And from there, it gets worse:

Zuckerberg: This really hit… the most extreme, I’d say, during it was during the Biden Administration, when they were trying to roll out um the vaccine program and… Now I’m generally, like, pretty pro rolling out vaccines. I think on balance the vaccines are more positive than negative.

But I think that while they’re trying to push that program, they also tried to censor anyone who was basically arguing against it. And they pushed us super hard to take down things that were honestly were true. Right, I mean they they basically pushed us and and said, you know, anything that says that vaccines might have side effects, you basically need to take down.

And I was just like, well we’re not going to do that. Like, we’re clearly not going to do that.

Rogan then jumps in here to ask “who is they” but this is where he’s showing his own ignorance. The key point is the last line. Zuckerberg says he told them “we’re not going to do that… we’re clearly not going to do that.”

That’s it. That’s the ballgame.

The case law on this issue is clear: the government is allowed to try to persuade companies to do something. That’s known as using the bully pulpit. What it cannot do is coerce a company into taking action on speech. And if Zuckerberg and Meta felt totally comfortable saying “we’re not going to do that, we’re clearly not going to do that,” then end of story. They didn’t feel coerced.

Indeed, this is partly what the Murthy case last year was about. And during oral arguments, Justices Kavanaugh and Kagan (both of whom had been lawyers in the White House in previous lives) completely laughed off the idea that White House officials couldn’t call up media entities and try to convince them to do stuff, even with mean language.

Here was Justice Kavanaugh:

JUSTICE KAVANAUGH: Do you think on the anger point, I guess I had assumed, thought, experienced government press people throughout the federal government who regularly call up the media and — and berate them. Is that — I mean, is that not —

MR. FLETCHER: I — I — I don’t want

JUSTICE KAVANAUGH: — your understanding? You said the anger here was unusual. I guess I wasn’t —

MR. FLETCHER: So that —

JUSTICE KAVANAUGH: — wasn’t entirely clear on that from my own experience.

Later on, he said more:

JUSTICE KAVANAUGH: You’re speaking on behalf of the United States. Again, my experience is the United States, in all its manifestations, has regular communications with the media to talk about things they don’t like or don’t want to see or are complaining about factual inaccuracies.

Justice Kagan felt similarly:

JUSTICE KAGAN: I mean, can I just understand because it seems like an extremely expansive argument, I must say, encouraging people basically to suppress their own speech. So, like Justice Kavanaugh, I’ve had some experience encouraging press to suppress their own speech.

You just wrote about editorial. Here are the five reasons you shouldn’t write another one. You just wrote a story that’s filled with factual errors. Here are the 10 reasons why you shouldn’t do that again.

I mean, this happens literally thousands of times a day in the federal government.

“Literally thousands of times a day in the federal government.” What happened was not even that interesting or unique. The only issue, and the only time it creates a potential First Amendment problem, is if there is coercion.

This is why the Supreme Court rejected the argument in the Murthy case that this kind of activity was coercive and violated the First Amendment. The opinion, written by Justice Coney Barrett, makes it pretty clear that the White House didn’t even apply that much pressure towards Facebook on COVID info beyond some public statements, and instead most of the communication was Facebook sending info to the government (both admin officials and the CDC) and asking for feedback.

The Supreme Court notes that Facebook changed its policies to restrict more COVID info before it had even spoken to people in the White House.

In fact, the platforms, acting independently, had strengthened their pre-existing content moderation policies before the Government defendants got involved. For instance, Facebook announced an expansion of its COVID–19 misinformation policies in early February 2021, before White House officials began communicating with the platform. And the platforms continued to exercise their independent judgment even after communications with the defendants began. For example, on several occasions, various platforms explained that White House officials had flagged content that did not violate company policy. Moreover, the platforms did not speak only with the defendants about content moderation; they also regularly consulted with outside experts.

All of this info is public. It was in the court case. It’s in the Supreme Court transcript of oral arguments. It’s in the ruling in the Supreme Court.

Yet Rogan acts like this is some giant bombshell story. And Zuckerberg just lets him run with it. And then, the media ran with it as well, even though it’s a total non-story. As Kagan said, attempts to persuade the media happen literally thousands of times a day.

It only violates the First Amendment if they move over into coercion, threatening retaliation for not listening. And the fact that Meta felt free to say no and didn’t change its policies makes it pretty clear this wasn’t coercion.

But, Zuckerberg now knows he’s got Rogan caught on his line and starts to play it up. Rogan first asks who was “telling you to take down things” and Zuckerberg then admits that he wasn’t actually involved in any of this:

Rogan: Who is they? Who’s telling you to take down things that talk about vaccine side effects?

Zuckerberg: It was people in the um in the Biden Administration I think it was um… you know I wasn’t involved in those conversations directly…

Ah, so you’re just relaying the information that was publicly available all along and which we already know about.

Rogan then does a pretty good job of basically explaining my Impossibility Theorem (he doesn’t call it that, of course), noting the sheer scale of Meta properties, and how most people can’t even comprehend the scale, and that mistakes are obviously going to happen. Honestly, it’s one of the better “mainstream” explanations of the impossibility of content moderation at scale

Rogan: You’re moderating at scale that’s beyond the imagination. The number of human beings you’re moderating is fucking insane. Like what is… what’s Facebook… what how many people use it on a daily basis? Forget about how many overall. Like how many people use it regularly?

Zuck: It’s 3.2 billion people use one of our services every day

Rogan: (rolls around) That’s…!

