This week all nine Supreme Court justices found in favor of the NRA. Not because they all like what the NRA is selling (although some of them probably do) but because the behavior of New York State, to try to silence the NRA by threatening third parties, was so constitutionally alarming. If New York could get away with doing what it had done, and threaten a speaker’s business relationships as a means of punishing the speaker, then so could any other state against any other speaker, including those who might be trying to speak out against the NRA. Like with the 303 Creative decision, the merit of this decision does not hinge on the merit of the prevailing party, because it is one that serves to protect every speaker of any merit (including those at odds with, say, the preferred policies of states like Texas and Florida, which would cover those conveying pretty much every liberal viewpoint).
The decision was written by Justice Sotomayor, which was something of a welcome surprise given how she’s gotten the First Amendment badly wrong in some of her more recent jurisprudence, including her dissent in 303 Creative and her decision in the Warhol case, where its expressive protection was conspicuously, and alarmingly, absent from her analysis entirely. But in this case she produced a good and important decision that contemporizes earlier First Amendment precedent, and, importantly, in a way entirely consistent with it. In doing so the Court has strengthened the hand of advocates seeking to protect speakers from a certain type of injury that state actors have been trying to use to silence them.
The Court does not break new ground in deciding this case. It only reaffirms the general principle from Bantam Books that where, as here, the complaint plausibly alleges coercive threats aimed at punishing or suppressing disfavored speech, the plaintiff states a First Amendment claim. [p.18]
In these cases it’s not a direct injury, because the First Amendment pretty clearly says that state actors cannot directly silence expression they do not like (although, true, we still see cases where the government has nevertheless tried to go that route). What this decision says is that state actors also cannot try to silence speakers indirectly by threatening anyone they need to interact with to no longer interact with them.
[A] government official cannot do indirectly what she is barred from doing directly: A government official cannot coerce a private party to punish or suppress disfavored speech on her behalf. [p.11]
Here, the New York official, Vullo, pressured insurance companies she regulated to not do business with the NRA.
As superintendent of the New York Department of Financial Services, Vullo allegedly pressured regulated entities to help her stifle the NRA’s pro-gun advocacy by threatening enforcement actions against those entities that refused to disassociate from the NRA and other gun-promotion advocacy groups. Those allegations, if true, state a First Amendment claim. [p. 1]
As alleged Vullo did more than argue that the companies not do business with the NRA, which might be a legitimate exercise of a government official’s ability to try to persuade.
A government official can share her views freely and criticize particular beliefs, and she can do so forcefully in the hopes of persuading others to follow her lead. In doing so, she can rely on the merits and force of her ideas, the strength of her convictions, and her ability to inspire others. What she cannot do, however, is use the power of the State to punish or suppress disfavored expression. See Rosenberger, 515 U. S., at 830 (explaining that governmental actions seeking to suppress a speaker’s particular views are presumptively unconstitutional). In such cases, it is “the application of state power which we are asked to scrutinize.” NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 463 (1958). [p.8-9]
What she did also went beyond a legitimate exercise of regulatory authority.
In sum, the complaint, assessed as a whole, plausibly alleges that Vullo threatened to wield her power against those refusing to aid her campaign to punish the NRA’s gun-promotion advocacy. If true, that violates the First Amendment. [p.15]
[A]lthough Vullo can pursue violations of state insurance law, she cannot do so in order to punish or suppress the NRA’s protected expression. So, the contention that the NRA and the insurers violated New York law does not excuse Vullo from allegedly employing coercive threats to stifle gun-promotion advocacy. [p.17]
It was using that regulatory authority against a third party as a means of punishing a speaker for its views that violated the First Amendment.
As discussed below, Vullo was free to criticize the NRA and pursue the conceded violations of New York insurance law. She could not wield her power, however, to threaten enforcement actions against DFS-regulated entities in order to punish or suppress the NRA’s gun-promotion advocacy. Because the complaint plausibly alleges that Vullo did just that, the Court holds that the NRA stated a First Amendment violation. [p.8]
Nothing in this case gives advocacy groups like the NRA a “right to absolute immunity from [government] investigation,” or a “right to disregard [state or federal] laws.” Patterson, 357 U. S., at 463. Similarly, nothing here prevents government officials from forcefully condemning views with which they disagree. For those permissible actions, the Constitution “relies first and foremost on the ballot box, not on rules against viewpoint discrimination, to check the government when it speaks.” Shurtleff v. Boston, 596 U. S. 243, 252 (2022). Yet where, as here, a government official makes coercive threats in a private meeting behind closed doors, the “ballot box” is an especially poor check on that official’s authority. Ultimately, the critical takeaway is that the First Amendment prohibits government officials from wielding their power selectively to punish or suppress speech, directly or (as alleged here) through private intermediaries. [p.19]
This decision is not the first time that courts have said no to this sort of siege warfare state officials have tried to wage against speakers they don’t like, to cut them off from relationships the speakers depend on when they can’t attack the speakers directly.
The NRA’s allegations, if true, highlight the constitutional concerns with the kind of intermediary strategy that Vullo purportedly adopted to target the NRA’s advocacy. Such a strategy allows government officials to “expand their regulatory jurisdiction to suppress the speech of organizations that they have no direct control over.” Brief for First Amendment Scholars as Amici Curiae Supporting Petitioner 8. It also allows government officials to be more effective in their speech-suppression efforts “[b]ecause intermediaries will often be less invested in the speaker’s message and thus less likely to risk the regulator’s ire.” [p.19]
One such earlier decision that we’ve discussed here is Backpage v. Dart, where the Seventh Circuit said no to government actors flexing their enforcement muscles against third parties in a way calculated to hurt the speaker they are really trying to target. But instead of there being just a few such decisions binding on just a few courts, suddenly there is a Supreme Court decision saying no to this practice now binding on all courts.
The big question for the moment is what happens next. There are still several cases pending before the Supreme Court – the two NetChoice/CCIA cases and Murthy v. Missouri – which all involve questions of whether the government has acted in a way designed to silence a speaker. The NetChoice/CCIA cases are framed a bit differently than this case, with the central question being whether state regulation of a platform directly implicates the platform’s own First Amendment rights, but for the Court to rule in NetChoice and CCIA’s favor and find that platforms do have such rights it would need to recognize that what Texas and Florida are trying to do in regulating Internet platforms is punish viewpoints they don’t favor. But if the Court could recognize that sort of viewpoint punishment is what the state of New York was trying to do indirectly here, perhaps it can also recognize that these other states are trying to do it directly there.
Meanwhile, in Murthy v. Missouri, the legal question is closer to the one raised here, and indeed the case was even heard on the same day. In that case the federal government is alleged to have unconstitutionally pressured platforms to cut certain speakers off from their services. It would be the same unconstitutional mechanics, to punish a speaker by coming after a third party the speaker depends on, but as even this decision suggests, only if the conduct of the government was in fact coercive and not simply an expression of preference the platforms were free to take or leave.
Which is why the concurrences from Justices Gorsuch and Jackson may be meaningful, if not for this NRA case but for others. With the latter concurrence Jackson appears to want to ensure that government actors are not chilled from exercising legitimate enforcement authority if they also disfavor the speaker who is in their regulatory sights.
The lesson of Bantam Books is that “a government official cannot do indirectly what she is barred from doing directly.” Ante, at 11. That case does not hold that government coercion alone violates the First Amendment. And recognizing the distinction between government coercion and a First Amendment violation is important because our democracy can function only if the government can effectively enforce the rules embodied in legislation; by its nature, such enforcement often involves coercion in the form of legal sanctions. The existence of an allegation of government coercion of a third party thus merely invites, rather than answers, the question whether that coercion indirectly worked a violation of the plaintiff’s First Amendment rights. [p.2 Jackson concurrence]
In her view, the earlier Bantam Books case the decision is rooted in is not the correct precedent; Jackson would instead look at cases challenging retaliatory actions by the government as a First Amendment violation, and here she thinks that analytical shoe better fits.
[It] does suggest that our First Amendment retaliation cases might provide a better framework for analyzing these kinds of allegations—i.e., coercion claims that are not directly related to the publication or distribution of speech. And, fortunately for the NRA, the complaint in this case alleges both censorship and retaliation theories for how Vullo violated the First Amendment—theories that, in my opinion, deserve separate analyses. [p.4 Jackson concurrence]
As for the Gorsuch concurrence, it is quite brief, and follows here in its entirety:
I write separately to explain my understanding of the Court’s opinion, which I join in full. Today we reaffirm a well-settled principle: “A government official cannot coerce a private party to punish or suppress disfavored speech on her behalf.” Ante, at 11. As the Court mentions, many lower courts have taken to analyzing this kind of coercion claim under a four-pronged “multifactor test.” Ibid. These tests, the Court explains, might serve “as a useful, though nonexhaustive, guide.” Ante, at 12. But sometimes they might not. Cf. Axon Enterprise, Inc. v. FTC, 598 U. S. 175, 205–207 (2023) (G ORSUCH , J., concurring in judgment). Indeed, the Second Circuit’s decision to break up its analysis into discrete parts and “tak[e] the [complaint’s] allegations in isolation” appears only to have contributed to its mistaken conclusion that the National Rifle Association failed to state a claim. Ante, at 15. Lower courts would therefore do well to heed this Court’s directive: Whatever value these “guideposts” serve, they remain “just” that and nothing more. Ante, at 12. “Ultimately, the critical” question is whether the plaintiff has “plausibly allege[d] conduct that, viewed in context, could be reasonably understood to convey a threat of adverse government action in order to punish or suppress the plaintiff ’s speech.” Ante, at 12, 19.
What seems key to him is the last line, and reads like a canary of an issue potentially splitting the Court in Murthy, where there the government clearly engaged in communications with intermediary platforms but the question is whether those communications amounted to attempts at persuasion, which is lawful, or coercion, which is not.
Meanwhile, this case itself will now be remanded. The Court ruled based on the facts as the NRA pled them – as was procedurally proper to do at this stage of the litigation – but it’s conceivable that when put to a standard of proof there won’t be enough to maintain its First Amendment claim. And even if the claim survives, the state for its part can still litigate whether it has an immunity defense to this alleged constitutional injury. So the matter has not yet been put to rest, but presumably the underlying First Amendment question it raised now has.
Never underestimate the coercive power of law enforcement. Officers were so convinced Thomas Perez Jr. had murdered his “missing” father, they spent 17 hours torturing him into confessing to a crime no one had actually committed.
Perez Jr. initiated this. He called the police to report his father was missing, mistakenly assuming they’d help him, rather than hurt him. That initiated nearly a full 24-hour day of extreme coercion by so-called “investigators.” Perez was concerned because his father had taken the dog for a walk around 10 pm on August 7, 2018 but had never returned home.
According to court records, detectives told Perez that his father was dead, that they had recovered his body and it now “wore a toe tag at the morgue.” They said they had evidence that Perez killed his father and that he should just admit it, records show.
Perez insisted he didn’t remember killing anyone, but detectives allegedly told him that the human mind often tries to suppress troubling memories.
At one point during the interrogation, the investigators even threatened to have his pet Labrador Retriever, Margosha, euthanized as a stray, and brought the dog into the room so he could say goodbye. “OK? Your dog’s now gone, forget about it,” said an investigator.
The officers not only leveraged the family dog against Perez, they ignored his medical and mental health issues. They refused to allow him access to medication to treat his high blood pressure, asthma, and depression. They actually laughed as they watched him suffer through immense anguish as they threatened to kill his dog and continued to insist he was a murderer.
This is from last June’s decision denying qualified immunity to the police officers:
At one point while they are telling him to confess, he starts pulling at his own hair, hitting himself, making anguished noises, tears off his own shirt, and nearly falls to the floor. During this episode, the officers laugh at him and tell him that he is stressing out his dog.
They also straight up lied to him. They told him his father’s body had already been found. But that would have been impossible because Perez’s father wasn’t dead. It was only after Perez’s sister located their father and informed the police of this fact.
Perez’s nightmare ended shortly after police got a phone call from his sister, who said their father was alive and well. He had actually walked to the train station in Fontana and rode the line to Los Angeles County to visit a relative and then took a bus to visit a female friend, Steering said. Perez Sr. later went to the airport to await a flight to Oakland to visit his daughter.
Police picked up the father at the airport and brought him to the Fontana station.
Somehow, that still didn’t end the cops’ interest in Perez. They obtained a warrant to search Perez’s house for evidence of an “assault” of an “unknown victim.” This was apparently justified by the discovery of blood during the execution of another warrant (the blood was later determined to be the result of Perez’s father’s blood tests for his diabetes” and the cops’ dog’s supposed “detection” of the odor of a “corpse” in the house).
Since cops like these ones tend to believe the first or easiest-to-nab suspect must be the guilty party, Fontana (CA) residents will now be paying $900,000 to cover the tab of officers — three of whom are still employed by the PD — who tortured a man into confessing to a crime that never actually happened.
And it’s not as though these cops ever admitted to doing anything wrong, despite the fact that the interrogation was captured on film, making it impossible to deny they did the awful things they did to Perez. Instead, they thought they should be allowed to walk away from this lawsuit because (in their own words) no reasonable officer would understand that torturing a man, accusing him of crimes that never happened, threatening to kill his dog, and denying him access to needed medication might be a violation of his rights.
From last June’s decision, which says things you’d think no one would actually have to say to law enforcement officers:
There is no legitimate government interest that would justify treating Perez in this manner while he was in medical distress, since the FPD already had two warrants to search his person and property, and he was already essentially in custody and unable to flee or tamper with any evidence.
