I know it’s no surprise that the modern MAGA world is incredibly hypocritical. They speak of free speech while making every effort to suppress speech they dislike. But the latest example of this hypocrisy is glaring. Those who screamed to high heaven about debunked claims of the Biden admin “censoring” social media are noticeably silent about incoming FCC chair Brendan Carr’s recent statements, including direct threats of retaliation against Disney.
For much of the past four years, a narrative has been pushed by a crew of MAGA folks (but also those who haven’t paid close attention) that the White House colluded with social media to censor certain voices. The glaring problem with this narrative is that it was never actually true. Even the very MAGA-friendly Supreme Court called this out last year in its Murthy ruling, noting that the plaintiffs certainly made a bunch of wild claims about censorship efforts by the administration, but couldn’t actually show any proof to back them up.
At best, the Supreme Court noted, the plaintiffs could only rely on a “speculative chain of possibilities” that didn’t seem to have much connection to reality. The content moderation decisions made by social media companies appeared to be wholly independent of any communications from the government. This is unsurprising as there was no evidence of any coercive behavior by the government. There were no threats of action if the government was unhappy.
And yet, we still hear self-proclaimed free speech warriors like Matt Taibbi and Michael Shellenberger insisting that this was a giant scandal. A group of the “Twitter Files” journalists filed an amicus brief with the Supreme Court claiming that the government’s efforts were “an existential threat to free speech.”
Except, it wasn’t. For a legitimate free speech threat, there must be evidence of coercive government action. The standard, as first established in the Bantam Books case in the 1960s, is that the government has to be using some sort of threats or coercive power in response to speech. The Supreme Court did not find that with the Biden administration, and it knows the standard deeply. In fact, the same day it heard the case about the Biden administration, it heard a different case about a NY official threatening insurance companies if they worked with the NRA. And in that case, the same Supreme Court that found nothing unconstitutional in Murthy, said that Vullo’s actions violated the First Amendment.
Given all that, it strikes me as notable that we’ve heard nary a peep from the famed free speech warriors concerning the letter incoming FCC chair Brendan Carr sent to Disney boss Robert Iger, pretty clearly stating he would take action against the company if ABC didn’t cut favorable deals with local TV stations (such as those run by Sinclair) and avoid content that “contributed to the erosion in public trust.”
Carr’s letter contains several concerning elements that suggest government overreach and coercion. First, he cites ABC’s settlement of a defamation lawsuit with Trump as evidence they have “contributed to the erosion in public trust.” This implies government disapproval of ABC’s editorial choices. Second, he notes the FCC’s “interest in and authority” to ensure local stations maintain “economic and operational independence,” and warns the FCC will be “compelled to act” if ABC jeopardizes those objectives in affiliate agreement negotiations. The message is clear — make deals favorable to local stations like Sinclair or face regulatory consequences.
Compare this to the Murthy case, where the Supreme Court found no evidence of government threats or coercion influencing social media content moderation policies. Carr, on the other hand, is pretty clearly using threats of regulatory action to influence a media company’s business dealings and editorial stance.
Unlike the more general claims of legislation that were brought up in the Murthy case, but where there was no clear through line between the communication and the supposed threat, here it’s all together in a single letter.
Yet somehow, those who insisted that the Murthy case represented an “existential threat to free speech” haven’t seemed to have had any issue at all with Carr issuing what seem like much more direct threats.
Many of those same Twitter Files free speech warriors are fans of incoming Federal Communications Commission CommissionerBrendan Carr, whom President-elect Donald Trump himself has called a “warrior for free speech.” Carr has issued a number of letters recently that could reasonably be described as jawboning. First, he addressed the CEOs of Alphabet, Meta, Apple and Microsoft, accusing their companies of participating in a “censorship cartel.” (And, yes, Carr cited the Twitter Files as evidence.)
More recently, Carr sent a letter to Disney CEO Robert Iger citing the fact that Americans have low levels of trust in today’s mass media, while noting that “Americans largely hold positive views of their local media outlets.” He highlights Disney’s controversial recent decision to settle a defamation lawsuit brought by Trump as evidence that ABC has “contributed to this erosion in public trust.” He further writes that since ABC is “renegotiating the terms of many of its affiliate agreements” and those agreements include broadcasting ABC’s national programs, he is watching closely to see how ABC conducts itself. He adds that the “approach ABC is apparently taking in these negotiations concerns me.”
More importantly, though, is that unlike literally anything that came out in the Murthy case or the Twitter Files, here Carr threatens direct action from an agency over which he will soon have control:
Furthermore, as he notes, “the FCC clearly has an interest in and the authority … to ensure that local broadcast TV stations retain the economic and operational independence necessary to meet their public interest obligations.” And he warns that if something is “jeopardizing … those objectives, then the FCC will be compelled to act.”
In November,Carr posted: “Broadcast licenses are not sacred cows. These media companies are required by law to operate in the public interest. If they don’t, they are going to be held accountable, as the Communications Act requires.”
Put all that together and it seems like a way more direct threat and an attempt at coercing speech than anything that came out in the Twitter Files.
And yet… silence from the free speech crew.
The hypocrisy is glaring. Those who cried foul over speculative “jawboning” by the Biden administration are silent as Carr issues warnings about how he will use FCC power to influence media company dealings and content. It exposes their selective and politically-motivated outrage.
For better or worse, jawboning has been a hot topic recently, and it’s unlikely that interest will fade any time soon. Jawboning, in broad strokes, is when the government pressures a third party to make that third party chill the speech of another instead of going after the speech directly. Because the First Amendment says that the government cannot go after speech directly, this approach can at first seem to be the “one easy trick” for the government to try to affect the speech it wants to affect so that it could get away with it constitutionally. But as the Supreme Court reminded earlier this year in NRA v. Vullo, it’s not actually constitutional to try this sort of end-run around the First Amendment. Pressuring an intermediary to have it punish someone else’s speech is no better than trying to punish it directly.
True, not every accusation of “jawboning!” has been legitimate; Internet intermediaries are entitled to make their own decisions about what user expression to facilitate or remove. But when user expression gets removed, and it has not been the result of the volitional choice of the platform, then there are reasons to be concerned about the constitutionality of whatever legal pressure on the intermediary that caused the removal.
Which is why there should be concern about Section 512 of the Digital Millennium Copyright Act and how it operates to force intermediaries to act against users and their speech, whether they would want to or not, and whether the targeted speech is wrongful or not. Because when resisting a takedown notice can cost them their safe harbor protection and potentially expose them to crippling liability, then the choice to acquiesce to the takedown demand is really no choice at all. Instead it’s jawboning: using law to force the third party to act against speech in order to avoid the constitutional protections the speech should have enjoyed.
This dynamic is what this white paper I’ve written with the support of the R Street Institute explores: how the DMCA, as currently written and interpreted, creates a jawboning problem for online speech. It looks at the 512(a) and (c) safe harbors in particular, and the role that takedown notices have in forcing the elimination of user expression and, in an increasing number of cases, users too, all without due process. It notes how the DMCA as currently drafted and interpreted allows and even encourages using the DMCA’s takedown notice system as a tool to censor, such as through the toothlessness way Section 512(f) has been construed and the expansive way the termination provision of 512(i) has been.
Importantly, the paper does not suggest just trashing the DMCA, because statutory protection of Internet intermediaries is critically important. But it suggests that this protection should be more durable and reliable and not come at the expense of the very user speech statutory protection is necessary to foster. And it points out that the true culprit here may be copyright law itself and the extremely expansive doctrines of secondary liability that courts have taken upon themselves to write into the copyright statute. Because the problem with jawboning is that there is legal pressure on an intermediary, and this is undo legal pressure on them that makes intermediaries vulnerable to being coopted to work against the speech they exist, and we all need them to exist, to facilitate.
Of course, the question could fairly be asked, “Why now?” After all, the DMCA has been working its unconstitutional way for a quarter of a century, and we’ve been tolerating it. But tolerating the intolerable does not make it tolerable. Even though the DMCA has been doing its jawboning business all this time does not mean there is no exigent Constitutional problem demanding attention. It just means it’s time to take notice and finally do something about it, especially while there is such attention being given to other ways the government is tempted to affect online speech with similar intermediary pressure.