Zuck: Yeah, it’s, no, it’s wild

Rogan: That’s more than a third of the planet! That’s so crazy and it’s almost half of Earth!

Zuck: Well on a monthly basis it is probably.

Rogan: UGGH!

But just I want I want to say that though for there’s a lot of like hypercritical people that are conspiracy theorists and think that everybody is a part of some cabal to control them. I want you to understand that, whether it’s YouTube or all these and whatever place that you think is doing something that’s awful, it’s good that you speak because this is how things get changed and this is how people find out that people are upset about content moderation and and censorship.

But moderating at scale is insane. It’s insane. What we were talking the other day about the number of videos that go up every hour on YouTube and it’s banana. It’s bananas. That’s like to try to get a human being that is reasonable, logical and objective, that’s going to analyze every video? It’s virtually impossible. It’s not possible. So you got to use a bunch of tools. You got to get a bunch of things wrong.

And you have also people reporting things. And how how much is that going to affect things there. You could have mass reporting because you have bad actors. You have some corporation that decides we’re going to attack this video cuz it’s bad for us. Get it taken down.

There’s so much going on. I just want to put that in people’s heads before we go on. Like understand the kind of numbers that we’re talking about here.

Like… that’s a decent enough explanation of the impossibility of moderating content at scale. If Zuckerberg wanted to lean into that, and point out that this impossibility and the tradeoffs it creates makes all of this a subjective guessing game, where mistakes often get made and everyone has opinions, that would have been interesting.

But he’s tossed out the line where he wants to blame the Biden administration (even though the evidence on this has already been deemed unproblematic by the Supreme Court just months ago) and he’s going to feed Rogan some more chum to create a misleading picture:

Zuckerberg: So I mean like you’re saying I mean this is… it’s so complicated this system that I could spend every minute of all of my time doing this and not actually focused on building any of the things that we’re trying to do. AI glasses, like the future of social media, all that stuff.

So I get involved in this stuff, but in general we we have a policy team. There are people who I trust there. The people are kind of working on this on a day-to-day basis. And the interactions that um that I was just referring to, I mean a lot of this is documented… I mean because uh you know Jim Jordan and the the House had this whole investigation and committee into into the the kind of government censorship around stuff like this and we produced all these documents and it’s all in the public domain…

I mean basically these people from the Biden Administration would call up our team and like scream at them and curse. And it’s like these documents are… it’s all kind of out there!

Rogan: Gah! Did you record any of those phone calls? God!

Zuckerberg: I don’t no… I don’t think… I don’t think we… but but… I think… I want listen… I mean, there are emails. The emails are published. It’s all… it’s all kind of out there and um and they’re like… and basically it just got to this point where we were like, no we’re not going to. We’re not going to take down things that are true. That’s ridiculous…

Parsing what he’s saying here is important. Again, we already established above a few important facts that Rogan doesn’t understand, and either Zuck doesn’t understand or is deliberately being coy in his explanation: (1) government actors are constantly trying to persuade media companies regarding their editorial discretion and that’s not against the law in any way, unless it crosses the line into coercion, and Zuck is (once again) admitting there was no coercion and they had no problem saying no. (2) He’s basing this not on actual firsthand knowledge but on stuff that is “all kind of out there” because “the emails are published” and “it’s all in the public domain.”

Now, because I’m not that busy creating AI glasses (though I am perhaps working on the future of social media), I actually did pay pretty close attention to what happened with those published emails and the documents in the public domain, and Zuckerberg is misrepresenting things, either on purpose or because the false narrative filtered back to him.

The reason I followed it closely is because I was worried that the Biden administration might cross the First Amendment line. This is not the case of me being a fan of the Biden administration, whose tech policies I thought were pretty bad almost across the board. The public statements that the White House made, whether from then press secretary Jen Psaki or Joe Biden himself, struck me as stupid things to say, but they did not appear to cross the First Amendment line, though they came uncomfortably close.

So I followed this case closely, in part, because if there was evidence that they crossed the line, I would be screaming from the Techdirt rooftops about it.

But, over and over again, it became clear that while they may have walked up to the line, they didn’t seem to cross it. That’s also what the Supreme Court found in the Murthy case.

So when Zuckerberg says that there are published emails, referencing the “screaming and cursing,” I know exactly what he’s talking about. Because it was a highlight of the district court ruling that claimed the White House had violated the First Amendment (which was later overturned by the Supreme Court).

Indeed, in my write-up of that District Court ruling, I even called out the “cursing” email as an example that struck me as one of the only things that might actually be a pretty clear violation of the First Amendment. Here’s what I wrote two years ago when that ruling came out:

Most of the worst emails seemed to come from one guy, Rob Flaherty, the former “Director of Digital Strategy,” who seemed to believe his job in the White House made it fine for him to be a total jackass to the companies, constantly berating them for moderation choices he disliked.

I mean, this is just totally inappropriate for a government official to say to a private company:

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.”

But then I dug deeper and saw the filing where that quote actually comes from, realizing that the judge in the district court was taking it totally out of context. The ruling made it sound like Flaherty’s cursing outburst was in response to Facebook/Zuck refusing to go along with a content moderation demand.

If that were actually the case, then that would absolutely violate the First Amendment. The problem is that it’s not what happened. It was still inappropriate in general, but not an unconstitutional attack on speech.