[…]
Perez’s substantive due process right against psychological torture of this nature was “clearly established” at the time of the incident, to a degree that “every reasonable officer would have understood that what he was doing violates that right.”
That’s the only reason the city is paying. And it’s only getting around to it now, after managing to drag out litigation for nearly another entire year. But there was no way putting this case in front of a jury would have ended with an exoneration of the involved officers. So, to save them and their apparently ongoing careers, the city has graciously decided city residents should pay for the sins of city employees.
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.
One frustrating thing in following everything that has happened in the case that started out as Missouri v. Biden and is now Murthy v. Missouri at the Supreme Court, is that the case is full of lies. The whole case is kind of a mess for a variety of reasons. This includes the original plaintiffs (a mix of states and private actors, where it’s not clear why they’re all together, and it’s not clear that any of them have actual standing), as well as the framing and positioning of the case, including misrepresenting various elements of reality.
In some ways, this case is an uncomfortable one. I’ve spent years explaining why government should stay the fuck out of any attempt to pressure companies to moderate in one way or another. I celebrated the Backpage v. Dart decision, as it gave a clear update to the Supreme Court’s Bantam Books case regarding coercing bookstores not to carry books. On top of that, I’ve found some of the actions by the Biden administration, in trying to convince companies to change their moderation practices, highly problematic. There were plenty of times they should have just shut up.
But it did not appear to me that anything they did crossed the line from persuasion and use of the bully pulpit (perfectly legal and expected) to coercion (a violation of the 1st Amendment). It could be argued that where you draw that line is complex, and people can draw the line in different places. Indeed, there would be an interesting Supreme Court case to be heard that looks at the proper place to draw such a line.
But this isn’t that case (nor is this that Supreme Court). And that’s mostly because the record in the lower courts is a total mess, full of made up fantasies that were accepted as real and accurate.
Just a few weeks ago, I had a good conversation with a very smart lawyer who comes down on the other side of this case than I do. I told him that the part that was most frustrating to me was that it felt like the administration was arguing this case as if one side (and some judges) hadn’t just made up a bunch of shit and insisted it was fact. This allowed people to suggest that there was actual evidence on the record of the White House crossing the line into coercion.
The problem is that the evidence isn’t really there.
And now, finally, the Biden administration has found its voice on this. Its reply brief leading up to the oral arguments later this month finally makes a pretty direct call out to the lies from below on the record.
As they did at the stay stage, respondents try to defend that startling result by invoking the district court’s factual findings—which they assert are “unrebutted,” Resp. Br. 2—to substantiate their allegations of widespread government censorship. But the government vigorously disputed the district court’s findings below, and the Fifth Circuit declined to rely on many of them— presumably because they are unsupported or demonstrably wrong. Gov’t Br. 9. Respondents’ presentation to this Court paints a profoundly distorted picture by pervasively relying on those debunked findings.
Respondents still have not identified any instance in which any government official sought to coerce a platform’s editorial decisions with a threat of adverse government action. Nor can respondents point to any evidence that the government ever imposed any sanction when the platforms declined to moderate content the government had flagged—as routinely occurred. Instead, respondents principally argue that government officials transformed private platforms into state actors subject to First Amendment constraints merely by speaking to the public on matters of public concern or seeking to influence or inform the platforms’ editorial decisions. The Court should reject that radical expansion of the state-action doctrine, which would “eviscerate certain private entities’ rights to exercise editorial control over speech and speakers on their properties or platforms.”
They even call out (finally!!!) the one email that keeps making the rounds: the email from Biden digital guy Rob Flaherty to Facebook. Like many others, when I first saw this as presented by the district court, I thought it was an actual example of the White House overstepping its bounds and said as much. But then, after looking at the more detailed record and context I realized that the plaintiffs and the judge totally misrepresented the email. It was actually about a technical problem regarding signups to the Biden campaign account, which Rob got angry about. But it was presented as him being angry about content moderation choices. In context, you realize this email (while intemperate) had nothing to do with coercing speech. It was venting about a technical glitch.
However, both the district court and the 5th Circuit falsely present it as being about content moderation, just as the plaintiffs did. And here, the White House finally calls bullshit on this (though in a footnote):
Although space does not permit a full treatment of the inaccuracies in respondents’ account of the White House’s communications, we offer one other example: As proof of supposedly “ominous and coercive” “threats,” respondents recount that in July 2021, “the White House emailed Facebook stating, ‘Are you guys fucking serious? I want an answer on what happened here and I want it today.’ ” Resp. Br. 8 (quoting J.A. 740). But that admittedly crude comment was asking for an answer about a “technical” problem affecting the President’s own Instagram account—it had nothing to do with moderating other users’ content.
It’s kinda frustrating that the case has gotten this far with that falsehood on the record.
The reply brief also seems to be targeting Justice Kavanaugh, who you might consider a natural to reflexively side with the states against Biden, but the DOJ’s brief leans heavily on the ruling in Halleck, which was written by Kavanaugh:
Respondents ask this Court to rewrite the “constitutional boundary between the governmental and the private,” Manhattan Community Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019), by affirming a sweeping and unprecedented injunction based on sweeping and unprecedented understandings of Article III standing, the state-action doctrine, and the proper scope of equitable relief. Respondents insist that any person can establish standing to challenge any action affecting any speech by any third party merely by asserting a desire to hear it—a proposition that would effectively abolish Article III’s limits in free-speech cases. Respondents seek to transform private social-media platforms’ editorial choices into state action subject to the First Amendment. And respondents do not deny that the injunction installs the district court as the overseer of the Executive Branch’s communications with and about the platforms, muzzling senior officials’ speech to the public and exposing thousands of employees to contempt should the court conclude that their statements run afoul of the Fifth Circuit’s novel and vague standards.
The DOJ highlights the astounding weakness of the underlying record, which points to vague statements made by administration officials, followed by policy decisions made by tech companies, and insisting the two are connected, without showing any actual connection. And that should be seen as problematic.
Respondents assert (Br. 19-22) that they suffered “direct” injuries because the government purportedly caused platforms to moderate content respondents had posted. But the Fifth Circuit did not find that any particular government action caused a platform to do anything to any content posted by respondents that the platform would not have done in “its ‘broad and legitimate discretion’ as an independent company,” Changizi v. HHS, 82 F.4th 492, 497 (6th Cir. 2023) (citation omitted); see Gov’t Br. 17-18.
Seeking to plug that gap, respondents cite (Br. 19- 21) various instances in which the platforms moderated their content—most of which involve COVID-19-related content posted at the height of the pandemic. But respondents make little effort to connect those acts by the platforms to any specific action by the government. They do not, for example, suggest that government officials specifically targeted their content. Instead, they urge a “birds-eye view” of traceability, Resp. Br. 19 (citation omitted), under which they presume that the relevant acts of content moderation are traceable to government officials merely because those officials made general statements about content moderation at around the same time, see id. at 21.
That generalized approach fails. The platforms have strong independent business incentives to moderate content, see C.A. ROA 18,445-18,453; the platforms actually did moderate respondents’ COVID-19-related content starting in 2020, long before the bulk of the government actions challenged here, see Gov’t Br. 18-19; and each cited moderation decision is consistent with the platforms’ independent application of their own policies, see, e.g., J.A. 787-794 (Hines); J.A. 797-801 (Hoft). Especially given that context, respondents’ bare timing-based speculation does not establish traceability
I’m almost wondering if the DOJ didn’t really take this case as seriously until recently, which is why it feels like they’re finally coming out swinging at this point.
Indeed, the filing admits what I’ve said all along: if the government actually did what the respondents claim, then absolutely this would be a First Amendment violation. The problem is that there’s no evidence that they actually did it. And that makes this a messy case. I’d like the Supreme Court to rule that the White House cannot take actions to coerce social media companies, because that’s the correct answer.
But how does a White House deal with an injunction that says “stop doing this stuff we insist you’re doing, even though you’re not”? The lack of clarity here means that the White House’s only option is to go way beyond what the First Amendment prohibits to avoid crossing a line drawn insisting that perfectly legitimate activity is violating the First Amendment.
So, the brief admits that “yes, you should blame us if we had done all those awful things, but we didn’t.”
No one disputes that the government would have violated the First Amendment if it had used threats of adverse government action to coerce private social-media platforms into moderating content. See Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 67-68 (1963); Gov’t Br. 23, 26-27. But no such threats occurred here
The filing also calls out how the district court judge (repeatedly) inserted false quotes (or misattributed the quotes to make them seem worse):
Respondents repeat the district court’s assertion that the former White House Press Secretary made a “threat of ‘legal consequences’ if platforms do not censor misinformation more aggressively.” Resp. Br. 41 (quoting J.A. 111) (brackets omitted). But notwithstanding the internal quotation marks in that passage, the Press Secretary never uttered the words “legal consequences.” See C.A. ROA 23,764- 23,791. Instead, the words the district court attributed to her came from respondents’ statement of facts. Id. at 26,476. Although we have highlighted this error before, see Gov’t C.A. Br. 30; Gov’t C.A. Reply Br. 9, respondents continue to repeat it.
The problem is not just the misquotation, but the absence of any statement in the relevant briefing that could plausibly be described as a threat of legal consequences. Respondents repeat the district court’s assertion that the Press Secretary “linked the threat of a ‘robust anti-trust program’ with” a purported “censorship demand.” Resp. Br. 40 (citation omitted). In fact, she did no such thing. When asked to respond to a Senator’s comment that “ ‘if the Big Tech oligarchs can muzzle the former President, what’s to stop them from silencing you?’,” the Press Secretary said (among other things) that the President “supports better privacy protections and a robust anti-trust program”—a natural response to a question about “ ‘oligarchs.’ ” C.A. ROA 609. Like the other press statements on which the Fifth Circuit relied, see Gov’t Br. 31-32, that response cannot plausibly be characterized as a threat of adverse action if the platforms failed to take specific acts of content moderation. Deeming such general comments about important matters of public policy coercive would make it impossible for the President and his senior advisors to communicate with the public—or even to respond to press questions—on policy matters involving the platforms.
The government also highlights that the general admission that it’s allowed to participate in the marketplace of ideas, so long as it doesn’t do anything specific, which is weird and unworkable.
Respondents cite no authority supporting their proposed dichotomy between “abstract” and “particular” advocacy in this context. Their reliance on Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam), is misplaced because that decision holds that speech is unprotected under the First Amendment when it imminently incites particular unlawful acts. Even setting aside the fact that the government’s entitlement to speak is not rooted in the First Amendment, the Court in Brandenburg did not purport to ascribe constitutional significance to the level of specificity used to encourage otherwise lawful actions, such as private platforms’ content-moderation decisions.
Respondents’ novel distinction between abstract and specific speech is also unworkable. President Roosevelt lambasted not all journalism, but only the muckraking variety; President Wilson complained about stories on a particular topic (the alleged presence of troops in Turtle Bay); and President Biden condemned specific videos about Osama Bin Laden that were circulating online. Gov’t Br. 24, 49. Which of those statements were sufficiently “abstract” to pass muster? Conversely, why were all of the statements at issue here—including public comments by the President, the Surgeon General, and others about the general problem of COVID-19 falsehoods—too specific? Respondents do not provide any answers, and none are apparent.
The DOJ brief also cites our own amicus brief, which called out how the injunction is so far-reaching that it even precludes companies (of their own free will) reaching out to government officials to inquire about certain information, which is completely ridiculous and unworkable:
The injunction flouts traditional equitable principles because it extends relief far beyond that required to redress any cognizable harm to respondents, and its vague terms would irreparably harm the government and the public by chilling a host of legitimate Executive Branch communications. Gov’t Br. 45-50. It also would harm the platforms and their customers by precluding the companies from voluntarily seeking governmental input and collaboration to improve the products they offer. E.g., id. at 44, 49; cf. Floor64 Amicus Br. 5-16.
Anyway, I still fear that this is an easy case for the Supreme Court to screw up big time. Many of the amicus briefs in favor of the states were absolutely crazy (a few were more serious). But this is (finally) a strong brief from the White House explaining the many, many ways in which this particular case is just stupid.
Of course, that won’t stop the Supreme Court from issuing a dumb ruling, but maybe it’ll at least give a few justices enough pause to realize how stupid this could get if they accept as accurate the lies told down below.
It was a busy December for the Copia Institute (and me), even just at the U.S. Supreme Court. In addition to filing (along with Bluesky and Mastodon admin Chris Riley) an amicus brief supporting NetChoice and CCIA in their combined cases, we also filed another one challenging the bizarre injunction imposed by the Fifth Circuit preventing the Biden Administration from communicating with technology companies.
Unlike in the NetChoice cases, where we supported their position, in this case, now captioned as Murthy v. Missouri, we filed in support of neither party. As we noted in our brief, we agree with the Biden Administration that the injunction is invalid and needs to be dissolved. But the interests that the Administration is seeking to vindicate – its own – are not the same as the interests we were trying to advance – namely everyone else’s, which this injunction threatens, even though no platform was ever a party to the litigation. It is also theoretically possible that the executive branch of the government could at some point exceed its constitutional bounds to pressure how others exercise their expressive rights. We disagree with the plaintiffs in this case that the executive branch so overstepped here, but would agree that if it did happen there should indeed be some remedy. But we filed this brief because no suitable remedy could ever look anything like what the Fifth Circuit came up with. Far from protecting anyone’s First Amendment rights, the Fifth Circuit itself instead became the state actor itself attacking them.