Furthermore, the DMCA’s jawboning problem has gotten worse over time: while as originally written the law has issues, court cases that have followed, particularly with regard to 512(f) and (i), as well as secondary liability, have exacerbated the statute’s inherent flaws. Meanwhile, the Supreme Court’s decisions in Vullo, Moody, and Murthy have helped provide a contemporary framework for recognizing and responding jawboning, and those decisions only came out this year. This paper now applies them to a problem that has long been brewing.
And, in any case, better late than never, especially as long as First Amendment rights remain threatened.
Well, that was quite the end to last night’s Vice Presidential debate. While the overall debate was pretty boring (though hilarious when JD Vance flipped out and whined that the moderators had promised not to fact check him), towards the very end they had what might be the dumbest possible exchange regarding free speech.
It began with a discussion on Donald Trump’s ongoing refusal to admit that he actually lost the 2020 election. Walz noted (correctly) that this would appear to be a threat to the basic tenets of democracy. Vance tried to spin this around by claiming (falsely) that Kamala Harris “censored Americans on Facebook.”
Vance followed this up by misrepresenting some of Walz’s comments on free speech, and then Walz shot back with the (oh no) “fire in a crowded theater” line.
Both of them are wrong. And it’s important to understand why. But here’s the clip if you want to see it:
If you’d prefer to read it, here’s a transcript as well. This discussion followed a discussion regarding the January 6th attack on the Capitol. Vance was asked to respond and tried to spin the attempt to overturn the election as the same as others complaining about the loss in 2016 (which, I will note, involved no storming of any Capitol, nor any Capitol police getting beaten, nor a noose, nor chants to hang the VP).
When pushed on the denial of the results of the 2020 election, Vance tried to take a page from RFK Jr. and spin it to claim that Harris (?) is trying to censor people on Facebook:
JD Vance: Yeah, well, look, Tim, first of all, it’s really rich for Democratic leaders to say that Donald Trump is a unique threat to democracy when he peacefully gave over power on January the 20th, as we have done for 250 years in this country. We are going to shake hands after this debate and after this election. And of course, I hope that we win, and I think we’re going to win. But if Tim Walz is the next vice president, he’ll have my prayers, he’ll have my best wishes, and he’ll have my help whenever he wants it. But we have to remember that for years in this country, Democrats protested the results of elections. Hillary Clinton in 2016 said that Donald Trump had the election stolen by Vladimir Putin because the Russians bought, like, $500,000 worth of Facebook ads. This has been going on for a long time. And if we want to say that we need to respect the results of the election, I’m on board. But if we want to say, as Tim Walz is saying, that this is just a problem that Republicans have had. I don’t buy that.
Norah O’Donnell: Governor.
Tim Walz: January 6th was not Facebook ads. And I think a revisionist history on this. Look, I don’t understand how we got to this point, but the issue was that happened. Donald Trump can even do it. And all of us say there’s no place for this. It has massive repercussions. This idea that there’s censorship to stop people from doing, threatening to kill someone, threatening to do something, that’s not censorship. Censorship is book banning. We’ve seen that. We’ve seen that brought up. I just think for everyone tonight, and I’m going to thank Senator Vance. I think this is the conversation they want to hear, and I think there’s a lot of agreement. But this is one that we are miles apart on. This was a threat to our democracy in a way that we had not seen. And it manifested itself because of Donald Trump’s inability to say, he is still saying he didn’t lose the election. I would just ask that. Did he lose the 2020 election?
JDV: Tim, I’m focused on the future. Did Kamala Harris censor Americans from speaking their mind in the wake of the 2020 COVID situation?
TW: That is a damning. That is a damning non answer.
JDV: It’s a damning non answer for you to not talk about censorship. Obviously, Donald Trump and I think that there were problems in 2020. We’ve talked about it. I’m happy to talk about it further. But you guys attack us for not believing in democracy. The most sacred right under the United States democracy is the First Amendment. You yourself have said there’s no First Amendment right to misinformation. Kamala Harris wants to use the power of government and big tech to silence people from speaking their minds. That is a threat to democracy that will long outlive this present political moment. I would like Democrats and Republicans to both reject censorship. Let’s persuade one another. Let’s argue about ideas, and then let’s come together afterwards.
TW: You can’t yell fire in a crowded theater. That’s the test. That’s the Supreme court test.
JDV: Tim. Fire in a crowded theater. You guys wanted to kick people off of Facebook for saying that toddlers should not wear masks.
NO: Senator, the governor does have the floor.
TW: Sorry.
JDV: That’s not fire in a crowded theater. That is criticizing the policies of the government, which is the right of every American.
So, yeah. Both of them are wrong here. The answer to Vance’s question of “did Kamala Harris censor Americans from speaking their mind” is emphatically “no, she did not.” In his follow-up, Vance changes the formulation slightly to claim that Harris “wants to… silence people from speaking their minds.”
Now, it is true that some Democrats have proposed bills of this nature. Those bills are obviously unconstitutional and went nowhere. The Senators who backed that bill (Amy Klobuchar and Ben Ray Lujan) should be ashamed of themselves for offering it up. But I’ve seen no evidence that Harris backs such a ridiculous bill.
Of course, Vance is most likely talking about the false claims in the MAGA world that the Biden administration was in cahoots with Facebook to silence vaccine denialists. Except, that’s nonsense. Even the Trump-supporting Supreme Court said there was no evidence of that:
The primary weakness in the record of past restrictions is the lack of specific causation findings with respect to any discrete instance of content moderation. The District Court made none. Nor did the Fifth Circuit, which approached standing at a high level of generality. The platforms, it reasoned, “have engaged in censorship of certain viewpoints on key issues,” while “the government has engaged in a yearslong pressure campaign” to ensure that the platforms suppress those viewpoints. 83 F. 4th, at 370. The platforms’ “censorship decisions”—including those affecting the plaintiffs—were thus “likely attributable at least in part to the platforms’ reluctance to risk” the consequences of refusing to “adhere to the government’s directives.” Ibid.
We reject this overly broad assertion. As already discussed, the platforms moderated similar content long before any of the Government defendants engaged in the challenged conduct. In fact, the platforms, acting independently, had strengthened their pre-existing content-moderation policies before the Government defendants got involved. For instance, Facebook announced an expansion of its COVID–19 misinformation policies in early February 2021, before White House officials began communicating with the platform. And the platforms continued to exercise their independent judgment even after communications with the defendants began. For example, on several occasions, various platforms explained that White House officials had flagged content that did not violate company policy. Moreover, the platforms did not speak only with the defendants about content moderation; they also regularly consulted with outside experts.
This evidence indicates that the platforms had independent incentives to moderate content and often exercised their own judgment.
The claim that “Kamala Harris censored” people is just not at all true. As Trump-appointee Amy Coney Barrett noted in the Murthy decision, the platforms’ moderation choices did not appear to be impacted by government requests.
But Walz’s response is also bad. While it didn’t make it into the transcript, it appears beyond just saying the “fire in a crowded theater” line, he almost claimed that “hate speech” isn’t protected under the First Amendment. He’s wrong on both of these.
Vance makes reference to some of Walz’s earlier comments, though even Eugene Volokh has suggested that, in context, Walz’s earlier comments about “misinformation and hate speech” weren’t as bad as people made them out to be, because he was narrowly talking about elections, where there can be some narrow limits.
But, still, I had hoped that someone would have pulled (non-lawyer) Tim Walz aside and explained to him the basics of the First Amendment. His comments here show that didn’t happen.
First, it’s wrong. It’s wrong for Walz to claim that that’s the “Supreme Court’s test.” Because it’s not. Yes, the line comes from a Supreme Court case, Schenck v. United States, but even when that case was considered good law (which hasn’t been the case since Tim Walz was five years old), it wasn’t “the test” laid out by the Supreme Court.
The “fire in a crowded theater” line was dicta (a non-binding aside) in a case that was used to jail Charles Schenck not for yelling fire, but for handing out anti-war pamphlets.
It’s also wrong because just about five years after Walz was born, we got the decision in Brandenburg v. Ohio, which effectively turned Schenck into bad law and gave us the “incitement to imminent lawless action” test, which is a level yelling fire in a crowded theater won’t often reach.