What had happened was that Instagram had a bug that prevented the Biden account from getting more followers, and the White House was annoyed by that. Someone from Meta responded to a query, saying basically “oops, it was a bug, our bad, but it’s fixed now” and that response was forwarded to Flaherty, who acted like a total power-mad jackass with the “Are you guys fucking serious? I want an answer on what happened here and I want it today” response.

So here’s the key thing: that heated exchange had absolutely nothing to do with pressuring Facebook on its content moderation policies. That “public domain” “cursing” email is entirely about a bug that prevented the Biden account from getting more followers, and Rob throwing a bit of a shit fit about it.

As Zuck says (but notably no one on the Rogan team actually looks up), this is all “out there” in “the public domain.” Rogan didn’t look it up. It’s unclear if Zuckerberg looked it up.

But I did:

We can still find that response wholly inappropriate and asshole-ish. But it’s not because Facebook refused to take down information on vaccine side effects, as is clearly implied (and how Rogan takes it).

Indeed, Zuckerberg (again!) points out that the company’s response to requests to remove anti-vax memes was to tell the White House no:

Zuck: They wanted us to take down this meme of Leonardo DiCaprio looking at a TV talking about how 10 years from now or something um you know you’re going to see an ad that says okay if you took a Covid vaccine you’re um eligible you you know like uh for for this kind of payment like this sort of like class action lawsuit type meme.

And they’re like, “No, you have to take that down.” We just said, ‘No, we’re not going to take down humor and satire. We’re not going to take down things that are true.“

He then does talk about the stupid Biden “they’re killing people” comment, but leaves out the fact that Biden walked that back days later, admitting “Facebook isn’t killing people” and instead blaming people on the platform spreading misinformation and saying “that’s what I meant.”

But it didn’t change the fact that Facebook refused to take action on those accounts.

So even after he’s said multiple times that Facebook’s response to whatever comments came in from the White House was to tell them “no,” which is exactly what the Supreme Court made clear showed there was no coercion, Rogan goes on a rant as if Zuckerberg had just told him that they did, in fact, suppress the content the White House requested (something Zuck directly denied to Rogan multiple times, even right before this rant):

Rogan: Wow. [sigh] Yeah, it’s just a massive overstepping. Also, you weren’t killing people. This is the thing about all of this. It’s like they suppressed so much information about things that people should be doing regardless of whether or not you believe in the vaccine, regardless… put that aside. Metabolic health is of the utmost importance in your everyday life whether there’s a pandemic or there’s not and there’s a lot of things that you can do that can help you recover from illness.

It prevents illnesses. It makes your body more robust and healthy. It strengthens your immune system. And they were suppressing all that information and that’s just crazy. You can’t say you’re one of the good guys if you’re suppressing information that would help people recover from all kinds of diseases. Not just Covid. The flu, common cold, all sorts of different things. High doses of Vitamin C, D3 with K2 and magnesium. They were suppressing this stuff because they didn’t want people to think that you could get away with not taking a vaccine.

Dude, Zuck literally told you over and over again that they said no to the White House and didn’t suppress that content.

But Zuck doesn’t step in to correct Rogan’s misrepresentations, because he’s not here for that. He’s here to get this narrative out, and Rogan is biting hard on the narrative. Hilariously, he then follows it up by saying how the thing that Zuck just said didn’t happen, but which Rogan is chortling along as if it did happen, proves the evils of “distortion of facts” and…. where the hell is my irony font?

Rogan: This is a crazy overstep, but scared the shit out of a lot of people… redpilled as it were. A lot of people, because they realized like, oh, 1984 is like an instruction manual…

Zuck: Yeah, yeah.

Rogan: It’s like this is it shows you how things can go that way with wrong speak and with bizarre distortion of facts.

I mean, you would know, wouldn’t you, Joe?

From there, they pivot to a different discussion, though again, it’s Zuckerberg feeding Rogan lines about how the US ought to “protect” the US tech industry from foreign governments, rather than trying to regulate them.

A bit later on, there actually is a good discussion about the kinds of errors that are made in content moderation and why. Rogan (after spending so much time whining about the evils of censorship) suddenly turns around and says that, well, of course, Facebook should be blocking “misinformation” and “outright lies” and “propaganda”:

Rogan: But you do have to be careful about misinformation! And you have to be careful about just outright lies and propaganda complaints, or propaganda campaigns rather. And how do you differentiate?

Dude, like that’s the whole point of the challenge here. You yourself talked about the billions of people and how mistakes are made because so much of this is automated. But then you were misleadingly claiming that this info was taken down over demands from the government (which Zuckerberg clearly denied multiple times), and for you to then wrap back around to “but you gotta take down misinformation and lies and propaganda campaigns” is one hell of a swing.

But, as I said, it does lead to Zuck explaining how confidence levels matter, and how where you set those levels will cover both how much “bad” content gets removed, but also how much is left up and how much innocent content gets accidentally caught:

Zuck: Okay, you have some classifier that’s it’s trying to find say like drug content, right? People decide okay, it’s like the opioid epidemic is a big deal, we need to do a better job of cracking down on drugs and drug sales. Right, I don’t I don’t want people dealing drugs on our networks.

So we build a bunch of systems that basically go out and try to automate finding people who are who are dealing with dealing drugs. And then you basically have this question, which is how precise do you want to set the classifier? So do you want to make it so that the system needs to be 99% sure that someone is dealing drugs before taking them down? Do you want to to be 90% confident? 80% confident?