This case is separate from the NetChoice cases, but the issues raised in all of them are similar. The NetChoice cases address whether those who run Internet platforms have their own First Amendment rights in how they run them. We argued in those cases, and have argued allalong, that the answer must be yes, and that just like a newspaper can choose what articles to run a platform operator must be free to choose what user expression to facilitate or moderate away. And just because some platforms are run by entire companies shouldn’t change that analysis; the same freedom that someone like Chris Riley as an individual has to run his platform as he personally wishes shouldn’t be extinguished just because lots of individuals have gotten together to decide how to run their platform together.
But that expressive freedom is violated by the Fifth Circuit’s injunction in at least two big ways. One way is similar to how the states of Florida and Texas have tried to attack that editorial freedom at issue in the NetChoice cases. In all these cases, how platforms operate their sites is ending up subject to government control. In the NetChoice cases it is by the states themselves, seeking to override the platforms’ discretion via statutes, whereas in this case it is by the courts, through the use of the injunction that inherently shapes how platforms can do their moderation. The effect in all these cases is the same: platforms are no longer free to run their sites as they see fit; instead their choices are being constrained by government interference.
Because here the upshot to the injunction is that platforms can no longer make moderation decisions if those decisions happen to agree with those ever expressed to them by someone in the executive branch of the federal government. Platforms must therefore either make their decisions in an information vacuum, without any input from agencies that may have expertise in the subject the platforms might have wanted to consult, or, in the wake of any consultation, they can only choose to do the opposite of what the agency might have suggested. Per the Fifth Circuit, any consultation would otherwise inherently taint the decision and make it something the platforms can no longer freely choose to act in accordance with.
But the injunction doesn’t just violate platforms expressive rights to operate their sites as they see fit; it also chills their petitioning rights. The petitioning right exists in large part because democracy depends on the people being able to communicate their will to those who represent them. But this injunction interferes with the ability of the public to talk to their government by inhibiting government officials from engaging in those conversations.
And they are so inhibited even if the platforms want to have those conversations. As we pointed out in the brief, the Fifth Circuit had an infantilizing view of platforms, as if it could not imagine any reason that a platform would have for engaging with executive branch agency expertise except in order to receive instructions for how to moderate in accordance with executive branch wishes. It could not conceive that a platform might want to, say, inquire with an agency with expertise in vaccines as it sought to develop a good moderation policy on medical disinformation, or one with expertise in election security when trying to develop a moderation policy addressing disinformation in that area. In the Fifth Circuit’s view all such conversations were inherently corrupt and for no other purpose than to immediately conscript the platform to do the executive agency’s bidding. And so, thanks to the injunction, platforms no longer get to have those conversations, no matter how much they would want to have them.
But if all the above wasn’t bad enough, there was another problem with the Fifth Circuit decision that we highlighted in our brief, relating to the plaintiffs and the court finding standing to even entertain their claims, let alone grant an injunction based on them. This case was weird because it was brought by an unholy alliance of both private plaintiffs and state plaintiffs. As explained above, the private plaintiffs should not have been entitled to injunctive relief by the courts: even if their rights had been violated – and as we explained in the brief, they had not been – the court shouldn’t be able to remedy a rights violation by violating the rights of someone else. But for the court to have granted the state plaintiffs, Louisiana and Missouri, standing to bring their claims against the platforms represented its own constitutional horror. After all, as states, these plaintiffs are themselves state actors. And these state actors wanted to be able to force platforms to exercise their expressive rights as they preferred. Unlike Texas and Florida in the NetChoice cases, which tried to do it themselves, here Louisiana and Missouri tried to use the courts to do it. And, bizarrely, the courts let them.
Worse, by crediting the idea that these states had their own First Amendment rights (as states!) to be vindicated in this litigation, the Fifth Circuit validated the proposition that the states were somehow entitled to co-opt platforms to advance their own speech interests. But such co-opting is not what the First Amendment allows. As we reminded the Supreme Court, its own decision in 303 Creative made clear that states did not have the power to force platforms to favor certain speech. But by allowing Missouri and Louisiana to advance claims challenging how platforms exercised their speech rights, the Fifth Circuit handed these states the very power the Supreme Court just last year reminded that they did not have.
We’ve been following the bizarre and frequently problematic case initially brought by Louisiana and Missouri against the Biden administration, claiming that the administration’s coordination with researchers and pressure on social media companies regarding how they moderate content violates the first amendment. As we’ve said for quite some time, there are legitimate and important questions about the boundaries between government officials using the bully pulpit to persuade companies to act in a certain way (allowed) and using threats to coerce companies to act in a certain way (very much not allowed).
This area of law, generally referred to as “jawboning”, is tragically underdeveloped, and while we have a few cases like Bantam Books, Okwedy v. Molinari, and Backpage v. Dart, none of them set out a clear and understandable standard for where the line is. And now it looks like this case, now dubbed Murthy v. Missouri due to how it reached the Supreme Court, may become a key case in drawing that line. I just really wish the underlying facts of the case weren’t so… pathetically stupid.
Back in July, district court Judge Terry Doughty issued what was a batshit crazy ruling that not just accepted conspiracy theory nonsense as fact, but literally involved Doughty inserting words that were never said into statements made by people in order to make his ruling make any sense. That’s a problem. But the end result was that Doughty insisted that the (admittedly stupid and haphazard) methods by which the White House urged social media companies to deal with COVID disinfo were one of the most egregious “censorship” campaigns of all time.
As we noted at the time, even if you could argue that a few moves by the White House may have edged over the persuasion/coercion line, none seemed particularly problematic or egregious. Even then, Doughty issued a big list of prohibitions that effectively made it impossible for anyone in the government to ever talk to any disinformation researcher or anyone at a social media company ever again, even if it was to discuss things like actual foreign attacks on elections. That seemed… problematic.
The case went up to the 5th Circuit, which quickly issued a ruling that scaled back the prohibitions issued by Judge Doughty, throwing out nine of the ten prohibitions as going too far, and massively scaling back the one remaining prohibition to basically just a ban on coercive actions. It also cut out three of the government defendants, though, when pressed by the plaintiffs, added one back weeks later with no explanation, just by changing one paragraph to basically say “oh yeah, CISA too.”
And while I think the 5th Circuit’s decision that rolled back nearly all of the district court’s ruling was a lot closer to reasonable, it still did not put forth any clear boundaries or rules that would allow anyone to understand where the line is drawn between illegal coercion and perfectly reasonable persuasion. The Schroedinger-like reversal on CISA as to whether it was included in the injunction or not kinda put the exclamation point on the fact that the 5th Circuit’s opinion, while citing to the rules set forth in those cases named above, really did less than nothing to clarify what the standards or tests ought to be. While it argues that it applied the 2nd Circuit’s test for jawboning, it clearly did not do that with CISA, as no clear explanation is given for whether CISA violated the law or not in the two separate rulings. In one ruling it says they obviously did not. In the other, it says they obviously did.
That’s… not giving the guidance that any test needs.
And, so the case got appealed to the Supreme Court, initially by one of the defendants, US Surgeon General Vivek Murthy (hence the new name for the case). Except even that has happened in a weird and non-standard way. Murthy went to the Supreme Court’s shadow docket to ask it to put a stay on the 5th Circuit’s ruling, which Justice Alito initially did. And while Murthy’s petition made it clear that the shadow docket petition could be quickly followed by a full cert petition, things got weird with the 5th Circuit, which initially said it was rescinding its initial decision, then said it wasn’t, then issued that new one that roped in CISA. And it wasn’t even clear what actually happened to the initial petition. Alito had given it a deadline. Then extended the deadline. And then nothing at all happened.
Until today.
The Supreme Court has issued a stay on the 5th Circuit’s injunction (which itself is a modified version of Judge Doughty’s injunction), saying that it will treat the shadow docket petition for a stay as a full cert petition and grant the petition, agreeing to hear the case shortly.
The application for stay presented to JUSTICE ALITO and by him referred to the Court is granted. The preliminary injunction issued on July 4, 2023, by the United States District Court for the Western District of Louisiana, case No. 3:22–cv–01213, as modified by the United States Court of Appeals for the Fifth Circuit on October 3, 2023, case No. 23–30445, is stayed. The application for stay is also treated as a petition for a writ of certiorari, and the petition is granted on the questions presented in the application. The stay shall terminate upon the sending down of the judgment of this Court.
But, even then things are weird. Because Justices Alito, Thomas, and Gorsuch wrote a dissent, saying they didn’t think the application for the stay should have been granted at all, arguing that the prohibitions on the government communicating with social media companies didn’t seem to present any irreparable harm, and the claims of potential chilling effects seemed only “hypothetical.”
Under a straightforward application of the test we use in deciding whether to grant a stay, the Government’s application should be denied. To obtain a stay pending the disposition of a petition for a writ of certiorari, an applicant must show, among other things, “a likelihood that irreparable harm will result from the denial of a stay.” Hollingsworth v. Perry, 558 U. S. 183, 190 (2010) (per curiam). A stay is an “extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Resources Defense Council, Inc., 555 U. S. 7, 22 (2008) (discussing the similar standard for an injunction). Thus, the Government in this case must make a “clear showing” of irreparable harm. And to do that, it is not enough to “simply sho[w] some ‘possibility of irreparable injury.’” Nken v. Holder, 556 U. S. 418, 434 (2009). A mere “‘possibility’ standard is too lenient.” Id., at 435 (quoting Winter, 555 U. S., at 22). Instead, the Government must prove that irreparable harm is “likel[y].” Hollingsworth, 558 U. S., at 190. Here, the Government’s attempts to demonstrate irreparable harm do not come close to clearing this high bar.
Instead of providing any concrete proof that “harm is imminent,” White v. Florida, 458 U. S. 1301, 1302 (1982) (Powell, J., in chambers), the Government offers a series of hypothetical statements that a covered official might want to make in the future and that, it thinks, might be chilled. Application 36–38. But hypotheticals are just that—speculation that the Government “may suffer irreparable harm at some point in the future,” not concrete proof. White, 458 U. S., at 1302 (emphasis added). And such speculation does not establish irreparable harm. Nken, 556 U. S., at 434; see also Clapper v. Amnesty Int’l USA, 568 U. S. 398, 414, n. 5 (2013) (rejecting similar speculation as insufficient to establish an Article III standing injury).
But that’s wrong. The whole point of 1st Amendment arguments around chilling effects, which are often given credence by courts on “hypothetical” scenarios, is that the lack of clarity is itself a chilling effect that will lead them not to speak, and that alone is a problem.
The three justices also claim that they don’t see how any of the scenarios the government presents would actually be barred by the 5th Circuit’s (scaled back) injunction:
Moreover, it does not appear that any of the Government’s hypothetical communications would actually be prohibited by the injunction. Nor is any such example provided by the Court’s unreasoned order. The Government claims that the injunction might prevent “the President and the senior officials who serve as his proxies” from “speak[ing] to the public on matters of public concern.” Application 36; accord, id., at 3 (suggesting that the Fifth Circuit’s decision implicates “the use of the Office’s bully pulpit to seek to persuade Americans”). The President himself is not subject to the injunction, see Missouri v. Biden, 2023 WL 6425697, *33, and in any event, the injunction does not prevent any Government official from speaking on any matter or from urging any entity or person to act in accordance with the Government’s view of responsible conduct. The injunction applies only when the Government crosses the line and begins to coerce or control others’ exercise of their free-speech rights. Does the Government think that the First Amendment allows Executive Branch officials to engage in such conduct? Does it have plans for this to occur between now and the time when this case is decided?
But all of this is wrong. First of all, the claim that Biden is not included seems wrong? The injunction is issued against “the White House,” which seems like it would include the President. But, really, the latter half is the whole problem. The 1st Amendment already bars the government from crossing that line and acting coercively. But the problem with the 5th Circuit’s injunction is that it provides no clear way to know if anyone is crossing that line. And that’s what the petition is really arguing.
If the government parties don’t know how that line is drawn, then the only way to stay on the right side of it is to over restrict themselves. And that’s the chilling effect harm that they are talking about.
And it’s bizarre that Alito, Thomas, and (especially) Gorsuch, seem unable to recognize that.
Again, it would be good to get a clear ruling with a clear explanation of a test on how you draw that line between allowed persuasion and 1st Amendment-violating coercion. One hopes that the Supreme Court will do a good job of that, but given everything about this case so far, who the hell knows how that’s actually going to play out.
So, last Friday, the 5th Circuit released its opinion in the appeal of an absolutely ridiculous Louisiana federal court ruling that insisted large parts of the federal government were engaged in some widespread censorial conspiracy with social media, and barred large parts of the government from talking to social media companies and even academic researchers.
The 5th Circuit massively trimmed back the district court’s injunction, throwing out 9 of the 10 listed “prohibitions,” removing a bunch of the defendants, including CISA and Anthony Fauci’s NIAID, noting that there was no evidence they had done anything improper, and taking the one remaining prohibition, and basically chopping it back to be close to meaningless (basically “don’t coerce the companies.”)
I thought the 5th Circuit was right to use the tests that the 2nd and 9th Circuits used for “coercion,” but found the actual application of those tests to be… at best weird, and at worst potentially extremely problematic (especially in the case of the CDC defendant, where the ruling made no sense at all). That confused application of the facts to the test at hand presented a challenge for the administration, as it arguably provided zero useful guidance for the administration on how to not violate the injunction. And that’s because the court really laid out no clear way of applying the test that was coherent or understandable. It kinda made stuff up as it went along and said “that’s coercion,” even though it wasn’t clear what was actually coercive.