Now, some people still say that using this line is okay because it’s “colloquially true” or that it’s meaningful in noting that there are, in fact, some limits to free speech. Others point out that falsely yelling fire in a crowded theater might still lead to arrest and other charges under other theories of law.
But this is wrong. Using that line is bad because it is almost always used as a justification for taking away free speech rights from someone the utterer doesn’t like. The perfect example, of course, is the Schenck case itself.
Does Tim Walz think someone handing out anti-war flyers should be locked up? I’d hope not!
It’s also bad because it gives us no useful measure or limit on the concept. It stands in for the idea that “well, some speech is really bad.” But that’s not a useful tool to determine what is, and what is not, speech that is protected under the First Amendment, especially when the Supreme Court has given us actual tests, while simultaneously making it clear it has no appetite for changing its limited categories of unprotected speech.
As the Supreme Court ruled in 2009, it’s not in the business of declaring new categories of speech unprotected:
Our decisions in Ferber and other cases cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment.
The problem with the “fire in a crowded theater” line is that it is almost universally used to suggest some new category of speech that should not be considered protected by the First Amendment. The Supreme Court has made it pretty clear that’s not how it works.
If you want to argue that the line is merely referencing the well-documented categories of unprotected speech, it’s still bad, because we have a clearly established list of unprotected speech that they could cite just as easily, and it allows us to determine if the speech in question is, in fact, unprotected.
Either way, neither of the candidates last night understood the First Amendment issues. They were both so out of their element on this subject that not only did they both get it wrong, but both of them then missed the opportunity to respond to the other noting why they were wrong about the First Amendment.
You could perhaps argue that Walz, who is not a lawyer, shouldn’t know the specifics. But if he’s aiming to be next in line to the Presidency, he certainly should. As for Vance, he is a lawyer. But, he went to Yale Law, and, well, they’re not always so great on the First Amendment.
Two bits of news came out of the letter Mark Zuckerberg sent to Rep. Jim Jordan this week (and how people responded to it), neither of which are what you’re likely to have heard about. First, Donald Trump seems to be accusing himself of rigging the 2020 election against himself.
And, second, Mark Zuckerberg has absolutely no spine when it comes to Republican pressure on Meta’s moderation practices. He falsely plays into their fundamentally misleading framing, all to win some temporary political favors by immediately caving to pressure from the GOP.
You may have seen a bunch of headlines in the past couple of days claiming that Mark Zuckerberg “admitted” that the Biden White House pressured him about “censoring” content and he wished he’d stood up to them more. It got plenty of coverage. Unfortunately, almost none of that coverage is accurately reporting what happened, what’s new, and what was actually said.
The reality is pretty straightforward: Mark Zuckerberg folded like a cheap card table, facing coercive pressure from Rep. Jim Jordan to modify Meta’s moderation practices. What he says misleadingly plays into Jordan’s mendaciously misleading campaign. In short, Zuckerberg’s claim that he would stand up to government pressure on moderation is undermined by the fact that he’s revealing this literally while caving to government pressure on moderation.
First, it’s necessary to understand the history. It’s no secret that the White House sought to persuade social media companies to adjust their content moderation practices. They said so publicly. Hell, there was just a big, giant, massive Supreme Court case about that, where the details of government requests to social media were on full display.
But, as the Supreme Court Justices themselves made clear during the oral arguments, the White House reaching out to media providers and trying to persuade them on editorial decisions is nothing new, nor is it problematic. The only thing that matters is if the government uses coercive techniques, in which it threatened the company or punished the company if it failed to comply.
Justices Kavanaugh and Kagan were talking about this during the oral arguments:
JUSTICE KAVANAUGH: You’re speaking on behalf of the United States. Again, my experience is the United States, in all its manifestations, has regular communications with the media to talk about things they don’t like or don’t want to see or are complaining about factual inaccuracies.
[….]
JUSTICE KAGAN: I mean, can I just understand because it seems like an extremely expansive argument, I must say, encouraging people basically to suppress their own speech. So, like Justice Kavanaugh, I’ve had some experience encouraging press to suppress their own speech.
You just wrote about editorial. Here are the five reasons you shouldn’t write another one. You just wrote a story that’s filled with factual errors. Here are the 10 reasons why you shouldn’t do that again.
I mean, this happens literally thousands of times a day in the federal government.
And just the fact that the Supreme Court did not see any evidence of this being coercive should say something.
Nothing in what Zuckerberg said changes any of that. He simply repeats what was already known and already public: that, yes, White House officials sought to persuade Meta in how it handled some moderation elements. Much of that pressure was public, and even the pressure that was private has been revealed before.
Remember, Jim Jordan has spent the last couple of years weaponizing the House Judiciary Committee to misleadingly claim that the government was “weaponized” to suppress conservative speech. He’s sent dozens upon dozens of subpoenas, almost all of which misleadingly demand responses or data based on his false belief that basic, fundamental trust & safety work is somehow an attack on free speech rights.
But make no mistake about Jordan’s end goal here: it is to prevent websites from ever doing anything to try to counter the spread of disinformation. We’re not even talking about removing or blocking content. He doesn’t want there to be any effort to fact check or debunk nonsense. And that’s because the party that he is a part of is the largest producer and purveyor of complete and utter bullshit. And having people point that out is seen as an attack.
So Jordan has framed any attempt to refute nonsense as “an attack on free speech.” Tragically, much of the media (and plenty of tech execs) have fallen into this trap and accepted Jordan’s framing.
Finally, that brings us to Zuckerberg’s letter from this week. In it, he admits (again) what has been widely known and widely reported on, and was central to the Murthy v. Missouri Supreme Court case: that some people in the White House sought to persuade Meta to take Covid misinfo more seriously.
In 2021, senior officials from the Biden Administration, including the White House, repeatedly pressured our teams for months to censor certain COVID-19 content, including humor and satire, and expressed a lot of frustration with our teams when we didn’t agree. Ultimately, it was our decision whether or not to take content down, and we own our decisions, including COVID-19-related changes we made to our enforcement in the wake of this pressure. I believe the government pressure was wrong, and I regret that we were not more outspoken about it. I also think we made some choices that, with the benefit of hindsight and new information, we wouldn’t make today. Like I said to our teams at the time, I feel strongly that we should not compromise our content standards due to pressure from any Administration in either direction and we’re ready to push back if something like this happens again.
So what is actually revealed here? Literally nothing new at all. It was already widely reported that the White House tried to persuade Meta to be more responsive. And there were reasons for this. People were dying from Covid, and internal documents show that Zuckerberg himself was hoping that Facebook would be helpful in getting people vaccinated. But the platform was being bombarded with conspiracy theories, lies, and nonsense that was misleading people into putting lives at risk.
So, yes, of course the White House would reach out to Meta and suggest that the platform should do better in stopping the flood of misleading, dangerous info. None of that should be revelatory or even noteworthy.
And if you read what Zuckerberg says here, he still says that they didn’t do anything because of pressure from the White House: “Ultimately, it was our decision whether or not to take content down, and we own our decision, including COVID-19-related changes we made to our enforcement…”
But then he says, “I believe the government pressure was wrong, and I regret that we were not more outspoken about it.”
And what does that even mean? First of all, Meta was pretty fucking outspoken. When Joe Biden accused Meta of “killing people,” Meta went all out in calling that claim crazy. They said that the Biden administration was “looking for scapegoats for missing their vaccine goals” and “we will not be distracted by accusations which aren’t supported by the facts.”
So, what’s new here? It was widely known that the White House wanted Meta to be more responsible about Covid and vaccine misinfo. They said so publicly and privately. The private emails were widely reported on and subject to a landmark Supreme Court case that was just decided less than two months ago. None of that is new.
Zuckerberg also says that they made their own decisions and it wasn’t due to White House pressure, which confirms what was said during the Supreme Court case.
The only “new” thing here is Zuck suggesting he regrets not being more aggressive in… what…? In making sure more people saw misinformation that might lead them to make bad decisions and get sick and possibly die? And again, it’s not even that Meta didn’t push back. They pushed back hard.
And yet, Jim Jordan and the House Judiciary are claiming that this was some big revelation:
So, again, neither of the first two points are new or even meaningful. It was public knowledge that the White House spoke to Meta. And, of course Meta moderated (not censored) the speech of Americans, because those Americans violated Meta’s policies. And, as a private entity, they’re free to do that. That’s American freedom, something Jim Jordan seems unable to comprehend.