And then those correspond to amounts of… I guess the the statistics term would be “recall.” What percent of the bad stuff are you finding? So if you require 99% confidence then maybe you only actually end up taking down 20% of the bad content. Whereas if you reduce it and you say, okay, we’re only going to require 90% confidence now maybe you can take down 60% of the bad content.

But let’s say you say, no we really need to find everyone who’s doing this bad thing… and it doesn’t need to be as as severe as as dealing drugs. It could just be um I mean it could be any any kind of content of uh any kind of category of harmful content. You start getting to some of these classifiers might have you know 80, 85% Precision in order to get 90% of the bad stuff down.

But the problem is if you’re at, you know, 90% precision that means one out of 10 things that the classifier takes down is not actually problematic. And if you filter… if you if you kind of multiply that across the billions of people who use our services every day that is millions and millions of posts that are basically being taken down that are innocent.

And upon review we’re going to look at and be like this is ridiculous that this thing got taken down. Which, I mean, I think you’ve had that experience and we’ve talked about this for for a bunch of stuff over time.

But it really just comes down to this question of where do you want to set the classifiers so one of the things that we’re going to do is basically set them to… require more confidence. Which is this trade-off.

It’s going to mean that we will maybe take down a smaller amount of the harmful content. But it will also mean that we’ll dramatically reduce the amount of people who whose accounts were taken off for a mistake, which is just a terrible experience.

And that’s all a good and fascinating fundamental explanation of why the Masnick Impossibility Theorem remains in effect. There are always going to be different kinds of false positives and false negatives, and that’s going to always happen because of how you set the confidence levels of the classifiers.

Zuck could have explained that many of the other things that Rogan was whining about regarding the “suppression” of content around COVID (which, again, everyone but Rogan has admitted was based on Facebook’s own decision-making, not the US government), was quite often a similar sort of situation, where the confidence levels on the classifiers may have caught information it shouldn’t have, but which the company (at the time) felt had to be set at that level to make sure enough of the “bad” content (which Rogan himself says they should take down) gets caught.

But there is no recognition of how this part of the conversation impacts the earlier conversation at all.

There’s more in there, but this post is already insanely long, so I’ll close out with this: as mentioned in my opening, Donald Trump directly threatened to throw Zuck in prison for the rest of his life if Facebook didn’t moderate the way he wanted. And just a couple months ago, FCC Commissioner (soon to be FCC chair) Brendan Carr threatened Meta that if it kept on fact-checking stories in a way Carr didn’t like, he would try to remove Meta’s Section 230 protections in response.

None of that came up in this discussion. The only “government pressure” that Zuck talks about is from the Biden admin with “cursing,” which he readily admits they weren’t intimidated by.

So we have Biden officials who were, perhaps, mean, but not so threatening that Meta felt the need to bow down to them. And then we have Trump himself and leading members of his incoming administration who sent direct and obvious threats, which Zuck almost immediately bowed down to and caved.

And yet Rogan (and much of the media covering this podcast) claims he “revealed” how the Biden admin violated the First Amendment. Hell, the NY Post even ran an editorial pretending that Zuck didn’t go far enough because he didn’t reveal all of this in time for the Murthy case. And that’s only because the author doesn’t realize he literally is talking about the documents in the Murthy case.

The real story here is that Zuckerberg caved to Trump’s threats and felt fine pushing back on the Biden admin. Rogan at one point rants about how Trump will now protect Zuck because Trump “uniquely has felt the impact of not being able to have free speech.” That seems particularly ironic given the real story: Zuckerberg caved to Trump’s threats while pushing back on the Biden admin.

Zuckerberg knew how this would play to Rogan and Rogan’s audience, and he got exactly what he needed out of it. But the reality is that all of this is Zuck caving to threats from Trump and Trump officials, while feeling no coercion from the Biden admin. As social media continues to grapple with content moderation challenges, it would be nice if leaders like Zuckerberg were actually transparent about the real pressures they face, rather than fueling misleading narratives.

But that’s not the world we live in.

Strip away all the spin and misdirection, and the truth is inescapable: Zuckerberg folded like a cheap suit in the face of direct threats from Trump and his lackeys, while barely batting an eye at some sternly worded emails from Biden officials.

And that’s my fact check.

Filed Under: 1st amendment, brendan carr, coercion, content moderation, donald trump, fact checking, free speech, jawboning, joe biden, joe rogan, mark zuckerberg, podcast, rob flaherty
Companies: facebook, meta

Donald Trump And Joe Rogan Think Elon Musk’s Starlink Is Akin To Magic Pixie Dust

from the first-do-no-harm dept

To be very clear: SpaceX’s Starlink service can be a game changer for those completely out of range of broadband access. Getting several hundred megabits per second in the middle of nowhere is a decidedly good thing, assuming you can afford the $120 a month subscription and up front hardware costs.

But contrary to what many press outlets imply, it’s not magic. And it comes with a growing list of caveats.

The technology has been criticized for harming astronomical research via light pollution. Starlink customer service is largely nonexistent. It’s too expensive for the folks most in need of reliable broadband access. The nature of satellite physics and capacity means slowdowns and annoying restrictions are inevitable, and making it scale to meet real-world demand will be impossible. And Starlink was caught abusing taxpayer subsidies to get money it didn’t deserve.