Even when the 5th Circuit highlighted, for example, quotes from the administration to social media companies, it never provided the context or details. In fact, it would provide tiny fragments (a few word phrases) without any indication of who said what, what websites in particular they were talking about, and what it actually meant in context. And that was a real problem, especially as the lower court took many quotes so out of context as to reverse their meaning (and in one case, added in words to make a quote say the opposite of what it really said).
That said, I still wondered if the Biden administration would actually ask the Supreme Court to review it, because the final ruling was pretty limited in scope, and there’s a real risk that this Supreme Court, which has become so political in nature, would make a decision that was much, much worse and much, much more problematic for the administration.
Apparently, the White House felt differently, and they’ve rushed to the Supreme Court to ask the Supreme Court to review things on the shadow docket. Justice Alito has now put a stay on the injunctions and asked for filings by this coming Wednesday to review the issue.
The White House’s application is worth reading. First, they challenge the standing of the plaintiffs in the case (five people who were moderated on social media, along with the states Louisiana and Missouri). The White House notes that even if you argue that the individuals who were moderated have standing, they faced moderation before the White House said anything (i.e., it was independent decisions by the companies):
The Fifth Circuit held that they have standing because their posts have been moderated by social-media platforms. But respondents failed to show that those actions were fairly traceable to the government or redressable by injunctive relief. To the contrary, respondents’ asserted instances of moderation largely occurred before the allegedly unlawful government actions. The Fifth Circuit also held that the state respondents have standing because they have a “right to listen” to their citizens on social media. App., infra, 204a. But the court cited no precedent for that boundless theory, which would allow any state or local government to challenge any alleged violation of any constituent’s right to speak.
The larger point, though, is the 1st Amendment arguments regarding the jawboning questions, with the White House pointing out that these rulings take away the government’s bully pulpit, where it is allowed to advocate for positions, it just can’t threaten or punish people for their speech:
Second, the Fifth Circuit’s decision contradicts fundamental First Amendment principles. It is axiomatic that the government is entitled to provide the public with information and to “advocate and defend its own policies.” Board of Regents v. Southworth, 529 U.S. 217, 229 (2000). A central dimension of presidential power is the use of the Office’s bully pulpit to seek to persuade Americans — and American companies — to act in ways that the President believes would advance the public interest. President Kennedy famously persuaded steel companies to rescind a price increase by accusing them of “ruthless[ly] disregard[ing]” their “public responsibilities.” John F. Kennedy Presidential Library & Museum, News Conference 30 (Apr. 11, 1962), perma.cc/M7DL-LZ7N. President Bush decried “irresponsible” subprime lenders that shirked their “responsibility to help” distressed homeowners. The White House, President Bush Discusses Homeownership Financing (Aug. 31, 2007), perma.cc/DQ8B-JWN4. And every President has engaged with the press to promote his policies and shape coverage of his Administration. See, e.g., Graham J. White, FDR and the Press (1979).
Of course, the government cannot punish people for expressing different views. Nor can it threaten to punish the media or other intermediaries for disseminating disfavored speech. But there is a fundamental distinction between persuasion and coercion. And courts must take care to maintain that distinction because of the drastic consequences resulting from a finding of coercion: If the government coerces a private party to act, that party is a state actor subject “to the constraints of the First Amendment.” Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1933 (2019). And this Court has warned against expansive theories of state action that would “eviscerate” private entities’ “rights to exercise editorial control over speech and speakers on their properties or platforms.” Id. at 1932.
The Fifth Circuit ignored those principles. It held that officials from the White House, the Surgeon General’s office, and the FBI coerced social-media platforms to remove content despite the absence of even a single instance in which an official paired a request to remove content with a threat of adverse action — and despite the fact that the platforms declined the officials’ requests routinely and without consequence. Indeed, the Fifth Circuit suggested that any request from the FBI is inherently coercive merely because the FBI is a powerful law enforcement agency. And the court held that the White House, the FBI, and the CDC “significantly encouraged” the platforms’ content-moderation decisions — and thus transformed those decisions into state action — on the theory that officials were “entangled” in the platforms’ decisions. App., infra, 235a. The court did not define that novel standard, but found it satisfied primarily because platforms requested and relied upon CDC’s guidance on matters of public health.
Of course, this is the entire debate about jawboning in a nutshell. Where is the line between persuasion and coercion? The White House is correct that the 5th Circuit’s ruling doesn’t lay out a clear test or application, and leaves things muddled, but part of the problem is that where that line is has always been kinda muddled.
And I’m not at all sure that this Supreme Court will properly construe that line.
However, as the White House notes (and I would agree) the discussion with regards to the CDC in particular is kind of unworkable:
The implications of the Fifth Circuit’s holdings are startling. The court imposed unprecedented limits on the ability of the President’s closest aides to use the bully pulpit to address matters of public concern, on the FBI’s ability to address threats to the Nation’s security, and on the CDC’s ability to relay publichealth information at platforms’ request. And the Fifth Circuit’s holding that platforms’ content-moderation decisions are state action would subject those private actions to First Amendment constraints — a radical extension of the state-action doctrine
The White House also points out that the unclear nature of the remaining injunction creates a burden on federal government employees:
Third, the lower courts’ injunction violates traditional equitable principles. An injunction must “be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979). Here, however, the injunction sweeps far beyond what is necessary to address any cognizable harm to respondents: Although the district court declined to certify a class, the injunction covers the government’s communications with all social-media platforms (not just those used by respondents) regarding all posts by any person (not just respondents) on all topics. And it forces thousands of government officials and employees to choose between curtailing their interactions with (and public statements about) social-media platforms or risking contempt should the district court conclude that they ran afoul of the Fifth Circuit’s novel and ill-defined concepts of coercion and significant encouragement.
I don’t necessarily disagree with any of that. The ruling (mainly in how it applies the test for coercion) is a mess, and the final injunction (while massively slimmed down from the lower court’s) is confusing and unclear.
But, still, given how much of a partisan political football this is, I can easily see the Supreme Court making things way, way worse.
It looks like there will be quick turnaround on the shadow docket issue that I’m guessing may lead to a further stay of the injunction, as the White House said it intends to file for a full normal cert petition in October, allowing the Supreme Court to hear the full case this term. So it would be easy for Alito to stay the injunction until the case is fully briefed and heard.
Again, I get where the White House is coming from. The 5th Circuit ruling has real issues, but it struck me as way less damaging than whatever else might come out of this process. But, I guess, in the long run, it’s better to have a full ruling on this issue from the Supreme Court. I’m just scared of what this particular Supreme Court will say.
We’re going to go slow on this one, because there’s a lot of background and details and nuance to get into in Friday’s 5th Circuit appeals court ruling in the Missouri v. Biden case that initially resulted in a batshit crazy 4th of July ruling regarding the US government “jawboning” social media companies. The reporting on the 5th Circuit ruling has been kinda atrocious, perhaps because the end result of the ruling is this:
The district court’s judgment is AFFIRMED with respect to the White House, the Surgeon General, the CDC, and the FBI, and REVERSED as to all other officials. The preliminary injunction is VACATED except for prohibition number six, which is MODIFIED as set forth herein. The Appellants’ motion for a stay pending appeal is DENIED as moot. The Appellants’ request to extend the administrative stay for ten days following the date hereof pending an application to the Supreme Court of the United States is GRANTED, and the matter is STAYED.
Affirmed, reversed, vacated, modified, denied, granted, and stayed. All in one. There’s… a lot going on in there, and a lot of reporters aren’t familiar enough with the details, the history, or the law to figure out what’s going on. Thus, they report just on the bottom line, which is that the court is still limiting the White House. But it’s at a much, much, much lower level than the district court did, and this time it’s way more consistent with the 1st Amendment.
The real summary is this: the appeals court ditched nine out of the ten “prohibitions” that the district court put on the government, and massively narrowed the only remaining one, bringing it down to a reasonable level (telling the U.S. government that it cannot coerce social media companies, which, uh, yes, that’s exactly correct).
But then in applying its own (perhaps surprisingly, very good) analysis, the 5th Circuit did so in a slightly weird way. And then also seems to contradict the [checks notes] 5th Circuit in a different case. But we’ll get to that in another post.
Much of the reporting on this suggests it was a big loss for the Biden administration. The reality is that it’s a mostly appropriate slap on the wrist that hopefully will keep the administration from straying too close to the 1st Amendment line again. It basically threw out 9.5 out of 10 “prohibitions” placed by the lower court, and even on the half a prohibition it left, it said it didn’t apply to the parts of the government that the GOP keeps insisting were the centerpieces of the giant conspiracy they made up in their minds. The court finds that CISA, Anthony Fauci’s NIAID, and the State Department did not do anything wrong and are no longer subject to any prohibitions.
The details: the state Attorneys General of Missouri and Louisiana sued the Biden administration with some bizarrely stupid theories about the government forcing websites to take down content they disagreed with. The case was brought in a federal court district with a single Trump-appointed judge. The case was allowed to move forward by that judge, turning it into a giant fishing expedition into all sorts of government communications to the social media companies, which were then presented to the judge out of context and in a misleading manner. The original nonsense theories were mostly discarded (because they were nonsense), but by quoting some emails out of context, the states (and a few nonsense peddlers they added as plaintiffs to have standing), were able to convince the judges that something bad was going on.
As we noted in our analysis of the original ruling, they did turn up a few questionable emails from White House officials who were stupidly trying to act tough about disinformation on social media. But even then, things were taken out of context. For example, I highlighted this quote from the original ruling and called it out as obviously inappropriate by the White House:
Things apparently became tense between the White House and Facebook after that, culminating in Flaherty’s July 15, 2021 email to Facebook, in which Flaherty stated: “Are you guys fucking serious? I want an answer on what happened here and I want it today.”
Except… if you look at it in context, the email has nothing to do with content moderation. The White House had noticed that the @potus Instagram account was having some issues, and Meta told the company that “the technical issues that had been affecting follower growth on @potus have been resolved.” A WH person received this and asked for more details. Meta responded with “it was an internal technical issue that we can’t get into, but it’s now resolved and should not happen again.” Someone then cc’d Rob Flaherty, and the quote above was in response to that. That is, it was about a technical issue that had prevented the @potus account from getting more followers, and he wanted details about how that happened.
So… look, I’d still argue that Flaherty was totally out of line here, and his response was entirely inappropriate from a professional standpoint. But it had literally nothing to do with content moderation issues or pressuring the company to remove disinformation. So it’s hard to see how it was a 1st Amendment violation. Yet, Judge Terry Doughty presented it in his ruling as if that line was about the removal of COVID disinfo. It is true that Flaherty had, months earlier, asked Facebook for more details about how the company was handling COVID disinfo, but those messages do not come across as threatening in any way, just asking for info.
The only way to make them seem threatening was to then include Flaherty’s angry message from months later, eliding entirely what it was about, and pretending that it was actually a continuation of the earlier conversation about COVID disinfo. Except that it wasn’t. Did Doughty not know this? Or did he pretend? I have no idea.
Doughty somehow framed this and a few other questionably out of context things as “a far-reaching and widespread censorship campaign.” As we noted in our original post, he literally inserted words that did not exist in a quote by Renee DiResta to make this argument. He claimed the following:
According to DiResta, the EIP was designed to “get around unclear legal authorities, including very real First Amendment questions” that would arise if CISA or other government agencies were to monitor and flag information for censorship on social media.
Except, if you read DiResta’s quote, “get around” does not actually show up anywhere. Doughty just added that out of thin air, which makes me think that perhaps he also knew he was misrepresenting the context of Flaherty’s comment.
Either way, Doughty’s quote from DiResta is a judicial fiction. He inserted words she never used to change the meaning of what was said. What DiResta is actually saying is that they set up EIP as a way to help facilitate information sharing, not to “get around” the “very real First Amendment questions,” and also not to encourage removal of information, but to help social media companies and governments counter and respond to disinformation around elections (which they did for things like misleading election procedures). That is, the quote here is about respecting the 1st Amendment, not “getting around” it. Yet, Doughty added “get around” to pretend otherwise.
He then issued a wide-ranging list of 10 prohibitions that were so broad I heard from multiple people within tech companies that the federal government canceled meetings with them on important cybersecurity issues, because they were afraid that any such meeting might violate the injunction.
So the DOJ appealed, and the case went to the 5th Circuit, which has a history of going… nutty. However, this ruling is mostly not nutty. It’s actually a very thorough and careful analysis of the standards for when the government steps over over the line in violating the 1st Amendment rights by pressuring speech suppression. As we’ve detailed for years, the line is whether or not the government was being coercive. The government is very much allowed to use its own voice to persuade. But when it is coercive, it steps over the line.
The appeals court analysis on this is very thorough and right on, as it borrows the important and useful precedents from other circuits that we’ve talked about for years, agreeing with all of them. Where is the line between persuasion and coercion?