Regarding the Hunter Biden laptop story, that’s the next paragraph of Zuckerberg’s letter:
In a separate situation, the FBI warned us about a potential Russian disinformation operation about the Biden family and Burisma in the lead up to the 2020 election. That fall, when we saw a New York Post story reporting on corruption allegations involving then-Democratic presidential nominee Joe Biden’s family, we sent that story to fact-checkers for review and temporarily demoted it while waiting for a reply. It’s since been made clear that the reporting was not Russian disinformation, and in retrospect, we shouldn’t have demoted the story. We’ve changed our policies and processes to make sure this doesn’t happen again for instance, we no longer temporarily demote things in the U.S. while waiting for fact-checkers.
Again, literally nothing in this is new. All of this was known at the time. Indeed, Meta admitted it at the time and admitted that it had probably been too quick to limit the spread of the story (just as Twitter had done, admitting the very next day that the policy was a bad one and needed to change). We’ve covered all this in great detail before.
Furthermore, Zuckerberg said this exact same thing on Joe Rogan two years ago. This also led people to falsely claim that he admitted that they blocked the spreading of that NY Post story due to pressure from the White House, even though he said no such thing.
Both times, he said that the FBI gave general warnings about “hack and leak” operations that the Russians were working on, which is no surprise given that the Russians did exactly that during the 2016 election in releasing the DNC emails. The FBI (unsurprisingly!) also said that there were a number of potential targets, including Hunter Biden. And that was also obvious. Anyone in the President’s family and political circle would be obvious targets. At no point has anyone suggested that the FBI said that they should suppress this particular story.
And, remember, the original Hunter Biden story was weakly sourced. Multiple news organizations, including Fox News, had turned down the story. That was because there were all sorts of questions about its legitimacy. And given what had happened in the past, it seemed wise to be cautious.
Indeed, these days Republicans seem oddly quiet about news organizations still holding back on reporting on the documents that were hacked from top Republicans like Roger Stone by the Iranians in this election cycle. Is Jim Jordan going to accuse companies of illegally interfering in the election because they won’t publish those documents that are embarrassing to Trump? Why the silence Jim? Oh right.
Even more to the point, at the time of that NY Post story, the Trump administration was in charge. It was October of 2020, a month before the 2020 election. So, this “truth” from Donald Trump is absolutely insane, because he appears to be accusing himself of “rigging” the election against himself:
If you can’t see that, it’s Donald Trump posting on Truth Social:
“Zuckerberg admits that the White House pushed to SUPPRESS HUNTER BIDEN LAPTOP STORY (& much more!). IN OTHER WORDS, THE 2020 PRESIDENTIAL ELECTION WAS RIGGED. FoxNews, New York Post, Rep. Laurel Lee, House Judiciary Committee.
Again, that is Trump saying “the White House” in 2020 “rigged” the Presidential election. So far, the only reporter I’ve seen call this out is Philip Bump at the Washington Post. This is Trump being so confused, he’s accusing himself of rigging the election.
Finally, Zuckerberg’s letter concludes with even more nonsense.
Apart from content moderation, I want to address the contributions I made during the last presidential cycle to support electoral infrastructure. The idea here was to make sure local election jurisdictions across the country had the resources they needed to help people vote safely during a global pandemic. I made these contributions through the Chan Zuckerberg Initiative. They were designed to be non-partisan spread across urban, rural, and suburban communities. Still, despite the analyses I’ve seen showing otherwise, I know that some people believe this work benefited one party over the other. My goal is to be neutral and not play a role one way or another or to even appear to be playing a role. So I don’t plan on making a similar contribution this cycle.
Why is he even bringing up his personal donations if this is about Meta? And, furthermore, is he really saying that he won’t do any more donations simply because “some people believe” that donations for safe voting benefit one party or another?
This is the most spineless response to a mendacious, targeted campaign by a politician who is weaponizing the power of the government to pressure a media company over its editorial policies. And Zuck folds like a cheap card table. And it’s doubly ironic, because part of that folding is claiming he won’t fold again (something he didn’t even do in the first place, but is doing now).
Oh, and of course, Elon jumps in to say this “sounds like a First Amendment violation.”
Dude, the Supreme Court literally just covered this in a case that talked quite a bit about your own site and said (pretty fucking clearly) that the record did not support any claim of a First Amendment violation.
All of this is stupid. That letter is written in the worst possible way. While it does not state anything fundamentally false, it makes it sound like things that have been public knowledge for years are somehow a new admission. It further directly enables idiots like Trump, Jordan, and Musk to claim false things about what happened. And, finally, it just contributes to a totally unnecessary news cycle.
The only actual “news” out of all this is (1) Zuckerberg has no spine and simply cannot stand up to bad faith government pressure to change his moderation practices when it comes from Republicans (he was fine doing so when it came from Democrats) and (2) Donald Trump has accused himself of rigging his own election against himself.
Zuckerberg has to know how this would play out. After all, the same misleading reaction happened two years ago when he went on Rogan’s podcast. The only reasonable interpretation of this is that he sent this letter, knowing how it would be interpreted, to give Jordan/Trump red meat to continue believing their own false and misleading claims in case Trump wins in the fall. It’s stupid and cynical, but that’s the kind of politics Meta seems to play these days.
RFK Jr. seems to believe that being a Kennedy and spouting anti-vax nonsense qualifies him to be President. Now, he’s taking his delusions to a whole new level by arguing that the Supreme Court’s Murthy decision means the government can’t even talk to social media companies anymore. Buckle up, folks, this is going to be a wild ride.
Vanity Fair recently had quite the takedown of RFK Jr. based on conversations with his own family members. It is made quite clear that RFK Jr. is not one to let facts get in the way of whatever nonsense he’s decided to claim to the world.
And while people can point to lots of high-profile ways in which that has played out, I’m going to point out one that is relevant to Techdirt’s general interests: RFK Jr. has been trying desperately to sue whoever he can think of to complain about getting booted from Facebook.
However, he also sued the Biden administration directly in 2023. He kept prattling on ignorantly, arguing that the administration is deliberately trying to stifle his speech (which is kind of hilarious, given that any time he talks, more people realize what a nutcase RFK Jr. actually is). RFK filed the lawsuit in the same court where Missouri/Louisiana and some other nonsense peddlers appeared to be having some success in their equally batshit lawsuit against the administration over social media moderation.
Soon after filing the case in the same court, where they were guaranteed to get the same judge, RFK sought to merge his case with the Missouri case. Judge Terry Doughty, after issuing his batshit crazy decision in the case, more or less agreed to merge Kennedy’s case into the Missouri v. Biden docket. He issued a similar injunction as the one he issued in that case, but put it on hold until ten days after the Supreme Court sent down its ruling in the original Missouri case.
As you likely now know, after getting a still crazy (but slightly less crazy) Fifth Circuit ruling, the Supreme Court took the case, newly dubbed Murthy v. Missouri, and made it clear that none of the plaintiffs could show standing. The majority opinion also made it quite clear that both the district court decision and the Fifth Circuit decision were crazy because they were willing to accept absolute nonsense as fact, when it was obviously not.
While that decision sent the case back down to the lower court, unless you were delusional and totally committed to believing things that were not true, you would realize that this basically meant that such a case had no chance to go anywhere.
Enter RFK Jr.
The day after the Supreme Court ruling came down, the DOJ did the proper thing and notified Judge Doughty of the Supreme Court opinion. The DOJ also pointed out that given the nature of the Supreme Court ruling, RFK Jr. also clearly lacked standing. So, rather than letting the injunction go into effect, the DOJ intended to file a motion asking Judge Doughty to “vacate” the injunction he had granted RFK.
While this Court’s stay remains in effect, the government intends to file with this Court a motion for an indicative ruling under Federal Rule of Civil Procedure 62.1 that the Court would vacate the preliminary injunction in Kennedy because the Kennedy plaintiffs (who relied exclusively on the same set of facts “before the Court in Missouri v. Biden,” ECF No. 6-1 at 2) lack standing under the Supreme Court’s analysis in that case. If the Court issues such a ruling, the government would seek a remand from the Fifth Circuit under Federal Rule of Appellate Procedure 12.1 to allow this Court to enter the requested vacatur. In the alternative, the government plans to ask this Court to stay the Kennedy preliminary injunction for the full duration of the pending appeal from that injunction, if the Court declines to enter the requested indicative ruling.