In addition to screwing up research of the night sky, scientists warn that the steady parade of thousands of disposable, smaller low-Earth orbit satellites constantly burning up in orbit could release chemicals that could undermine the progress we’ve made repairing the ozone layer. To be clear this isn’t just a “Starlink problem.” There’s a bunch of companies, including Amazon, rushing into this space ass first.

So this week, a coalition over more than 100 space researchers signed a letter urging the FCC to perform an environmental review before allowing SpaceX to continue launching thousands of low-Earth-orbit (LEO) satellites:

“The environmental harms of launching and burning up so many satellites aren’t clear. That’s because the federal government hasn’t conducted an environmental review to understand the impacts. What we do know is that more satellites and more launches lead to more damaging gasses and metals in our atmosphere. We shouldn’t rush forward with launching satellites at this scale without making sure the benefits justify the potential consequences of these new mega-constellations being launched, and then re-entering our atmosphere to burn up and or create debris This is a new frontier, and we should save ourselves a lot of trouble by making sure we move forward in a way that doesn’t cause major problems for our future.”

“Hey, maybe you should think before you act,” is not a particularly lofty request, and I’m sure it will met with the usual nuanced understanding Musk fans (and his assorted Republican cheerleaders like the FCC’s Brendan Carr) are known for.

Musk has recently been leveraging Starlink as an election season wedge issue, falsely claiming that the Biden FCC’s refusal to slather him with unwarranted subsidies put Hurricane Helene victims at risk. Folks in the Elon Musk fan fiction universe see Starlink as some kind of pixie dust you can just sprinkle across the entirety of rural America to immediately solve the entirety of U.S. connectivity woes.

Exhibit A, from Joe Rogan’s recent interview with Trump:

JOE ROGAN: I used it recently in Utah in the mountains. It’s good.

DONALD TRUMP: Did you find it good?

JOE ROGAN: Oh, it’s phenomenal. It’s the size of an iPad. You just set it down on the ground, you get high speed internet. It’s incredible. It’s outstanding.

DONALD TRUMP: Just to show you. We’re spending a trillion dollars to get cables all over the country, right? Up to upstate areas where you have, like, two farms and they’re spending millions of dollars to advocate.

JOE ROGAN: Well, talk about the $42 billion that was wasted on this internet access program. They didn’t get anybody. They haven’t hooked up. Not one person. They spent $42 billion. They could have gotten Starlinks to everybody with that kind of money

DONALD TRUMP: For almost nothing. For a monthly charge.

JOE ROGAN: And it would have been incredible. And it’s high speed internet everywhere you want to go.

DONALD TRUMP: And he wanted to do that.

They’re talking about the $45+ billion in telecom subsidies headed to the states courtesy of the 2021 Covid relief and infrastructure bill bills (that Republicans voted against, but still somehow take credit for among their constituents). Some of that money is going to be wasted, but a lot of it is going to be building some incredible, ultra-fast fiber networks at speeds upwards of 10 Gbps, including community-owned and operated broadband networks taking direct aim at shitty, giant telecom monopolies.

Trump pulled the “$1 trillion” number out of his ass. And the “cables” he complains about funding “upstate” are billions of dollars of essential, high-capacity next-generation fiber connectivity that’s going to bring significantly faster speeds to countless schools, farms, businesses, libraries, community centers, and rural and suburban residents in red and blue states all over the country.

States are finalizing their plans now, and the reason it’s taking a little longer than usual is because state and federal governments, to their credit, actually tried to map broadband access this time before throwing billions of dollars at the problem. The NTIA is also, shockingly enough, trying to make sure that the companies taking taxpayer infrastructure bill money can actually deliver the speeds they promise (something the Trump FCC didn’t do, resulting in a bunch of legal chaos as companies defaulted on bids).

The NTIA correctly decided to prioritize this taxpayer money on funding more affordable, faster, and reliable fiber connections, filling in the gaps with stuff like 5G and fixed wireless. From there, it makes sense to fill in the remaining gaps with LEO satellite connectivity. But that involves also being realistic about the potential harms to the environment and research posed by these newer satellites.

So far, regulators haven’t even done that. As the scientists note, the FCC hasn’t even considered the environmental impact of tens of thousands of disposable LEO satellites constantly burning up in orbit year after year. Asking the FCC to do its job and do that shouldn’t be viewed as that big of a deal, but I’m sure that even this minimalistic ask will be treated like “government regulation run amok.”

Again, Starlink is a great tech if you can afford it (affordability is arguably now the primary obstacle for access for many), but when it comes to fixing the digital divide, it’s more of a niche solution than some kind of magical cure all. It’s nothing personal about Starlink or Musk, it’s simply physics. It simply can’t scale up to fully meet demand anytime soon. Musk himself has made this clear for years.

Only recently, once he realized he could leverage Starlink as a political prop to aid Trumpism, has Musk started acting like it’s some unlimited-capacity magic technology that the mean old liberal government is somehow trying to undermine.

Filed Under: donald trump, elon musk, fcc, fiber, joe rogan, leo, low earth orbit satellite, satellite, starlink, subsidies, telecom
Companies: spacex, starlink

Anti-Vax Doctor Hires Anti-Vax Lawyer To Threaten A Dallas Publication With A ‘Deafamation’ Lawsuit

from the riderinsertingstickinbicyclespokes.png dept

Spotify — the world’s most popular music streaming service — has hitched its wagon to Joe Rogan, a former comedian and reality TV host whose particular take on world events involves him inviting highly controversial guests onto his podcast and then just muttering “that’s wild” when they invoke insane conspiracy theories.