Next, we take coercion—a separate and distinct means of satisfying the close nexus test. Generally speaking, if the government compels the private party’s decision, the result will be considered a state action. Blum, 457 U.S. at 1004. So, what is coercion? We know that simply “being regulated by the State does not make one a state actor.” Halleck, 139 S. Ct. at 1932. Coercion, too, must be something more. But, distinguishing coercion from persuasion is a more nuanced task than doing the same for encouragement. Encouragement is evidenced by an exercise of active, meaningful control, whether by entanglement in the party’s decision-making process or direct involvement in carrying out the decision itself. Therefore, it may be more noticeable and, consequently, more distinguishable from persuasion. Coercion, on the other hand, may be more subtle. After all, the state may advocate—even forcefully—on behalf of its positions
It points to the key case that all of these cases always lead back to, the important Bantam Books v. Sullivan case that is generally seen as the original case on “jawboning” (government coercion to suppress speech):
That is not to say that coercion is always difficult to identify. Sometimes, coercion is obvious. Take Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963). There, the Rhode Island Commission to Encourage Morality—a state-created entity—sought to stop the distribution of obscene books to kids. Id. at 59. So, it sent a letter to a book distributor with a list of verboten books and requested that they be taken off the shelves. Id. at 61–64. That request conveniently noted that compliance would “eliminate the necessity of our recommending prosecution to the Attorney General’s department.” Id. at 62 n.5. Per the Commission’s request, police officers followed up to make sure the books were removed. Id. at 68. The Court concluded that this “system of informal censorship,” which was “clearly [meant] to intimidate” the recipients through “threat of [] legal sanctions and other means of coercion” rendered the distributors’ decision to remove the books a state action. Id. at 64, 67, 71–72. Given Bantam Books, not-so subtle asks accompanied by a “system” of pressure (e.g., threats and followups) are clearly coercive.
But, the panel notes, that level of coercion is not always present, but it doesn’t mean that other actions aren’t more subtly coercive. Since the 5th Circuit doesn’t currently have a test for figuring out if speech is coercive, it adopts the same tests that were recently used in the 2nd Circuit with the NRA v. Vullo case, where the NRA went after a NY state official who encouraged insurance companies to reconsider issuing NRA-endorsed insurance policies. The 2nd Circuit ran through a test and found that this urging was an attempt at persuasion and not coercive. The 5th Circuit also cites the 9th Circuit, which even more recently tossed out a case claiming that Elizabeth Warren’s comments to Amazon regarding an anti-vaxxer’s book were coercive, ruling they were merely an attempt to persuade. Both cases take a pretty thoughtful approach to determining where the line is, so it’s good to see the 5th Circuit adopt a similar test.
For coercion, we ask if the government compelled the decision by, through threats or otherwise, intimating that some form of punishment will follow a failure to comply. Vullo, 49 F.4th at 715. Sometimes, that is obvious from the facts. See, e.g., Bantam Books, 372 U.S. at 62–63 (a mafiosi-style threat of referral to the Attorney General accompanied with persistent pressure and follow-ups). But, more often, it is not. So, to help distinguish permissible persuasion from impermissible coercion, we turn to the Second (and Ninth) Circuit’s four-factor test. Again, honing in on whether the government “intimat[ed] that some form of punishment” will follow a “failure to accede,” we parse the speaker’s messages to assess the (1) word choice and tone, including the overall “tenor” of the parties’ relationship; (2) the recipient’s perception; (3) the presence of authority, which includes whether it is reasonable to fear retaliation; and (4) whether the speaker refers to adverse consequences. Vullo, 49 F.4th at 715; see also Warren, 66 F.4th at 1207.
So, the 5th Circuit adopts a strong test to say when a government employee oversteps the line, and then looks to apply it. I’m a little surprised that the court then finds that some defendants probably did cross that line, mainly the White House and the Surgeon General’s office. I’m not completely surprised by this, as it did appear that both had certainly walked way too close to the line, and we had called out the White House for stupidly doing so. But… if that’s the case, the 5th Circuit should really show how they did so, and it does not do a very good job. It admits that the White House and the Surgeon General are free to talk to platforms about misinformation and even to advocate for positions:
Generally speaking, officials from the White House and the Surgeon General’s office had extensive, organized communications with platforms. They met regularly, traded information and reports, and worked together on a wide range of efforts. That working relationship was, at times, sweeping. Still, those facts alone likely are not problematic from a First-Amendment perspective.
So where does it go over the line? When the White House threatened to hit the companies with Section 230 reform if they didn’t clean up their sites! The ruling notes that even pressuring companies to remove content in strong language might not cross the line. But threatening regulatory reforms could:
That alone may be enough for us to find coercion. Like in Bantam Books, the officials here set about to force the platforms to remove metaphorical books from their shelves. It is uncontested that, between the White House and the Surgeon General’s office, government officials asked the platforms to remove undesirable posts and users from their platforms, sent follow-up messages of condemnation when they did not, and publicly called on the platforms to act. When the officials’ demands were not met, the platforms received promises of legal regime changes, enforcement actions, and other unspoken threats. That was likely coercive
Still… here the ruling is kinda weak. The panel notes that even with what’s said above the “officials’ demeanor” matters, and that includes their “tone.” To show that the tone was “threatening,” the panel… again quotes Flaherty’s demand for answers “immediately,” repeating Doughty’s false idea that that comment was about content moderation. It was not. The court does cite to some other “tone” issues, but again provides no context for them, and I’m not going to track down every single one.
Next, the court says we can tell that the White House’s statements were coercive because: “When officials asked for content to be removed, the platforms took it down.” Except, as we’ve reported before, that’s just not true. The transparency reports from the companies show how they regularly ignored requests from the government. And the EIP reporting system that was at the center of the lawsuit, and which many have insisted was the smoking gun, showed that the tech companies “took action” on only 35% of items. And even that number is too high, because TikTok was the most aggressive company covered, and they took action on 64% of reported URLs, meaning Facebook, Twitter, etc., took action on way less than 35%. And even that exaggerates the amount of influence because “take action” did not just mean “take down.” Indeed, the report said that only 13% of reported content was “removed.”
So, um, how does the 5th Circuit claim that “when officials asked for content to be removed, the platforms took it down”? The data simply doesn’t support that claim, unless they’re talking about some other set of requests.
One area where the court does make some good points is calling out — as we ourselves did — just how stupid it was for Joe Biden to claim that the websites were “killing people.” Of course, the court leaves out that three days later, Biden himself admitted that his original words were too strong, and that “Facebook isn’t killing people.” Somehow, only the first quote (which was admittedly stupid and wrong) makes it into the 5th Circuit opinion:
Here, the officials made express threats and, at the very least, leaned into the inherent authority of the President’s office. The officials made inflammatory accusations, such as saying that the platforms were “poison[ing]” the public, and “killing people.”
So… I’m a bit torn here. I wasn’t happy with the White House making these statements and said so at the time. But they didn’t strike me as anywhere near going over the coercive line. This court sees it differently, but seems to take a lot of commentary out of context to do so.
The concern about the FBI is similar. The court seems to read things totally out of context:
Fourth, the platforms clearly perceived the FBI’s messages as threats. For example, right before the 2022 congressional election, the FBI warned the platforms of “hack and dump” operations from “state-sponsored actors” that would spread misinformation through their sites. In doing so, the FBI officials leaned into their inherent authority. So, the platforms reacted as expected—by taking down content, including posts and accounts that originated from the United States, in direct compliance with the request.
But… that is not how anyone has described those discussions. I’ve seen multiple transcripts and interviews of people at the platforms who were in the meetings where “hack and dump” were discussed, and the tenor was more “be aware of this, as it may come from a foreign effort to spread disinfo about the election,” coming with no threat or coercion — just simply “be on the lookout” for this. It’s classic information sharing.
And the platforms had reason to be on the lookout for such things anyway. If the FBI came to Twitter and said “we’ve learned of a zero day hack that can allow hackers into your back end,” and Twitter responded by properly locking down their systems… would that be Twitter “perceiving the messages as threats,” or Twitter taking useful information from the FBI and acting accordingly? Everything I’ve seen suggests the latter.
Even stranger is the claim that the CDC was coercive. The CDC has literally zero power over the platforms. It has no regulatory power over them and now law enforcement power. So I can’t see how it was coercive at all. Here, the 5th Circuit just kinda wings it. After admitting that the CDC lacked any sort of power over the sites, it basically says “but the sites relied on info from the CDC, so it must have been coercive.”
Specifically, CDC officials directly impacted the platforms’ moderation policies. For example, in meetings with the CDC, the platforms actively sought to “get into [] policy stuff” and run their moderation policies by the CDC to determine whether the platforms’ standards were “in the right place.” Ultimately, the platforms came to heavily rely on the CDC. They adopted rule changes meant to implement the CDC’s guidance. As one platform said, they “were able to make [changes to the ‘misinfo policies’] based on the conversation [they] had last week with the CDC,” and they “immediately updated [their] policies globally” following another meeting. And, those adoptions led the platforms to make moderation decisions based entirely on the CDC’s say-so—“[t]here are several claims that we will be able to remove as soon as the CDC debunks them; until then, we are unable to remove them.” That dependence, at times, was total. For example, one platform asked the CDC how it should approach certain content and even asked the CDC to double check and proofread its proposed labels.
So… one interpretation of that is that the CDC was controlling site moderation practices. But another, more charitable (and frankly, from conversations I’ve had, way more accurate) interpretation was that we were in the middle of a fucking pandemic where there was no good info, and many websites decided (correctly) that they didn’t have epidemiologists on staff, and therefore it made sense to ask the experts what information was legit and what was not, based on what they knew at the time.
Note that in the paragraph above, the one that the 5th Circuit uses to claim that the platform polices were controlled by the CDC, it admits that the sites were reaching out to the CDC themselves, asking them for info. That… doesn’t sound coercive. That sounds like trust & safety teams recognizing that they’re not the experts in a very serious and rapidly changing crisis… and asking the experts.
Now, there were perhaps reasons that websites should have been less willing to just go with the CDC’s recommendations, but would you rather ask expert epidemiologists, or the team who most recently was trying to stop spam on your platform? It seems, kinda logical to ask the CDC, and wait until they confirmed that something was false before taking action. But alas.
Still, even with those three parts of the administration being deemed as crossing the line, most of the rest of the opinion is good. Despite all of the nonsense conspiracy theories about CISA, which were at the center of the case according to many, the 5th Circuit finds no evidence of any coercion there, and releases them from any of the restrictions.
Finally, although CISA flagged content for social-media platforms as part of its switchboarding operations, based on this record, its conduct falls on the “attempts to convince,” not “attempts to coerce,” side of the line. See Okwedy, 333 F.3d at 344; O’Handley, 62 F.4th at 1158. There is not sufficient evidence that CISA made threats of adverse consequences— explicit or implicit—to the platforms for refusing to act on the content it flagged. See Warren, 66 F.4th at 1208–11 (finding that senator’s communication was a “request rather than a command” where it did not “suggest[] that compliance was the only realistic option” or reference potential “adverse consequences”). Nor is there any indication CISA had power over the platforms in any capacity, or that their requests were threatening in tone or manner. Similarly, on this record, their requests— although certainly amounting to a non-trivial level of involvement—do not equate to meaningful control. There is no plain evidence that content was actually moderated per CISA’s requests or that any such moderation was done subject to non-independent standards.
Ditto for Fauci’s NIAID and the State Department (both of which were part of nonsense conspiracy theories). The Court says they didn’t cross the line either.
So I think the test the 5th Circuit used is correct (and matches other circuits). I find its application of the test to the White House kinda questionable, but it actually doesn’t bother me that much. With the FBI, the justification seems really weak, but frankly, the FBI should not be involved in any content moderation issues anyway, so… not a huge deal. The CDC part is the only part that seems super ridiculous as opposed to just borderline.
But saying CISA, NIAID and the State Department didn’t cross the line is good to see.
And then, even for the parts the court said did cross the line, the 5th Circuit so incredibly waters down the injunction from the massive, overbroad list of 10 “prohibited activities,” that… I don’t mind it. The court immediately kicks out 9 out of the 10 prohibited activities:
The preliminary injunction here is both vague and broader than necessary to remedy the Plaintiffs’ injuries, as shown at this preliminary juncture. As an initial matter, it is axiomatic that an injunction is overbroad if it enjoins a defendant from engaging in legal conduct. Nine of the preliminary injunction’s ten prohibitions risk doing just that. Moreover, many of the provisions are duplicative of each other and thus unnecessary.
Prohibitions one, two, three, four, five, and seven prohibit the officials from engaging in, essentially, any action “for the purpose of urging, encouraging, pressuring, or inducing” content moderation. But “urging, encouraging, pressuring” or even “inducing” action does not violate the Constitution unless and until such conduct crosses the line into coercion or significant encouragement. Compare Walker, 576 U.S. at 208 (“[A]s a general matter, when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position.”), Finley, 524 U.S. at 598 (Scalia, J., concurring in judgment) (“It is the very business of government to favor and disfavor points of view . . . .”), and Vullo, 49 F.4th at 717 (holding statements “encouraging” companies to evaluate risk of doing business with the plaintiff did not violate the Constitution where the statements did not “intimate that some form of punishment or adverse regulatory action would follow the failure to accede to the request”), with Blum, 457 U.S. at 1004, and O’Handley, 62 F.4th at 1158 (“In deciding whether the government may urge a private party to remove (or refrain from engaging in) protected speech, we have drawn a sharp distinction between attempts to convince and attempts to coerce.”). These provisions also tend to overlap with each other, barring various actions that may cross the line into coercion. There is no need to try to spell out every activity that the government could possibly engage in that may run afoul of the Plaintiffs’ First Amendment rights as long the unlawful conduct is prohibited.