The DOJ also argued that the clock on the “10 days” until the injunction supposedly went into effect didn’t start ticking until the Supreme Court officially sent the decision to the lower court, which would be a month or so later:
Under Supreme Court Rule 45.3, the Supreme Court “will send” its judgment to the lower court “32 days after entry of the judgment, unless the Court or a Justice shortens or extends the time, or unless the parties stipulate that it be issued sooner.” The Supreme Court will accordingly send down its ruling on Monday, July 29, 32 days (plus a weekend day) from yesterday. The government understands this Court’s stay of the preliminary injunction in Kennedy to extend for ten days after that date—i.e., the date on which the Supreme Court “sends down” its ruling in Missouri.
RFK Jr’s lawyers jumped in to say “nuh uh” and to suggest that the injunction (which the Supreme Court had clearly rejected regarding the other plaintiffs in the case) should go into effect very soon.
Two days ago, on Wednesday, June 26, 2024, the Supreme Court handed down its ruling in the Missouri v. Biden case. See Murthy v. Missouri, No. 23-411, 2024 WL 3165801 (U.S. June 26, 2024). Accordingly, under the plain language of this Court’s ruling—and contrary to the Notice of Opinion filed yesterday by Defendants—it would appear that this Court’s stay will be “automatically lifted” on July 7, 2024—eleven days after Murthy was handed down—and that the preliminary injunction will, absent further judicial action, become operative on that day.
The DOJ then felt the need to file a “motion for clarification” from Judge Doughty. First, they point out that RFK’s lawyers are misrepresenting what Judge Doughty actually said in his ruling on the stay of the injunction:
Defendants disagree with the Kennedy Plaintiff’s interpretation, which does not accord with the Supreme Court’s rules governing the timing of when the Supreme Court “sends down” its opinions and judgments. The Kennedy Plaintiffs seize on the Court’s use of the phrase “handed down” at some points in its opinion—and if that were all the Court’s order said, then the Plaintiffs’ interpretation would be reasonable. But in the decretal language of its order—the part that has actual legal force—the Court unambiguously referred to the date on which the Supreme Court “sends down” its ruling. See Dkt. 38 at 23 (“IT IS FURTHER ORDERED that in light of the stay issued by the Supreme Court of the United States in Missouri v. Biden, this order is STAYED for ten (10) days after the Supreme Court sends down a ruling in Missouri v. Biden.”). Plaintiffs never acknowledge that language or attempt to square their interpretation with it.
But, even more importantly, the DOJ says, in effect, “hey, in light of SCOTUS saying ‘no standing’ for the other plaintiffs, how about we extend the stay on the injunction no matter what so we can brief you on why RFK also has no standing”:
In the alternative, if the Court adopts Plaintiffs’ characterization of the duration of the stay, Defendants request that this Court grant a 26-day extension of the stay beyond the expiration date urged by Plaintiffs, until and including Friday, August 2, 2024, to enable the parties to fully brief and this Court to decide (1) a motion by Defendants for an indicative ruling under Federal Rule of Civil Procedure 62.1 that the Court would vacate the preliminary injunction in Kennedy because the Kennedy plaintiffs lack Article III standing under the Supreme Court’s analysis in Murthy, and (2) in the alternative, a motion by Defendants for a stay pending appeal for the full duration of the pending appeal from that injunction, if the Court declines to enter the requested indicative ruling.
In response, RFK filed something saying that the DOJ should have requested this kind of clarification when Doughty first issued his “10 days” ruling:
If Defendants genuinely found the Court’s stay ruling unclear, or if they viewed eleven days as insufficient, they had five months to ask this Court or the Fifth Circuit for relief. Instead, Defendants sat on their hands, and now, five days after Murthy was handed down, Defendants move for “clarification” of a ruling that is already clear, and for the further stay of an injunction already on appeal.
But then, RFK goes on to argue (ridiculously, and wrongly) that he has much stronger arguments for standing on the basis of him being a laughably unqualified candidate for President.
The bottom line is that the Kennedy Plaintiffs have much stronger standing than did the Missouri plaintiffs, and Mr. Kennedy in particular, as a candidate for President who is still being brutally censored on major social media platforms (just as this Court predicted) , urgently requires and is entitled to vindication of his rights
But that’s not what gives you standing. What gives you standing, Bobby Jr., is actual evidence that the government coerced social media companies to shut down your accounts, and that it didn’t happen because your anti-vax nonsense violated their policies. And RFK can’t show that because it didn’t actually happen.
However, they also argue that the right place for this discussion is not in Judge Doughty’s courtroom, but rather at the Fifth Circuit. As we’ll discuss below, this was the most compelling bit to Judge Doughty who decided that this is out of his courtroom for now.
The DOJ then responded to this even more stringently, pointing out that RFK obviously has no standing, based on the Murthy ruling.
First, the Supreme Court’s decision in Missouri demonstrates that the Kennedy Plaintiffs lack standing to obtain a preliminary injunction. The Kennedy Plaintiffs stated that they “do not rest their claims on censorship of their own speech. Rather, Plaintiffs have brought this case as (and on behalf of) social media users, whose right to an uncensored public square is being systematically violated.” Dkt. 20 at 2.1 And this is the sole basis for standing that this Court found for Plaintiff Sampognaro, who “submitted no direct evidence of content suppression.” Dkt. 38 at 11. But the Supreme Court rejected this “startlingly broad” theory, “as it would grant all socialmedia users the right to sue over someone else’s censorship—at least so long as they claim an interest in that person’s speech.” Missouri, 2024 WL 3165801, at 16. And the Court held that such a theory fails to establish an Article III injury absent “any specific instance of content moderation” of a third-party to whom Plaintiff had a “concrete, specific connection,” “that caused [plaintiff] identifiable harm,” id. at 16-17. Plaintiffs fail to supply any such example.
Nor can the Kennedy Plaintiffs rely on a direct censorship theory of standing following Missouri because they have failed to show any future injury that is traceable to the government conduct they seek to enjoin—much less any future injury that is traceable to each of the governmental Defendants covered by the preliminary injunction. Id. at 7-8; see id. at 9 (“‘[P]laintiffs must demonstrate standing for each claim that they press’ against each defendant, ‘and for each form of relief that they seek.’”) (citation omitted). In Missouri, the Supreme Court explained that “[t]he primary weakness in” the plaintiffs’ reliance on “past restrictions” of their content by social-media platforms is that this Court made no “specific causation findings with respect to any discrete instance of content moderation”—in other words, no findings that any act of content moderation was attributable to actions by Defendants (much less a particular Defendant) as opposed to the third-party platforms’ exercise of their independent discretion. Id. at *8. The Kennedy Plaintiffs motion for a preliminary injunction, which “submit[s] no new evidence,” Dkt. 6-1 at 1, did not rectify that deficiency.
Furthermore:
Kennedy adduced no evidence establishing that any social-media company’s action against his accounts can be attributed to the actions of a Defendant. In fact, the record evidence is to the contrary: Facebook explained that it removed pages and accounts linked to the “[D]isinformation [D]ozen” “for violating [Facebook’s] policies,” and noted that it was not imposing a complete ban because “the remaining accounts associated with these individuals [were] not posting content that [broke Facebook’s] rules.” Missouri, Dkt. 10-1, Ex. 37 at 1. That suggests the relevant actions reflected the platform’s own decisions, not any governmental action.
The DOJ then also points to the recent Vullo decision from the Supreme Court, which reinforced the standards from Bantam Books in deciding whether or not a government official has coerced a third party to censor someone. The DOJ says that there’s no way RFK can meet the standards set forth in that decision:
As the Supreme Court recently emphasized in a decision issued after the Kennedy preliminary injunction, it is perfectly “permissible” for the government to “attempt[] to persuade” a private party not to disseminate speech, National Rifle Association, 602 U.S. at 188, so even a showing that platforms would not have taken content-moderation actions against plaintiffs’ speech but for the government’s actions would not suffice to show that those actions violated the First Amendment. Rather, the relevant question is whether the government’s “conduct … , 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.”