Rogan has drawn heat before, but not quite as much heat as was generated by him inviting Dallas cardiologist Peter McCullough, who “explained” that the reaction to the COVID pandemic was mostly a “mass psychosis event” and that a horse dewormer would be a better option than any of the multiple vaccinations available.

Rogan was duly mocked for hosting this man and his truly stupid ideas. Boycotts were called for, targeting Spotify for making Rogan the face of its podcasting wing by giving him an extremely lucrative contract. Spotify wasn’t necessarily in the wrong when it chose to pay Rogan quite a bit for providing exclusive content. But it had to know Rogan would cause problems, because Rogan has always caused problems.

The first one to fire back at Rogan was Neil Young, a rock artist who knows a little bit about music and streaming. But how much Young’s opinion matters is open to debate, since he was the artist who thought people wanted nothing more than a triangular music player to place uncomfortably close to their crotch while listening to recordings delivered in a proprietary format they couldn’t move to less uncomfortably-shaped music players.

Other artists with less stupid music delivery ideas followed suit. Soon, Spotify was backpedaling, but not far enough it would willingly separate itself from someone it considered to be a profitable, long-term investment. Page after page of internet criticism pointed out the stupidity of the Dallas cardiologist as well as Rogan’s long track record of inviting idiotic conspiracy theorists to his show to spout unchallenged, idiotic conspiracy theories.

D Magazine, a Dallas (TX)-oriented publication edited by Tim Rogers, was one of many offering critiques of the Dallas-based cardiologist with a headful of bad wiring. Its January article pointed out many questionable assertions by the not-so-good doctor, who suggested vaccinations were unnecessary because the spread of COVID was pretty much just a figment of the collective imagination.

One of McCullough’s top talking points is that the population is being “railroaded” into vaccination, rather than working on treating the disease. Rogan asks McCullough how so many physicians could go along with what he characterizes as poor treatment. “We think there are about 500 doctors who know what is going on in the United States,” McCullough says, of about 1 million nationwide. “The nurses are more awake than the doctors.”

“The doctors appear to be, like many of our leaders, are in what is called a mass formation psychosis,” McCullough says. This is when groupthink is so strong that it leads to tragedy, the physician says, citing mass suicides connected to cults. He adds that every prominent religious and international leader is under the same spell. Steps to mass psychosis include isolation, withdrawal of enjoyment, constant anxiety, and a single solution offered by an entity in authority. “Worldwide, everyone must take the vaccination,” he says.

The article, written by Will Maddox, dove deep and provided links and statements from medical professionals who contradicted the Dallas physician’s claims, which went completely unvetted during his appearance on Rogan’s incredibly popular podcast.

Joe Rogan can presumably afford good lawyers, what with his millions in contracts and endorsements. It appears Dr. Peter McCullough can’t. Instead of a good lawyer, he’s apparently retained the services of Parisa Fishback, who appears to be the sole proprietor and litigant of Fishback Law Group, a law firm that specializes in handling bankruptcy filings. Fishback does not appear qualified to handle defamation claims, as Tim Rogers points out for D Magazine.

Dr. Peter McCullough is a kook, and the lawyer who sent us a cease-and-desist letter on his behalf, Parisa Fishback, has a wonderful name but is not good at writing cease-and-desist letters. Again: that’s all in my opinion. Fishback is the president and general counsel of a California-based anti-vaccination-mandate-for-kids outfit called The Unity Project, on whose advisory council McCullough serves (facts). In addition to that work, she is a bankruptcy attorney and real estate broker (fact) who runs a charity that involves luxury cars (fact), which she has described thusly: “At Cars N’ Causes, we are driven to end slavery and are racing to save the lives of victims of human trafficking right here in America” (word play!). Fishback was the wrong choice to send a cease-and-desist letter based on a defamation claim (opinion), because, among other reasons, she spelled it “deafamation.” (Giggle.)

Yes, according to Fishback there’s a new form of libel out there and D Magazine has done it. Apparently it involves liberal use of ASL and the middle finger. “Deafamation” is when you are libel, as those with Twitter Law degrees say.

The letter [PDF] at least attempts to list what bankruptcy lawyer/poor speller Fishback believes to be libelous. But the attempt is inadvertently hilarious, since all it conveys is what the courts call “conclusory statements” that cannot be treated as actionable. Fishback doesn’t even bother to point out how this extended statement from D Magazine is knowingly false. The letter simply assumes that it is before making with the legal threats.

The defamatory statements include, but are not limited to, the following: “Another of McCullough’s talking points, which he also detailed before the Texas Senate, is that healthy people under 50 do not need to get the vaccine. The issue has been fact-checked and discredited by numerous authorities and plenty of empirical evidence, but interestingly enough, Rogan hosted a guest earlier this month who spoke to the risks of the vaccine compared to the virus in young people…. McCullough goes on to doubt the efficacy of the vaccines, saying that those who have already had COVID should not get vaccinated and that there have been very few people who get it twice. The omicron surge has proved that to be wrong again. In Dallas, 95 percent of the deaths at Parkland Hospital have been unvaccinated individuals.”

Fishback’s argument that these statements are false consist solely of her copy-pasting the legal definition of defamation into the C&D.

The other argument Fishback (barely) deploys is an appeal to authority:

Thus as a layperson and not a medical professional, you have defamed Dr. McCullough.

LOL.

On one hand, I desperately want the doctor to sue, especially if he retains Fishback to handle his “deafamation” claims. Hilarity is bound to ensue.