The eighth, ninth, and tenth provisions likewise may be unnecessary to ensure Plaintiffs’ relief. A government actor generally does not violate the First Amendment by simply “following up with social-media companies” about content-moderation, “requesting content reports from social-media companies” concerning their content-moderation, or asking social media companies to “Be on The Lookout” for certain posts.23 Plaintiffs have not carried their burden to show that these activities must be enjoined to afford Plaintiffs full relief.
The 5th Circuit, thankfully, calls for an extra special smackdown Judge Doughty’s ridiculous prohibition on any officials collaborating with the researchers at Stanford and the University of Washington who study disinformation, noting that this prohibition itself likely violates the 1st Amendment:
Finally, the fifth prohibition—which bars the officials from “collaborating, coordinating, partnering, switchboarding, and/or jointly working with the Election Integrity Partnership, the Virality Project, the Stanford Internet Observatory, or any like project or group” to engage in the same activities the officials are proscribed from doing on their own— may implicate private, third-party actors that are not parties in this case and that may be entitled to their own First Amendment protections. Because the provision fails to identify the specific parties that are subject to the prohibitions, see Scott, 826 F.3d at 209, 213, and “exceeds the scope of the parties’ presentation,” OCA-Greater Houston v. Texas, 867 F.3d 604, 616 (5th Cir. 2017), Plaintiffs have not shown that the inclusion of these third parties is necessary to remedy their injury. So, this provision cannot stand at this juncture
That leaves just a single prohibition. Prohibition six, which barred “threatening, pressuring, or coercing social-media companies in any manner to remove, delete, suppress, or reduce posted content of postings containing protected free speech.” But, the court rightly notes that even that one remaining prohibition clearly goes too far and would suppress protected speech, and thus cuts it back even further:
That leaves provision six, which bars the officials from “threatening, pressuring, or coercing social-media companies in any manner to remove, delete, suppress, or reduce posted content of postings containing protected free speech.” But, those terms could also capture otherwise legal speech. So, the injunction’s language must be further tailored to exclusively target illegal conduct and provide the officials with additional guidance or instruction on what behavior is prohibited.
So, the 5th Circuit changes that one prohibition to be significantly limited. The new version reads:
Defendants, and their employees and agents, shall take no actions, formal or informal, directly or indirectly, to coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech. That includes, but is not limited to, compelling the platforms to act, such as by intimating that some form of punishment will follow a failure to comply with any request, or supervising, directing, or otherwise meaningfully controlling the social-media companies’ decision-making processes.
And that’s… good? I mean, it’s really good. It’s basically restating exactly what all the courts have been saying all along: the government can’t coerce companies regarding their content moderation practices.
The court also makes it clear that CISA, NIAID, and the State Department are excluded from this injunction, though I’d argue that the 1st Amendment already precludes the behavior in that injunction anyway, so they already can’t do those things (and there remains no evidence that they did).
So to summarize all of this, I’d argue that the 5th Circuit got this mostly right, and corrected most of the long list of terrible things that Judge Doughty put in his original opinion and injunction. The only aspect that’s a little wonky is that it feels like the 5th Circuit applied the test for coercion in a weird way with regards to the White House, the FBI, and the CDC, often by taking things dramatically out of context.
But the “harm” of that somewhat wonky application of the test is basically non-existent, because the court also wiped out all of the problematic prohibitions in the original injunction, leaving only one, which it then modified to basically restate the crux of the 1st Amendment: the government should not coerce companies in their moderation practices. Which is something that I agree with, and which hopefully will teach the Biden administration to stop inching up towards the line of threats and coercion.
That said, this also seems to wholly contradict the very same 5th Circuit’s decision in the NetChoice v. Paxton case, but that’s the subject of my next post. As for this case, I guess it’s possible that either side could seek Supreme Court review. It would be stupid for the DOJ to do so, as this ruling gives them almost everything they really wanted, and the probability that the current Supreme Court could fuck this all up seems… decently high. That said, the plaintiffs might want to ask the Supreme Court to review for just this reason (though, of course, that only reinforces the idea that the headlines that claimed this ruling was a “loss” for the Biden admin are incredibly misleading).
One has to think that Donald Trump judicial appointee Judge Terry Doughty deliberately waited until July 4th (when the courts are closed) to release his ruling on the requested preliminary injunction preventing the federal government from communicating with social media companies. The results of the ruling are not a huge surprise, given Doughty’s now recognized pattern of being willing to bend over backwards as a judge in support of Trumpist culture war nonsense in multiple cases in his short time on the bench. But, even so, there are some really odd things about the ruling.
As you’ll recall, Missouri and Louisiana sued the Biden administration, arguing that it had violated the 1st Amendment by having Twitter block the NY Post story about the Hunter Biden laptop. But that happened before Joe Biden took office, and it’s also completely false. While it remains a key Trumpist talking point that this happened, every bit of evidence from the Twitter Files has revealed that the government had zero communications with Twitter regarding the NY Post’s story.
Still, Doughty does what Doughty does, and in March rejected the administration’s motion to dismiss with a bonkers, conspiracy-theory laden ruling. Given that, it wasn’t surprising that he would then grant the motion for a preliminary injunction. But, even so, there are some surprising bits in there that deserve attention.
There are elements of the ruling that are good and could be useful, some that are bad, and some that are just depressingly ugly. Let’s break them down, bit by bit.
The Good
There are legitimate concerns about government intrusions into private companies and their 1st Amendment protected decisions. I still think that the best modern ruling on this is Backpage v. Dart, in which then appeals court Judge Richard Posner smacked Cook County Sheriff Thomas Dart around for his threats to credit card companies that resulted in them refusing to accept transactions for Backpage.com. There are some elements of that kind of ruling here, but the main difference was in that case, the coercive elements by Dart were clear, and here, many (but not all) are made up fantasyland stuff.
There were some examples in the lawsuit that did seem likely to cross the line, including having officials in the White House complaining about certain tweets and even saying “wondering if we can get moving on the process of having it removed ASAP.” That’s definitely inappropriate. 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.”
So having a ruling that highlights that the government should not be pressuring websites over speech is good to see.
Also, the ruling highlights that lawmakers threatening to revoke or modify Section 230 as part of the process of working the refs at these social media companies is a form of retaliation. This is a surprising finding, but a good one. We’ve highlighted in the past that politicians threatening to punish companies with regulatory changes in response to speech should be seen as a 1st Amendment violation, and had people yell at us (on both sides) about that. But here, Judge Doughty agrees, and highlights 230 reform as an example (though he’s a lot more credulous that 230 reform attempts between Republicans and Democrats are aligned).
With respect to 47 U.S.C. § 230, Defendants argue that there can be no coercion for threatening to revoke and/or amend Section 230 because the call to amend it has been bipartisan. However, Defendants combined their threats to amend Section 230 with the power to do so by holding a majority in both the House of Representatives and the Senate, and in holding the Presidency. They also combined their threats to amend Section 230 with emails, meetings, press conferences, and intense pressure by the White House, as well as the Surgeon General Defendants. Regardless, the fact that the threats to amend Section 230 were bipartisan makes it even more likely that Defendants had the power to amend Section 230. All that is required is that the government’s words or actions “could reasonably be interpreted as an implied threat.” Cuomo, 350 F. Supp. 3d at 114. With the Supreme Court recently making clear that Section 230 shields socialmedia platforms from legal responsibility for what their users post, Gonzalez v. Google, 143 S. Ct. 1191 (2023), Section 230 is even more valuable to these social-media platforms. These actions could reasonably be interpreted as an implied threat by the Defendants, amounting to coercion.
Cool. So, government folks, both in Congress and in the White House, should stop threatening to remove Section 230 as punishment for disagreeing with the moderation choices of private companies. That’s good and it’s nice to have that in writing, even if I’d be hard pressed to believe that most of the discussions on 230 are actual threats.
The Bad
Doughty seems incredibly willing to include perfectly reasonable conversations about how to respond to actually problematic content as “censorship” and “coercion,” despite there being little evidence of either in many cases (again, in some cases, it does appear that some folks in the administration crossed the line).
For example, it’s public information (as we’ve discussed) that various parts of the government would meet with social media not for “censorship” but to share information, such as about foreign trolls seeking to disrupt elections with false information, or about particular dangers. These meetings were not about censorship, but just making everyone aware of what was going on. But conspiracy-minded folks have turned those meetings into something they most definitely are not.
Yet Doughty assumes all these meetings are nefarious.
In doing so, Doughty often fails to distinguish perfectly reasonable speech by government actors that is not about suppressing speech, but rather debunking or countering false information — which is traditional counterspeech. Now, again, when government actors are doing it, their speech is actually less protected (Posner’s ruling in the Dart case details this point), but so long as their speech is not focused on silencing other speech, it’s perfectly reasonable. For example, the complaint detailed some efforts by social media companies to deboost the promotion of the Great Barrington Declaration. One of the points in the lawsuit was that Francis Collins had emailed Anthony Fauci about how much attention it was getting, saying “there needs to be a quick and devastating published take down of its premises.” And Fauci responded:
The same day, Dr. Fauci wrote back to Dr. Collins stating, “Francis: I am pasting in below a piece from Wired that debunks this theory. Best, Tony.”
Doughty ridiculously interprets Collins saying “there needs to be a… take down of its premises” to mean “we need to get this taken off of social media.”
However, various emails show Plaintiffs are likely to succeed on the merits through evidence that the motivation of the NIAID Defendants was a “take down” of protected free speech. Dr. Francis Collins, in an email to Dr. Fauci told Fauci there needed to be a “quick and devastating take down” of the GBD—the result was exactly that.
But that’s clearly not what Collins meant in context. By a “quick and devastating published take down” he clearly meant a response. That is: more speech, debunking the claims that Collins worried were misleading. That’s why he said a “published take down.” Note that Doughty excises “published” from his quote in order to falsely imply that Collins was telling Fauci they needed to censor information.
And then Fauci continued to talk publicly about his concerns about the GBD, not urging any kind of censorship. And Doughty repeats all of those points, and still pretends the plan was “censorship”:
Dr. Fauci and Dr. Collins followed up with a series of public media statements attacking the GBD. In a Washington Post story run on October 14, 2020, Dr. Collins described the GBD and its authors as “fringe” and “dangerous.” Dr. Fauci consulted with Dr. Collins before he talked to the Washington Post. Dr. Fauci also endorsed these comments in an email to Dr. Collins, stating “what you said was entirely correct.”
On October 15, 2020, Dr. Fauci called the GBD “nonsense” and “dangerous.” Dr. Fauci specifically stated, “Quite frankly that is nonsense, and anybody who knows anything about epidemiology will tell you that is nonsense and very dangerous.” Dr. Fauci testified “it’s possible that” he coordinated with Dr. Collins on his public statements attacking the GBD.
Social-media platforms began censoring the GBD shortly thereafter. In October 2020, Google de-boosted the search results for the GBD so that when Google users googled “Great Barrington Declaration,” they would be diverted to articles critical of the GBD, and not to the GBD itself. Reddit removed links to the GBD. YouTube updated its terms of service regarding medical “misinformation,” to prohibit content about vaccines that contradicted consensus from health authorities. Because the GBD went against a consensus from health authorities, its content was removed from YouTube. Facebook adopted the same policies on misinformation based upon public health authority recommendations. Dr. Fauci testified that he could not recall anything about his involvement in seeking to squelch the GBD
Nothing in that shows coercion. It shows Fauci expressing an opinion on the accuracy of the statements in the GBD. That social media companies later chose to remove some of those links is wholly disconnected from that.
Indeed, under this theory, if a social media company wants to get government officials in trouble, all it has to do is remove any speech that a government official tries to respond to, enabling a lawsuit to claim that it was removed because of that response. That… makes no sense at all.
I mean, the conversation about the CDC is just bizarre. Whatever you think of the CDC, the details show that social media companies chose to rely on the CDC to try to understand what was accurate and what was not regarding Covid and Covid vaccines. That’s because a ton of information was flying back and forth and lots of it was inaccurate. As social media companies were hoping for a way to understand what was legit and what was not, it’s reasonable to ask an entity like the CDC what it thought.
Much like the other Defendants, described above, the CDC Defendants became “partners” with social-media platforms, flagging and reporting statements on social media Defendants deemed false. Although the CDC Defendants did not exercise coercion to the same extent as the White House and Surgeon General Defendants, their actions still likely resulted in “significant encouragement” by the government to suppress free speech about COVID-19 vaccines and other related issues.
Various social-media platforms changed their content-moderation policies to require suppression of content that was deemed false by CDC and led to vaccine hesitancy
Yeah, the companies did this because they (correctly) figured that the CDC — whose entire role is about this very thing — is going to be better at determining what’s legit and what’s dangerous than their own content moderation team. That’s a perfectly rational decision, not “censorship”. But Doughty doesn’t care.
Similarly, regarding the Hunter Biden laptop story — which we’ve debunked multiples times here — it’s now well established that the government had no involvement in the decision by social media companies to lower the visibility of that story for a short period of time. Incredibly, Doughty argues that the real problem was that the FBI didn’t tell social media companies that their concerns were wrong. Really:
The FBI’s failure to alert social-media companies that the Hunter Biden laptop story was real, and not mere Russian disinformation, is particularly troubling. The FBI had the laptop in their possession since December 2019 and had warned social-media companies to look out for a “hack and dump” operation by the Russians prior to the 2020 election. Even after Facebook specifically asked whether the Hunter Biden laptop story was Russian disinformation, Dehmlow of the FBI refused to comment, resulting in the social-media companies’suppression of the story. As a result, millions of U.S. citizens did not hear the story prior to the November 3, 2020 election. Additionally, the FBI was included in Industry meetings and bilateral meetings, received and forwarded alleged misinformation to social-media companies, and actually mislead social-media companies in regard to the Hunter Biden laptop story. The Court finds this evidence demonstrative of significant encouragement by the FBI Defendants.