The Kennedy Plaintiffs are unlikely to be able to demonstrate on the merits that the government coerced the platforms to act given the difficulties identified by the Supreme Court in even establishing that the government’s actions influenced the platforms. See Missouri, 2024 WL 3165801, at *13 n.8 (“acknowledging the real possibility that Facebook acted independently in suppressing [the plaintiff’s] content”). Accordingly, the injunction should be dissolved
The DOJ also points out that Doughty should stay the injunction if only because the issue is going to have to be dealt with by the Fifth Circuit anyway, and it’s standard practice to stay such an injunction until an appeal is decided. Also, they point out that if the Kennedy injunction goes into effect, it will bar all sorts of communications that the Supreme Court in Murthy said were perfectly normal, reasonable communications between government officials and private companies.
Because the universal preliminary injunction here is identical to the injunction in Missouri, it also will inflict exactly the same harms that the Supreme Court found sufficient to issue a stay in that case
But… the very next day, Judge Doughty basically wiped his hands of the issue, saying that the case is out of his court, and if there’s an issue they should take it up with the Fifth Circuit:
This Court lacks jurisdiction to address Defendants’ request. Generally, a notice of appeal divests the district court of jurisdiction over the judgment or order that is the subject of the appeal. Sierra Club, Lone Star Chapter v. Cedar Point Oil Co., Inc., 73 F.3d 546, 578 (5th Cir. 1996). The Court in Sierra Club noted that Fed. R. Civ. P. Rule 62(d) provides an exception to this rule when an appeal is taken from an interlocutory or final judgment granting, dissolving or denying an injunction where the district court may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party. Id. The court in Sierra Club further noted that the authority granted by Rule 62(c) does not extend to the dissolution of an injunction and is limited to maintaining the status quo.
But wouldn’t maintaining the status quo at least mean maintaining the stay that blocks the injunction from going into effect? He’s doing the reverse of “maintaining the status quo” by apparently letting his original injunction go into effect. Which means, in theory, that the government is yet again barred from talking to social media companies even as the Supreme Court just said that was stupid.
And thus… it seems that the DOJ is likely to make these arguments again before the Fifth Circuit, which is where logic and common sense go to die.
The Supreme Court on Wednesday was 1-and-1, with one good decision, in Murthy v. Missouri, and one doozy in Snyder v. US, where it somehow read a statute criminalizing corruption to… not actually criminalize corruption. But this post is about the one that, happily, the Court got right. Not just because it got the result right, and in rejecting the plaintiffs’ specious First Amendment claims ended up vindicating the platforms’. But also because this iteration of the Supreme Court often struggles with adhering to certain supposedly timeless jurisprudential fundamentals. And in this case they seemed to get them right, which will matter in other cases where there are meritorious First Amendment interests at stake.
Cutting against this favorable view of the decision, however, is the fair concern that the Court never spoke to any of the First Amendment issues implicated by the litigation, focusing instead exclusively on the plaintiffs’ standing, as well as the concern that by denying the plaintiffs standing the Court may have made it harder to bring First Amendment challenges. These are both credible concerns, but ultimately probably not born out.
With regard to the First Amendment, it is true that the decision never directly addressed the constitutionality of potentially jawboning acts by the government. But it also didn’t say anything to unilaterally foreclose all such claims, which has led some to speculate about problems this ruling could cause. While the jawboning claims here were frivolous, it’s possible that in some future case the government might really go too far to affect platforms’ moderation policy and thus violate the First Amendment rights of their users. But if such claims might need to be brought, we’re hardly in the dark; instead we now have the decision from earlier this month in the NRA v. Vullo case to provide updated, yet still historically consistent, precedent setting forth that government officials still can’t pressure a third party as a means of censoring another speaker it couldn’t constitutionally silence itself.
The Court also never directly addressed how the injunction allowed by the Fifth Circuit chilled Internet platforms’ First Amendment rights, both to moderate as they freely would choose, and to even freely speak to their own government officials. But the decision does seem to implicitly accept that these platform rights exist, particularly in how the decision kept referencing that platforms engaged in moderation practices based on what they judged needed it. See for instance:
With their billions of active users, the world’s major social-media companies host a “staggering” amount of content on their platforms. Twitter, Inc. v. Taamneh, 598 U. S. 471, 480 (2023). Yet for many of these companies, including Facebook, Twitter, and YouTube, not everything goes. Under their longstanding content-moderation policies, the platforms have taken a range of actions to suppress certain categories of speech. They place warning labels on some posts, while deleting others. They also “demote” content so that it is less visible to other users. And they may suspend or ban users who frequently post content that violates platform policies. For years, the platforms have targeted speech they judge to be false or misleading… [p.2]
Or from later, referencing Facebook’s “independent judgment,” which surely must be constitutionally protected independent judgment:
By acknowledging the real possibility that Facebook acted independently in suppressing Hines’ content, we are not applying a “new and heightened standard,” as the dissent claims. Post, at 20. The whole purpose of the traceability requirement is to ensure that “in fact, the asserted injury was the consequence of the defendants’ actions,” rather than of “the independent action” of a third party. Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26, 42, 45 (1976). [p.20]
Or this bottom line, saying that platforms could still make the decisions it made, and would be considered independent, even when they were made in the wake of discussions with government officials.
But without evidence of continued pressure from the defendants, it appears that the platforms remain free to enforce, or not to enforce, those policies—even those tainted by initial governmental coercion. The platforms are “not parties to the suit, and there is no reason they should be obliged to honor an incidental legal determination the suit produced.” Lujan, 504 U. S., at 569 (plurality opinion); see also Haaland v. Brackeen, 599 U. S. 255, 293–294 (2023). [p.26]
In fact, even Justice Alito’s dissent seems to acknowledge that these platform rights exist (and in a way we’ve suggested they could be implicated by actual jawboning pressure):
[I]nternet platforms, although rich and powerful, are at the same time far more vulnerable to Government pressure than other news sources. If a President dislikes a particular newspaper, he (fortunately) lacks the ability to put the paper out of business. But for Facebook and many other social media platforms, the situation is fundamentally different. They are critically dependent on the protection provided by §230 of the Communications Decency Act of 1996, 47 U. S. C. §230, which shields them from civil liability for content they spread. They are vulnerable to antitrust actions; indeed, Facebook CEO Mark Zuckerberg has described a potential antitrust lawsuit as an “existential” threat to his company. And because their substantial overseas operations may be subjected to tough regulation in the European Union and other foreign jurisdictions, they rely on the Federal Government’s diplomatic efforts to protect their interests.
So while we wait for the decision in the NetChoice cases there still isn’t clear Supreme Court precedent as to whether platforms definitely have First Amendment rights in how they moderate, for the first time there is now at least some language to point to in any future cases where those platform rights might need to be defended to support the idea that they indeed do.
Which leads to the second area of potential concern with the decision, which is that instead of ruling on the First Amendment substance, the decision focused entirely on standing. And by not finding that these plaintiffs had any, the concern is that standing doctrine may have been narrowed, which wouldn’t be good for future First Amendment challenges. It’s why we don’t share the concern that there is anything wrong with the challenge in 303 Creative, where prospective injury was enough to prompt judicial review. We’ve also supported broad standing in the constitutional challenge of FOSTA, where it was ultimately found, although the challenge was later denied on the merits. Standing, after all, does not presuppose victory on the merits – it’s just about getting the legal challenge through the courthouse door.
But the decision here does not really close the door on these challenges. It largely fell back on established precedent to discuss what would need to be plead by someone pressing this sort of First Amendment claim, stressing in particular the traceability of the alleged injury, and, in the case where injunctions were being sought, evidence that any injury was likely to continue into the future.