On the other hand, I don’t want D Magazine to have to spend real money defending itself against obvious bullshit. Fortunately, Texas (where the lawsuit would presumably be filed) has an anti-SLAPP law in place that would make it extremely risky to pursue BS defamation claims. Whatever legal fees D Magazine racks up defending itself from Dr. McCullough’s attempt to convert butthurt into an actionable claim very likely could end up being expenses he has to pay from his own pocket. Hopefully his attorney has apprised him of this possibility and, hopefully, has done so after allowing spellcheck to do its job.

Filed Under: defamation, joe rogan, misinformation, parisa fishback, peter mccullough, tim rogers, vaccines, will maddox
Companies: d magazine, the unity project

How Our Convoluted Copyright Regime Explains Why Spotify Chose Joe Rogan Over Neil Young

from the one-of-them-is-a-lot-more-costly dept

Spotify’s decision to hitch its star to podcaster and font-of-COVID-misinformation Joe Rogan has sparked a wave of pushback from musicians, some of whom–among them Neil Young, India Arie, and Joni Mitchell–have pulled their music from Spotify in protest. Spotify, for its part, has stood firmly by Rogan. 

That Spotify would stand by a show that consistently undermines vaccines and blithely spreads misinformation is disappointing–but, financially, it’s perfectly predictable. 

The short version: 

The law and economics of music streaming lead to one inevitable result: Spotify pays money when it streams music. It makes money when it streams podcasts. Therefore, Spotify has an incentive to keep people using Spotify — just not for music. 

The legal regime around music licensing makes breaking even — let alone turning a profit — nearly impossible. Because the industry is notoriously secretive about its financials (a problem in and of itself), raw data is hard to come by. But the fact remains that investors (and industry observers) agree that music streaming as a loss-leader — something that incurs a net loss for the service doing it, in the hopes of potentially looping consumers into the parent company’s product ecosystem. Apple Music and Amazon Music, the second and third largest streaming services by market share, both operate at a loss. Spotify, which has been in the US market since 2011, turned its first profit in 2021. It is still unclear whether it will manage to repeat the achievement. 

In short, experience indicates that a streaming service that plays only music will consistently lose money. And while this is a complex issue with many moving parts, one of the biggest is the law — the market it creates, and the behavior it incentivizes. 

But First, How Does Music Copyright Work?

Each track involves not one, but two copyrighted works; the recorded performance (the “sound recording”), and the underlying composition (the “musical work”). Legally, these are two distinct things. This is partly a historical artifact; songwriting hit its stride in the very early 20th century, before mass distribution of recorded music was even a glimmer in anyone’s eye. Compositions got copyright protection in 1906 (and were thus given the now-confusingly-vague designation of “musical work”). Over the first half of the century, publishers and performing rights organizations sprang up to promote, distribute, and license songwriters’ work. It wasn’t until mid-century that the recording industry began to flourish on its own, and sound recordings didn’t even gain copyright protection until the late 1970s.

Because of this history, the two industries – songwriting and recording – operate under wildly different licensing structures. Copyright is, at its core, a government-granted right to exclude; when one player starts to accumulate a high volume of those rights, the risk of abusive market behavior rises. The composition side of the equation messed around and found out early. By the 1940s, the government had intervened and set up a complex system of antitrust enforcement, rate-setting, and mandatory licensing regimes. The result was a market that, for all its faults, remains relatively stable and predictable for licensees (and, as a side benefit, provides some transparency on how songwriters are paid).

The recording industry, by contrast, gained its copyright (and thus its monopoly power) in the mid 1970s. By then, antitrust law was in the middle of a Chicago school backlash that considerably narrowed its scope and purpose and regulators had lost the taste for the kind of vigorous enforcement that marked the early part of the 20th century. While regulators in the 1940s were willing to go after the songwriting industry’s bad behavior (cartels, extractive pricing, strong arm tactics, etc) their counterparts in the late 1970s were less enthusiastic. And so, unlike their composition-side brothers, labels exist in an unconstrained free market. 

Why It’s So Hard For Streaming Services to Make Money

As mentioned above, we have very little hard and fast data about how much labels are charging and what kinds of side deals they are striking to extract value from these services. But given what we do know about the industry — and what the U.S. government has outright assumed is going on when doing things like setting royalty rates — we have a pretty good idea.

Because labels have no meaningful guardrails on their licensing practices, they are free to maximize their own profit however they see fit. When it comes to streaming, their ideal situation is to extract as much value as possible without forcing the service completely under. This means that licenses are priced with the assumption that the streaming service will have to take on some (ideally sustainable) amount of debt to cover their licensing obligations. The alternatives to this aren’t a whole lot better, either; things like equity stakes, sweetheart deals, and algorithmic preferencing or promotion are commonplace. 

The result of all this is that it is structurally impossible for a streaming service to turn a profit using standard music deals alone. Labels are rational economic actors. Profit is value that is not being captured by labels; labels will rationally set prices to ensure that none of that value goes un-captured. Labels have the power to shut a service down simply by walking away from the table. 

Why Spotify Can’t Quit Joe Rogan 

It means that, despite being a music streaming company, music is (and will always be) a revenue loss for Spotify. To have any hope of turning a profit, it needs a low-cost, high-revenue offering. Enter podcasts – specifically Rogan’s podcast, which commands a minimum ad buy of $1M, along with a commitment to buy other ads on Spotify-hosted podcasts. 