So… despite so many parts of this lawsuit complaining about the government having contacts with social media, here the court says the real problem was that the FBI should have told the companies not to moderate this particular story? So, basically “don’t communicate with social media companies, except if your communication boosts the storylines that will help Donald Trump.”
Also, the idea that what social media companies did resulted in “millions of U.S. citizens” not hearing the story prior to the election is bullshit. As we’ve covered in the past, actual analysis showed that the attempts by Facebook and Twitter to deboost that story (very briefly — only for one day in the case of Twitter) actually created a Streisand Effect that got the story more attention than it was likely to get otherwise.
Over and over again in the ruling, Doughty highlights how the social media companies often explained to White House officials that they would not remove or otherwise take action on various accounts because they did not violate policies. That is consistent with everything we’ve seen, showing that the companies did not feel coerced, and if anything, often mocked the government officials for over-reacting to things online.
Indeed, as we’ve detailed, the actual evidence shows that the companies very, very rarely did anything in response to these flags. The report from Stanford showed that they only took action on 35% of flagged content, and those numbers were skewed by TikTok being much more aggressive. So Twitter/Facebook/YouTube took action on way less than 35%. And, by “take action,” they mostly just added more context (i.e., more speech, not suppression). The only things that were removed were obviously problematic content like phishing and impersonation.
But Doughty basically ignores all that and insists there’s evidence of coercion, because some companies took action. And now he’s saying that the government basically can’t flag any of this info.
This also means that in situations where useful information sharing to prevent real harm could occur, this preliminary injunction now blocks it. And we’re already seeing some of that with the State Department canceling meetings with Facebook in response to this ruling (I’ve heard that other meetings between the government and companies have also been canceled, including ones that are deliberately focused on harm reduction, not on “censorship.”)
Again, so much of this seems to be based on a very, very broad misunderstanding of the nature of investigating the flow of mis- and disinformation online, and the role of government in dealing with that. As we’ve discussed repeatedly, much of the information sharing that was set up around these issues involved things where government involvement made total sense: helping to determine attempts to undermine elections through misinformation regarding the time and place of polling stations, phishing attempts, and other such nonsense.
But, this ruling seems to treat that kind of useful information sharing as a nefarious plan to “censor conservatives.”
The Ugly
Judge Doughty seems to believe every nonsense conspiracy around regarding the culture war and false claims of social media deliberately stifling “conservatives.” This is despite multiple studies showing that they actually bent over backwards to allow conservatives to regularly break the rules to avoid claims of bias. I mean, this is just nonsense:
What is really telling is that virtually all of the free speech suppressed was “conservative” free speech. Using the 2016 election and the COVID-19 pandemic, the Government apparently engaged in a massive effort to suppress disfavored conservative speech. The targeting of conservative speech indicates that Defendants may have engaged in “viewpoint discrimination,” to which strict scrutiny applies
First of all, this isn’t true. The court is only aware of such speech being moderated because that’s all the plaintiffs in this case highlighted (often through exaggeration). Second, many of the contested actions happened under the Trump administration, and it would make no sense that a Republican administration would be seeking to suppress “conservative” speech. Third, the whole issue is that the companies were choosing to hold back dangerous false information that they feared would lead to real world harms. If it was true that such speech came more frequently from so-called “conservatives,” that’s on them. Not the government.
And that results in the details of the injunction, which are just ridiculously broad and go way beyond reasonable limits on attempts by the government to impact social media content moderation efforts.
Again, here, Doughty twists reality by viewing it through a distorted, conspiracy-laden prism. Take, for example, the following:
According to DiResta, the EIP was designed to “get around unclear legal authorities, including very real First Amendment questions” that would arise if CISA or other government agencies were to monitor and flag information for censorship on social media.
So, this part is really problematic. DiResta DID NOT SAY that EIP was an attempt to “get around” unclear legal authorities. Her full quote does not say that at all:
So, as with pretending that Collins told Fauci they had to “take down” content, when he meant provide more info that responds to it, here Doughty has put words in DiResta’s mouth. Where she’s explaining the reasons why the government can’t be in the business of flagging content, as there are “very real First Amendment questions,” Doughty, falsely, claims she said this was an attempt to “get around” those questions. But it’s not.
This is actually showing that those involved were being careful not to violate the 1st Amendment and to be cognizant of the limits the Constitution placed on government actors. Given the “very real First Amendment questions” that would be raised by having government officials highlighting misinformation to social media companies, groups like Stanford IO could make their analysis and pass it off to social media companies without the natural concerns of that information coming from government actors. In other words, Stanford’s involvement was not as a “government proxy,” but rather to provide useful information to the companies without the problematic context of government (and, again, Stanford’s eventual report on this stuff showed that the companies took action on only a tiny percentage of flagged content, and most of those were things like phishing attempts and impersonation — not anything to do with political speech).
It’s not “getting around” anything. It’s recognizing what the government is forbidden from doing.
If you look at the full context of DiResta’s quote, she’s actually making it clear that the reason Stanford decided to set up the EIP project was because the government shouldn’t be in that business, and that it made more sense for an academic institution to be tracking and highlighting disinformation for the sake of responding to it (i.e., not suppress it, but respond to it).
Yet, Doughty goes off on some nonsense tangent, winding himself up about how this is just the tip of the iceberg of some giant censorship regime, which is just laughable:
Plaintiffs have put forth ample evidence regarding extensive federal censorship that restricts the free flow of information on social-media platforms used by millions of Missourians and Louisianians, and very substantial segments of the populations of Missouri, Louisiana, and every other State. The Complaint provides detailed accounts of how this alleged censorship harms “enormous segments of [the States’] populations.” Additionally, the fact that such extensive examples of suppression have been uncovered through limited discovery suggests that the censorship explained above could merely be a representative sample of more extensive suppressions inflicted by Defendants on countless similarly situated speakers and audiences, including audiences in Missouri and Louisiana. The examples of censorship produced thus far cut against Defendants’ characterization of Plaintiffs’ fear of imminent future harm as “entirely speculative” and their description of the Plaintiff States’ injuries as “overly broad and generalized grievance[s].” The Plaintiffs have outlined a federal regime of mass censorship, presented specific examples of how such censorship has harmed the States’ quasi-sovereign interests in protecting their residents’ freedom of expression, and demonstrated numerous injuries to significant segments of the Plaintiff States’ populations.
Basically everything in that paragraph is bullshit.
Anyway, all that brings us to the nature of the actual injunction. And… it’s crazy. It basically prevents much of the US government from talking to any social media company or to various academics and researchers studying how information flows or how foreign election interference works. Which is quite a massive restriction.
But, really, the most incredible part is that the injunction pretends that it can distinguish the kinds of information the government can share with social media companies from the kinds it can’t. So, for example, the following is prohibited:
specifically flagging content or posts on social-media platforms and/or forwarding such to social-media companies urging, encouraging, pressuring, or inducing in any manner for removal, deletion, suppression, or reduction of content containing protected free speech;
urging, encouraging, pressuring, or inducing in any manner social-media companies to change their guidelines for removing, deleting, suppressing, or reducing content containing protected free speech;
emailing, calling, sending letters, texting, or engaging in any communication of any kind with social-media companies urging, encouraging, pressuring, or inducing in any manner for removal, deletion, suppression, or reduction of content containing protected free speech;
But then, it says the government can communicate with social media companies over the following:
informing social-media companies of postings involving criminal activity or criminal conspiracies;
contacting and/or notifying social-media companies of national security threats, extortion, or other threats posted on its platform;
contacting and/or notifying social-media companies about criminal efforts to suppress voting, to provide illegal campaign contributions, of cyber-attacks against election infrastructure, or foreign attempts to influence elections;
informing social-media companies of threats that threaten the public safety or security of the United States;
exercising permissible public government speech promoting government policies or views on matters of public concern;
informing social-media companies of postings intending to mislead voters about voting requirements and procedures;
informing or communicating with social-media companies in an effort to detect, prevent, or mitigate malicious cyber activity;
But here’s the thing: nearly all of the examples actually discussed fall into this exact bucket, but the plaintiffs (AND JUDGE DOUGHTY) pretend they fall into the first bucket (which is now prohibited). So, is sharing details of some jackass posting fake ways to vote “informing social media companies of posting intended to mislead voters about voting requirements” or is it “specifically flagging content or posts on social-media platforms and/or forwarding such to social-media companies urging, encouraging, pressuring, or inducing in any manner for removal, deletion, suppression, or reduction of content containing protected free speech“?
It seems abundantly clear that nearly all of the conversations were about legitimate information sharing, but nearly all of it is interpreted by the plaintiffs and the judge to be nefarious censorship. As such, the risk for anyone engaged in activities on the “not prohibited” list is that this judge will interpret them to be on the prohibited list.
And that’s why government officials are now calling off important meetings with these companies where they were sharing actual useful information that they can no longer share. I’ve even heard some government officials say they’re even afraid to post to social media out of a fear that that would violate this injunction.
Also, this is completely fucked up. Among the prohibited activities is having people in the government talk to a wide variety of researchers who aren’t even parties to this lawsuit.
collaborating, coordinating, partnering, switchboarding, and/or jointly working with the Election Integrity Partnership, the Virality Project, the Stanford Internet Observatory, or any like project or group for the purpose of urging, encouraging, pressuring, or inducing in any manner removal, deletion, suppression, or reduction of content posted with social-media companies containing protected free speech
That should be a real concern, as (again) a key thing that the EIP did was connect with election officials who were facing bogus election claims, giving them the ability to share that info and move to debunk false information and provide more accurate information. But, under this ruling, that can’t happen.
If you wanted to set up a system that is primed to enable foreign interference in elections, you couldn’t have picked a better setup. Nice work, everyone.
Anyway, it’s no surprise that the US government has already moved to appeal this ruling. But, if you think the appeals court is going to save things, remember that Louisiana federal rulings go up to the 5th Circuit, which is the court that decided that Texas’s compelled speech law was just dandy.
Of course, in many ways, this ruling conflicts with that one, in that Texas’s social media law is actually a much more active attempt by government to force social media companies to moderate in the manner it wants. But the one way they are consistent is that both rulings support Trumpist delusions, meaning there’s a decent chance the 5th Circuit blesses the nonsense parts of this one.
Again, the good parts of the ruling shouldn’t be ignored. And many government officials do need a clear reminder of the boundaries between coercion and persuasion. But, all in all, this ruling goes way too far, interprets things in a nonsense manner, and creates an impossible-to-comply-with injunction that causes real harm not just for the users of social media, but actual 1st Amendment interests as well.
It is amazing the degree to which some people will engage in confirmation bias and believe absolute nonsense, even as the facts show the opposite is true. Over the past few months, we’ve gone through the various “Twitter Files” releases, and pointed out over and over again how the explanations people gave for them simply don’t match up with the underlying documents.
To date, not a single document revealed has shown what people now falsely believe: that the US government and Twitter were working together to “censor” people based on their political viewpoints. Literally none of that has been shown at all. Instead, what’s been shown is that Twitter had a competent trust & safety team that debated tough questions around how to apply policies for users on their platform and did not seem at all politically motivated in their decisions. Furthermore, while various government entities sometimes did communicate with the company, there’s little evidence of any attempt by government officials to compel Twitter to moderate in any particular way, and Twitter staff regularly and repeatedly rebuffed any attempt by government officials to go after certain users or content.
Now, as you may recall, two years ago, a few months after Donald Trump was banned from Twitter, Facebook, and YouTube, he sued the companies, claiming that the banning violated the 1st Amendment. This was hilariously stupid for many reasons, not the least of which is because at the time of the banning Donald Trump was the President of the United States, and these companies were very much private entities. The 1st Amendment restricts the government, not private entities, and it absolutely does not restrict private companies from banning the President of the United States should the President violate a site’s rules.
As expected, the case went poorly for Trump, leading to it being dismissed. It is currently on appeal. However, in early May, Trump’s lawyers filed a motion to effectively try to reopen the case at the district court, arguing that the Twitter Files changed everything, and that now there was proof that Trump’s 1st Amendment rights were violated.
In October of 2022, after the entry of this Court’s Judgment, Twitter was acquired by Elon Musk. Shortly thereafter, Mr. Musk invited several journalists to review Twitter’s internal records. Allowing these journalists to search for evidence that Twitter censored content that was otherwise compliant with Twitter’s “TOS”, the journalists disclosed their findings in a series of posts on Twitter collectively known as the Twitter Files. As set out in the attached Rule 60 motion, the Twitter Files confirm Plaintiffs’ allegations that Twitter engaged in a widespread censorship campaign that not only violated the TOS but, as much of the censorship was the result of unlawful government influence, violated the First Amendment.
I had been thinking about writing this up as a story, but things got busy, and last week Twitter (which, again, is now owned by Elon Musk who has repeatedly made ridiculously misleading statements about what the Twitter Files showed) filed its response, where they say (with risk of sanctions on the line) that this is all bullshit and nothing in the Twitter Files says what Trump (and Elon, and a bunch of his fans) claim it says. This is pretty fucking damning to anyone who believed the nonsense Twitter Files narrative.