The plaintiffs, two States and five social-media users, sued dozens of Executive Branch officials and agencies, alleging that they pressured the platforms to suppress protected speech in violation of the First Amendment. The Fifth Circuit agreed, concluding that the officials’ communications rendered them responsible for the private platforms’ moderation decisions. It then affirmed a sweeping preliminary injunction. The Fifth Circuit was wrong to do so. To establish standing, the plaintiffs must demonstrate a substantial risk that, in the near future, they will suffer an injury that is traceable to a Government defendant and redressable by the in junction they seek. Because no plaintiff has carried that burden, none has standing to seek a preliminary injunction. [p.1]
The basic failure the Court highlighted was that the plaintiffs could not show, not even with the discovery that it had, that the injury it alleged – having had their speech moderated on a platform – was due to the government having caused it, when it was the actions of the platform – notably, an “independent decisionmaker” (see p.9) – that suppressed it.
The primary weakness in the record of past restrictions is the lack of specific causation findings with respect to any discrete instance of content moderation. The District Court made none. Nor did the Fifth Circuit, which approached standing at a high level of generality. [p.11]
It did not help that this case was a mess, with multiple plaintiffs, multiple platforms, and multiple government agencies involved.
The Fifth Circuit also erred by treating the defendants, plaintiffs, and platforms each as a unified whole. Our decisions make clear that “standing is not dispensed in gross.” TransUnion LLC v. Ramirez, 594 U. S. 413, 431 (2021). [p.13]
Nor did it help that the result of this litigation strategy was a voluminous, near-impenetrable record, and one that could not show a line between an alleged injury by any plaintiff and a specific defendant having taken a specific act that caused it.
It is especially important to hold the plaintiffs to their burden in a case like this one, where the record spans over 26,000 pages and the lower courts did not make any specific causation findings. As the Seventh Circuit has memorably put it, “[j]udges are not like pigs, hunting for truffles buried [in the record].” Gross v. Cicero, 619 F. 3d 697, 702 (2010) (internal quotation marks omitted). [p.20]
The plaintiffs treat the defendants as a monolith, claiming broadly that “‘the governmen[t]’” continues to communicate with the platforms about “‘content-moderation issues.’” Brief for Respondents 29 (quoting 83 F. 4th, at 369) [p.22]
It seems pretty obvious that the litigation here was intended to fish for the broad injunction the lower courts had awarded, and it’s similarly pretty obvious by this decision that the Supreme Court has no patience for this type of throw-lots-of-provocative-complaints-at-the-wall-and-hope-something-sticks litigation.
The Fifth Circuit also erred by treating the defendants, plaintiffs, and platforms each as a unified whole. Our decisions make clear that “standing is not dispensed in gross.” TransUnion LLC v. Ramirez, 594 U. S. 413, 431 (2021). That is, “plaintiffs must demonstrate standing for each claim that they press” against each defendant, “and for each form of relief that they seek.” [p.13]
This case was deliberately designed as a DDOS-attack against good jurisprudence, hoping with enough plaintiffs, defendants, and platforms involved courts (especially those in the 5th Circuit…) would be inclined to accept any provocative allegations as true. While it managed to work at the outset, it did not get past the Supreme Court.
But litigation seeking a remedy for an aggrieved plaintiff, tied to an actual record actually supporting the complaint, that carefully spells out how the court’s remedy, applied to a defendant, would redress an injury could still well be welcomed by the courts, just as it was before. But this standing decision itself stands to forestall facially frivolous litigation, and if it can do that, especially litigation that affects others’ speech rights, then it will be a win.
Actual free speech survives for yet another day as the Supreme Court has rejected a bunch of fantasy-land nonsense in a case in which Trumpists were absolutely positive they’d caught the government “censoring” speech on social media. But every time we looked at the actual evidence, all we saw was “lizard people” level conspiracy theory nonsense.
We’ve talked about the Murthy v. Missouri (originally Missouri v. Biden) case for quite some time now. In this case, Missouri and Louisiana, along with a few rando nonsense peddlers online, had sued the Biden administration for supposedly convincing social media companies to remove their speech. While there were some examples of social media companies doing basic content moderation and there were examples of government officials making statements about content moderation, the case did not have any actual evidence of the government coercing websites to remove or limit the reach of the speech.
And that, as the ruling notes, is kind of the whole ballgame.
As we’ve discussed at great length, both of the following can be true: it absolutely should violate the First Amendment for government officials to threaten and coerce private parties to get them to remove speech and nothing in this case showed any form of actual coercion.
What it showed was a bunch of wild ass conjecture, ridiculously wrong claims, and laughably stupid interpretations of basic everyday content moderation and information sharing. And yet a very partisan district court judge bought every single loony claim and issued the most ridiculously stringent opinion a year ago, insisting that basically every content moderation decision on social media could be traced back to government threats, and ordering nearly all communication between the government and websites to stop.
The 5th Circuit recognized that the lower court went overboard and tried to clean things up, but issued multiple rulings that just made another mess of things. It said that many of the government agencies hadn’t coerced, but some had, and left no clear rules or any way to understand when something crossed the line. In fact, the 5th Circuit ruling was so unhelpful that while their initial ruling said that the government’s Cybersecurity and Infrastructure Security Agency (CISA) had not coerced, a few weeks later they reissued the opinion changing just one paragraph to say that it had coerced. With no explanation.
So, if you were trying to understand where that line was and what coercion was, you had no chance.
When the Supreme Court heard the case earlier this year, it seemed clear that the Justices were perplexed as to how this case even existed. Justices across the political spectrum pointed out that the record appeared to be filled with nonsense and conspiracy theories and claims that made no sense at all.
And thus we get today’s ruling that rejects the lower courts and says none of the plaintiffs have anything that conveys standing to bring the case in the first place. The lower courts should have rejected the case quickly. We’ll have a more thorough analysis of the majority opinion (which was written by Justice Barrett, and signed onto by everyone except for Alito, Thomas, and Gorsuch) later from Cathy Gellis (who filed our own amicus brief in this case).
But the simple summary is this:
A proper case or controversy exists only when at least one plaintiff “establish[es] that [she] ha[s] standing to sue.” Raines, 521 U. S., at 818; Department of Commerce v. New York, 588 U. S. 752, 766 (2019). She must show that she has suffered, or will suffer, an injury that is “concrete, particularized, and actual or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.” Clapper v. Amnesty Int’l USA, 568 U. S. 398, 409 (2013) (internal quotation marks omitted). These requirements help ensure that the plaintiff has “such a personal stake in the outcome of the controversy as to warrant [her] invocation of federal-court jurisdiction.” Summers, 555 U. S., at 493 (internal quotation marks omitted)
The plaintiffs claim standing based on the “direct censorship” of their own speech as well as their “right to listen” to others who faced social-media censorship. Brief for Respondents 19, 22. Notably, both theories depend on the platform’s actions—yet the plaintiffs do not seek to enjoin the platforms from restricting any posts or accounts. They seek to enjoin Government agencies and officials from pressuring or encouraging the platforms to suppress protected speech in the future.
The one-step-removed, anticipatory nature of their alleged injuries presents the plaintiffs with two particular challenges. First, it is a bedrock principle that a federal court cannot redress “injury that results from the independent action of some third party not before the court.” Simon, 426 U. S., at 41–42. In keeping with this principle, we have “been reluctant to endorse standing theories that require guesswork as to how independent decisionmakers will exercise their judgment.” Clapper, 568 U. S., at 413. Rather than guesswork, the plaintiffs must show that the thirdparty platforms “will likely react in predictable ways” to the defendants’ conduct. Department of Commerce, 588 U. S., at 768. Second, because the plaintiffs request forward-looking relief, they must face “a real and immediate threat of repeated injury.” O’Shea v. Littleton, 414 U. S. 488, 496 (1974); see also Susan B. Anthony List v. Driehaus, 573 U. S. 149, 158 (2014) (“An allegation of future injury may suffice if the threatened injury is certainly impending, or there is a substantial risk that the harm will occur” (internal quotation marks omitted)). Putting these requirements together, the plaintiffs must show a substantial risk that, in the near future, at least one platform will restrict the speech of at least one plaintiff in response to the actions of at least one Government defendant. On this record, that is a tall order.
And then:
The primary weakness in the record of past restrictions is the lack of specific causation findings with respect to any discrete instance of content moderation. The District Court made none. Nor did the Fifth Circuit, which approached standing at a high level of generality. The platforms, it reasoned, “have engaged in censorship of certain viewpoints on key issues,” while “the government has engaged in a yearslong pressure campaign” to ensure that the platforms suppress those viewpoints. 83 F. 4th, at 370. The platforms’ “censorship decisions”—including those affecting the plaintiffs—were thus “likely attributable at least in part to the platforms’ reluctance to risk” the consequences of refusing to “adhere to the government’s directives.” Ibid.