So, when forced to choose between retaining portions of its legacy music catalog and keeping one of the only offerings that actually makes the service money, Spotify made the obvious (if morally objectionable) choice. It chose Joe Rogan.

And barring a major overhaul of music licensing law, starting with sound recordings, this will keep happening. We’ll either end up in a world where all mainstream streaming services will be backed by deep-pocketed tech giants (such as Apple, Amazon, and Google), or where music services are stuck relying on non-music content to stay afloat–even when that content is harmful.

Meredith Rose is Senior Policy Counsel at Public Knowledge

Filed Under: business models, copyright, joe rogan, licensing, loss leaders, neil young, podcasts, streaming
Companies: spotify

We Shouldn't Call Michelle Obama's (And Joe Rogan's) Proprietary Exclusive Audio From Spotify A 'Podcast' Any More

from the spotify-exclusive-audio dept

In early 2019, after Spotify announced the purchase of podcast studio Gimlet Media, we worried that it signaled an end to the open world of podcasting. Part of what made podcasting so special is that, like the early parts of the internet, it was wide open. Anyone could make their own podcast, and just host it somewhere with an RSS feed and then anyone could listen to it via any podcast app or service they wanted. But Spotify is a mostly closed platform.

Our fears solidified a lot two months ago when Joe Rogan moved to Spotify (under a rumored $200 million deal), such that his insanely popular podcast will only be heard via Spotify going forward. As we said then, the world loses a lot when podcasts go into private silos (even if the podcasts are available for free). We start moving away from an open system that anyone can use, and which democratizes the creation and distribution of content, to much more of a traditional gatekeeper-run broadcast model. And that’s unfortunate, even if it’s understandable.

And now we have Michelle Obama announcing “The Michelle Obama Podcast,” which is exclusive to Spotify. Frankly, we should not call it a podcast any more when it’s not actually available for anyone to listen to on their own podcast apps. This is Spotify exclusive audio. That’s not a podcast.

I understand why we got here and why everyone involved did this. For Spotify, it will boost usage (as will the Rogan deal) of their app and once people start using it to listen to those exclusive podcasts, a lot of people will probably shift over and do all their podcast listening via Spotify as well. And I’m sure that, as with Rogan, Spotify is paying a lot to Michelle Obama to do this. And, of course, I’m sure the production value will be great.

But, still, it’s worth noting that this move to silo’d, locked up content is disappointing and a shame, as it’s yet another nail in the coffin for the promise of the truly open internet.

Open systems allow for more participation, more inclusiveness. Closed systems, by their very nature, create gatekeepers and exclusivity. That may be good in the short term for certain business interests, but it’s bad in the long term for the public and speech interests. Spotify may very well be successful with this strategy, but the least we can do is stop confusing the closed, exclusive, gatekeepered system with the open, inclusive ecosystem.

Filed Under: closed, joe rogan, michelle obama, open, podcasts
Companies: spotify

We Lose A Lot When Podcasts Go Closed Instead Of Open

from the bad-digital-citizenship dept

Just last week, Ben Thompson’s excellent Stratechery site had a great post describing the important differences between open and free, specifically with regards to podcasts. The occasion was his decision to launch a paid-for, but still “open” podcast. And he explains how there are important differences (in particular) between “open and for-pay” vs. “closed and free.” Open and for-pay means that it’s not locked down, and can work on a variety of different setups and open platforms. The payment is part of the business model, but the openness gives the end-users more control and freedom. In the software world, you might talk about this as “free as in speech” rather than “free as in beer.” The “free, but closed” model is one where you can get the products for free — but they’re locked in a proprietary system. Facebook is an example of free, but closed, for example.

Thompson was talking in particular about his own podcast (open, but paid) as compared to Spotify’s podcast strategy (free, but closed). Last year, when Spotify purchased a bunch of podcast companies, we worried that it foretold the end of the open world of podcasting. You can get a Spotify account for free, but unlike most podcast apps, you can’t get any podcast you want via Spotify. Spotify has to agree to host it, and as a podcast you have to “apply” (indeed, Techdirt’s own podcast was initially rejected by Spotify, though has since been let in). That’s a “closed, but free” setup. Most podcasts are both open and free — published as open MP3 files, using an open RSS feed that any regular podcast app can grab.

Spotify, so far, hadn’t done much to close off the podcasts that it had purchased, but perhaps that’s changing. Earlier this week it was announced that one of (if not) the most popular podcasts in the world, Joe Rogan’s, would now be moving exclusively to Spotify. News reports have said that Spotify paid over $100 million to get Rogan’s podcast on board, while some have put the number closer to $200 million.

While it’s totally understandable why Rogan would take that deal (who wouldn’t?), it does remain a sad day for the concept of an open internet. When we lock up content into silos, we all lose out. The entire concept of podcasts came from the open nature of the internet — combining MP3s and RSS to make it all work seamlessly and enabling anyone to just start broadcasting. The entire ecosystem came out of that, and putting it into silos and locking it up so that only one platform can control it is unfortunate. I’m sure it will get many people to move to Spotify’s podcasting platform, though, and that means those that do offer open podcasting apps (most others) will suffer, because most people aren’t going to want to use two different podcast apps.

Even if the initial economics make sense, it still should be seen as a sad day for the open internet that enabled podcasting to exist in the first place.

Filed Under: ben thompson, closed, joe rogan, open, podcasts
Companies: spotify