The new materials do not plausibly suggest that Twitter suspended any of Plaintiffs’ accounts pursuant to any state-created right or rule of conduct. As this Court held, Lugar’s first prong requires a “clear,” government-imposed rule. Dkt. 165 at 6. But, as with Plaintiffs’ Amended Complaint, the new materials contain only a “grab-bag” of communications about varied topics, none establishing a state-imposed rule responsible for Plaintiffs’ challenged content-moderation decisions. The new materials cover topics ranging, for example, from Hunter Biden’s laptop, Pls.’ Exs. A.14 & A.27-A.28, to foreign interference in the 2020 election, Pls.’ Exs. A.13 at, e.g., 35:15-41:4, A.22, A.37, A.38, to techniques used in malware and ransomware attacks, Pls.’ Ex. A.38. As with the allegations in the Amended Complaint, “[i]t is … not plausible to conclude that Twitter or any other listener could discern a clear state rule” from such varied communications. Dkt. 165 at 6. The new materials would not change this Court’s dismissal of Plaintiffs’ First Amendment claims for this reason alone.
Moreover, a rule of conduct is imposed by the state only if backed by the force of law, as with a statute or regulation. See Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999) (regulatory requirements can satisfy Lugar’s first prong). Here, nothing in the new materials suggests any statute or regulation dictating or authorizing Twitter’s content-moderation decisions with respect to Plaintiffs’ accounts. To the contrary, the new materials show that Twitter takes content-moderation actions pursuant to its own rules and policies. As attested to by FBI Agent Elvis Chan, when the FBI reported content to social media companies, they would “alert the social media companies to see if [the content] violated their terms of service,” and the social media companies would then “follow their own policies” regarding what actions to take, if any. Pls.’ Ex. A.13 at 165:9-22 (emphases added); accord id. at 267:19-23, 295:24-296:4. And general calls from the Biden administration for Twitter and other social media companies to “do more” to address alleged misinformation, see Pls.’ Ex. A.47, fail to suggest a state-imposed rule of conduct for the same reasons this Court already held the Amended Complaint’s allegations insufficient: “[T]he comments of a handful of elected officials are a far cry from a ‘rule of decision for which the State is responsible’” and do not impose any “clear rule,” let alone one with the force of law. Dkt. 165 at 6. The new materials thus would not change this Court’s determination that Plaintiffs have not alleged any deprivation caused by a rule of conduct imposed by the State.
Later on it goes further:
Plaintiffs appear to contend (Pls.’ Ex. 1 at 16-17) that the new materials support an inference of state action in Twitter’s suspension of Trump’s account because they show that certain Twitter employees initially determined that Trump’s January 2021 Tweets (for which his account was ultimately suspended) did not violate Twitter’s policy against inciting violence. But these materials regarding Twitter’s internal deliberations and disagreements show no governmental participation with respect to Plaintiffs’ accounts. See Pls.’ Exs. A.5.5, A-49-53.5
Plaintiffs are also wrong (Ex. 1 at 15-16) that general calls from the Biden administration to address alleged COVID-19 misinformation support a plausible inference of state action in Twitter’s suspensions of Cuadros’s and Root’s accounts simply because they “had their Twitter accounts suspended or revoked due to Covid-19 content.” For one thing, most of the relevant communications date from Spring 2021 or later, after Cuadros and Roots’ suspensions in 2020 and early 2021, respectively, see Pls.’ Ex. A.46-A.47; Am. Compl. ¶¶124, 150. Such communications that “post-date the relevant conduct that allegedly injured Plaintiffs … do not establish [state] action.” Federal Agency of News LLC v. Facebook, Inc., 432 F. Supp. 3d 1107, 1125-26 (N.D. Cal. 2020). Additionally, the new materials contain only general calls on Twitter to “do more” to address COVID-19 misinformation and questions regarding why Twitter had not taken action against certain other accounts (not Plaintiffs’). Pls.’ Exs. A.43-A.48. Such requests to “do more to stop the spread of false or misleading COVID-19 information,” untethered to any specific threat or requirement to take any specific action against Plaintiffs, is “permissible persuasion” and not state action. Kennedy v. Warren, 66 F.4th 1199, 1205, 1207-12 (9th Cir. 2023). As this Court previously held, government actors are free to “urg[e]” private parties to take certain actions or “criticize” others without giving rise to state action. Dkt. 165 at 12-13. Because that is the most that the new materials suggest with respect to Cuadros and Root, the new materials would not change this Court’s dismissal of their claims.
Twitter’s filing is like a beat-by-beat debunking of the conspiracy theories pushed by the dude who owns Twitter. It’s really quite incredible.
First, the simple act of receiving information from the government, or of deciding to act upon that information, does not transform a private actor into a state actor. See O’Handley, 62 F.4th at 1160 (reports from government actors “flagg[ing] for Twitter’s review posts that potentially violated the company’s content-moderation policy” were not state action). While Plaintiffs have attempted to distinguish O’Handley on the basis of the repeated communications reflected in the new materials, (Ex. 1 at 13), O’Handley held that such “flag[s]” do not suggest state action even where done “on a repeated basis” through a dedicated, “priority” portal. Id. The very documents on which Plaintiffs rely establish that when governmental actors reported to social media companies content that potentially violated their terms of service, the companies, including Twitter, would “see if [the content] violated their terms of service,” and, “[i]f [it] did, they would follow their own policies” regarding what content-moderation action was appropriate. Pls.’ Ex. A.13 at 165:3-17; accord id. at 296:1-4 (“[W]e [the FBI] would send information about malign foreign influence to specific companies as we became aware of it, and then they would review it and determine if they needed to take action.”). In other words, Twitter made an independent assessment and acted accordingly.
Moreover, the “frequen[t] [] meetings” on which Plaintiffs rely heavily in attempting to show joint action fall even farther short of what was alleged in O’Handley because, as discussed supra at 7, they were wholly unrelated to the kinds of content-moderation decisions at issue here.
Second, contrary to Plaintiffs’ contention (Ex. 1 at 11-12), the fact that the government gave certain Twitter employees security clearance does not transform information sharing into state action. The necessity for security clearance reflects only the sensitive nature of the information being shared— i.e., efforts by “[f]oreign adversaries” to “undermine the legitimacy of the [2020] election,” Pls.’ Ex. A.22. It says nothing about whether Twitter would work hand-in-hand with the federal government. Again, when the FBI shared sensitive information regarding possible election interference, Twitter determined whether and how to respond. Pls.’ Ex. A.13 at 165:3-17, 296:1-4.
Third, Plaintiffs are also wrong (Ex. 1 at 12-13) that Twitter became a state actor because the FBI “pay[ed] Twitter millions of dollars for the staff [t]ime Twitter expended in handling the government’s censorship requests.” For one thing, the communication on which Plaintiffs rely in fact explains that Twitter was reimbursed $3 million pursuant to a “statutory right of reimbursement for time spent processing” “legal process” requests. Pls.’ Ex. A.34 (emphasis added). The “statutory right” at issue is that created under the Stored Communications Act for costs “incurred in searching for, assembling, reproducing, or otherwise providing” electronic communications requested by the government pursuant to a warrant. 18 U.S.C. § 2706(a), see also id. § 2703(a). The reimbursements were not for responding to requests to remove any accounts or content and thus are wholly irrelevant to Plaintiffs’ joint-action theory
And, in any event, a financial relationship supports joint action only where there is complete “financial integration” and “indispensability.” Vincent v. Trend W. Tech. Corp., 828 F.2d 563, 569 (9th Cir. 1987) (quotation marks omitted). During the period in which Twitter recovered $3 million (late 2019 through early 2021), the company was valued at approximately $30 billion. Even Plaintiffs do not argue that a $3 million payment would be indispensable to Twitter.
I mean, if you read Techdirt, you already knew about all this, because we debunked the nonsense “government paid Twitter to censor” story months ago, even as Elon Musk was falsely tweeting exactly that. And now, Elon’s own lawyers are admitting that the company’s owner is completely full of shit or too stupid to actually read any of the details in the Twitter files. It’s incredible.
It goes on. Remember how Elon keeps insisting that the government coerced Twitter to make content moderation decisions? Well, Twitter’s own lawyers say that’s absolute horseshit. I mean, much of the following basically is what my Techdirt posts have explained:
The new materials do not evince coercion because they contain no threat of government sanction premised on Twitter’s failure to suspend Plaintiffs’ accounts. As this Court already held, coercion requires “a concrete and specific government action, or threatened action” for failure to comply with a governmental dictate. Dkt. 165 at 11. Even calls from legislators to “do something” about Plaintiffs’ Tweets (specifically, Mr. Trump’s) do not suggest coercion absent “any threatening remark directed to Twitter.” Id. at 7. The Ninth Circuit has since affirmed the same basic conclusion, holding in O’Handley that “government officials do not violate the First Amendment when they request that a private intermediary not carry a third party’s speech so long as the officials do not threaten adverse consequences if the intermediary refuses to comply.” 62 F.4th at 1158. Like the Amended Complaint, the new materials show, at most, attempts by the government to persuade and not any threat of punitive action, and thus would not alter the Court’s dismissal of Plaintiffs’ First Amendment claims.
FBI Officials. None of the FBI’s communications with Twitter cited by Plaintiffs evince coercion because they do not contain a specific government demand to remove content—let alone one backed by the threat of government sanction. Instead, the new materials show that the agency issued general updates about their efforts to combat foreign interference in the 2020 election. For example, one FBI email notified Twitter that the agency issued a “joint advisory” on recent ransomware tactics, and another explained that the Treasury department seized domains used by foreign actors to orchestrate a “disinformation campaign.” Pls.’ Ex. A.38. These informational updates cannot be coercive because they merely convey information; there is no specific government demand to do anything—let alone one backed by government sanction.
So too with respect to the cited FBI emails flagging specific Tweets. The emails were phrased in advisory terms, flagging accounts they believed may violate Twitter’s policies—and Twitter employees received them as such, independently reviewing the flagged Tweets. See, e.g., Pls.’ Exs. A.30 (“The FBI San Francisco Emergency Operations Center sent us the attached report of 207 Tweets they believe may be in violation of our policies.”), A.31, A.40. None even requested—let alone commanded—Twitter to take down any content. And none threatened retaliatory action if Twitter did not remove the flagged Tweets. As in O’Handley, therefore, the FBI’s “flags” cannot amount to coercion because there was “no intimation that Twitter would suffer adverse consequences if it refused.” 62 F.4th at 1158. What is more, unlike O’Handley, not one of the cited communications contains a request to take any action whatsoever with respect to any of Plaintiffs’ accounts.6
Plaintiffs’ claim (Ex. 1 at 14) that the FBI’s “compensation of Twitter for responding to its requests” had coercive force is meritless. As a threshold matter, as discussed supra at 10, the new materials demonstrate only that Twitter exercised its statutory right—provided to all private actors—to seek reimbursement for time it spent processing a government official’s legal requests for information under the Stored Communications Act, 18 U.S.C. § 2706; see also id. § 2703. The payments therefore do not concern content moderation at all—let alone specific requests to take down content. And in any event, the Ninth Circuit has made clear that, under a coercion theory, “receipt of government funds is insufficient to convert a private [actor] into a state actor, even where virtually all of the [the party’s] income [i]s derived from government funding.” Heineke, 965 F.3d at 1013 (quotation marks omitted) (third alteration in original). Therefore, Plaintiffs’ reliance on those payments does not evince coercion.
What about the pressure from Congress? That too is garbage, admits Twitter:
Congress. The new materials do not contain any actionable threat by Congress tied to Twitter’s suspension of Plaintiffs’ accounts. First, Plaintiffs place much stock (Ex. 1 at 14-15) in a single FBI agent’s opinion that Twitter employees may have felt “pressure” by Members of Congress to adopt a more proactive approach to content moderation, Pls.’ Ex. A13 at 117:15-118:6. But a third-party’s opinion as to what Twitter’s employees might have felt is hardly dispositive. And in any event, “[g]enerating public pressure to motivate others to change their behavior is a core part of public discourse,” and is not coercion absent a specific threatened sanction for failure to comply….
White House Officials. The new materials do not evince any actionable threat by White House officials either. Plaintiffs rely (Ex. 1 at 16) on a single statement by a Twitter employee that “[t]he Biden team was not satisfied with Twitter’s enforcement approach as they wanted Twitter to do more and to deplatform several accounts,” Pls.’ Ex. A.47. But those exchanges took place in December 2022, id.— well after Plaintiffs’ suspensions, and so could not have compelled Twitter to suspend their accounts. Furthermore, the new materials fail to identify any threat of government sanction arising from the officials’ “dissatisfaction”; indeed, Twitter was only asked to join “other calls” to continue the dialogue
Basically, Twitter’s own lawyers are admitting in a court filing that the guy who owns their company is spewing utter nonsense about what the Twitter Files revealed. I don’t think I’ve ever seen anything quite like this.
Guy takes over company because he’s positive that there are awful things happening behind the scenes. Gives “full access” to a bunch of very ignorant journalists who are confused about what they find. Guy who now owns the company falsely insists that they proved what he believed all along, leading to the revival of a preternaturally stupid lawsuit… only to have the company’s lawyers basically tell the judge “ignore our stupid fucking owner, he can’t read or understand any of this.”