We reject this overly broad assertion. As already discussed, the platforms moderated similar content long before any of the Government defendants engaged in the challenged conduct. In fact, the platforms, acting independently, had strengthened their pre-existing content-moderation policies before the Government defendants got involved. For instance, Facebook announced an expansion of its COVID–19 misinformation policies in early February 2021, before White House officials began communicating with the platform. And the platforms continued to exercise their independent judgment even after communications with the defendants began. For example, on several occasions, various platforms explained that White House officials had flagged content that did not violate company policy. Moreover, the platforms did not speak only with the defendants about content moderation; they also regularly consulted with outside experts.
This evidence indicates that the platforms had independent incentives to moderate content and often exercised their own judgment. To be sure, the record reflects that the Government defendants played a role in at least some of the platforms’ moderation choices. But the Fifth Circuit, by attributing every platform decision at least in part to the defendants, glossed over complexities in the evidence.
Indeed, the opinion calls out the lies and the fact that the lower courts took them as fact:
The Fifth Circuit relied on the District Court’s factual findings, many of which unfortunately appear to be clearly erroneous. The District Court found that the defendants and the platforms had an “efficient report-and-censor relationship.”… But much of its evidence is inapposite. For instance, the court says that Twitter set up a “streamlined process for censorship requests” after the White House “bombarded” it with such requests. Ibid., n. 662 (internal quotation marks omitted). The record it cites says nothing about “censorship requests.” See App. 639–642. Rather, in response to a White House official asking Twitter to remove an impersonation account of President Biden’s granddaughter, Twitter told the official about a portal that he could use to flag similar issues. Ibid. This has nothing to do with COVID–19 misinformation. The court also found that “[a] drastic increase in censorship . . . directly coincided with Defendants’ public calls for censorship and private demands for censorship.” 680 F. Supp. 3d, at 715. As to the “calls for censorship,” the court’s proof included statements from Members of Congress, who are not parties to this suit. Ibid., and n. 658. Some of the evidence of the “increase in censorship” reveals that Facebook worked with the CDC to update its list of removable false claims, but these examples do not suggest that the agency “demand[ed]” that it do so. Ibid. Finally, the court, echoing the plaintiffs’ proposed statement of facts, erroneously stated that Facebook agreed to censor content that did not violate its policies. Id., at 714, n. 655. Instead, on several occasions, Facebook explained that certain content did not qualify for removal under its policies but did qualify for other forms of moderation.
Over and over the majority case makes the simple point that you can’t just claim that the government was responsible for content moderation decisions without evidence:
The plaintiffs rely on allegations of past Government censorship as evidence that future censorship is likely. But they fail, by and large, to link their past social-media restrictions to the defendants’ communications with the platforms. Thus, the events of the past do little to help any of the plaintiffs establish standing to seek an injunction to prevent future harms.
The majority opinion also calls out the basic nuttery and lies of the plaintiffs over and over again. For example:
Hoft claims that his content appears on a CISA document tracking posts that various entities had flagged for the platforms as misinformation. The spreadsheet shows that a private entity, the Election Integrity Partnership—not CISA—alerted Twitter to an unidentified article from the Gateway Pundit. And the spreadsheet does not reveal whether Twitter removed or otherwise suppressed that post. This evidence does not support the conclusion that Hoft’s past injuries are likely traceable to the FBI or CISA.
The end result is the case is sent back to the lower courts with a note attached saying, effectively, “hey fuckheads, look at what actually happened here.” This has been quite a term for the Supreme Court rejecting the insane theories of the 5th Circuit (may that continue…)
In short, the Court recognized this case for what it was: utter fucking nonsense, and told the lower courts “there’s no way you could come to this conclusion based on the evidence, which shows no direct connection.”
Still, because the court rejected on standing, it means that it did nothing to actually clarify the standard for determining when so-called “jawboning” crosses the line to First Amendment-violating coercion. The Supreme Court explicitly notes:
Because we do not reach the merits, we express no view as to whether the Fifth Circuit correctly articulated the standard for when the Government transforms private conduct into state action.
All that means is that this issue is far from over. Others are going to try to bring similar cases, and eventually the Supreme Court is going to need to more clearly define the test beyond the Bantam Books case in 1963, which is a good ruling, but lacks clarity.
Perhaps in an ideal world, the Supreme Court would have given us a clear rule for determining where the line is between persuasion and coercion. But the majority recognized, correctly, that this is not the case in which to do that. The record is just so full of nonsense, and not a single plaintiff with clear standing. The larger issue will live on, and I’m sure in a year or three we’ll have another case on this issue. But for now, a sense of sanity has returned.
I’m not even going to get into the dissent from Alito, which Thomas and Gorsuch signed onto. It’s basically buying into the conspiracy theory and the wacky lower court rulings. This isn’t unexpected, especially from Alito, who tried desperately during the oral arguments to save Louisiana’s floundering Solicitor General (and just recently a former Alito clerk) who kept getting confused during the hearing.
But, thankfully, Alito couldn’t convince Kavanaugh, Barrett, or Roberts. Kavanaugh seemed to totally get it at the oral arguments, Barrett wrote this opinion, and Roberts similarly seemed perplexed at oral arguments.
And so the Supreme Court gets the basics right but punts some of the deeper issues for a later date. This means we’ll have more cases along these lines, but at least, now, one hopes that they will be focused on actual facts, not fever-dream conspiracy theories.
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.
“Do you now, or have you ever, worked with TikTok to help defend its rights?”
That McCarthyism-esque question is apparently being asked by members of Congress to organizations that have been working with TikTok to defend its Constitutional rights.
Does anyone think it’s right for Congress to threaten to punish organizations from working with TikTok? Does that sound like a First Amendment violation to you? Because it sure does to me.
Over the last year or so, we’ve been hearing a lot of talk out of Congress on two specific issues: the supposed horrors of government officials suppressing speech and, at the same time, the supposed horrors of a successful social media app that has ties to China.
Would it surprise you to find that there are some hypocrites in Congress about all of this? Shocking, I know.
We already highlighted how a bunch of members of Congress both signed an amicus brief in the Murthy case saying that governments should never, ever, interfere with speech and also voted to ban TikTok. But, would those same members of Congress who are so worried about “jawboning” by government officials to suppress speech also then use the power of Congress to silence voices trying to defend TikTok?
Yeah, you know where this is going.
NetChoice has been the main trade group that has been defending against all the terrible laws being thrust upon the internet over the last few years. Often people dismiss NetChoice as “big tech” or “the tech industry,” but in my experience they’ve been solidly standing up for good and important internet speech policies. NetChoice has been structured to be independent of its members (i.e., they get to decide what cases they take on, not their members, which sometimes means their members dislike the causes and cases NetChoice takes on).
On Wednesday of this week, NetChoice’s membership roster looked like this:
I highlighted TikTok in particular, because on Thursday, NetChoice’s membership roster looked like this:
TikTok is missing.
Why? Well, because members of Congress threatened to investigate NetChoice if it didn’t drop TikTok from its roster. Politico had some of this story last night, claiming that there was pressure from Congress to drop TikTok:
“The Select Committee’s brazen efforts to intimidate private organizations for associating with a company with 170 million American users is a clear abuse of power that smacks of McCarthyism,” TikTok spokesperson Alex Haurek said in a statement, referring to the House China panel. “It’s a sad day when Members of Congress single out individual companies without evidence while trampling on constitutional rights and the democratic process,” Haurek added. A spokesperson for NetChoice didn’t respond to a request for comment.
The two people told Daniel that NetChoice faced pressure from the office of House Majority Leader Steve Scalise (R-La.) to dump TikTok. A third person said that while no threat was made, NetChoice was told that the Select Committee on China would be investigating groups associated with TikTok and decided to sever ties as a result.
I’ve heard that the claim there was “no threat” is not accurate. As the rest of that paragraph makes clear, there was very much an implied threat that Congress would investigate organizations working with TikTok to defend its rights. I’m also hearing that others, like PR agencies and lobbying organizations that work with TikTok, are now facing similar threats from Congress.
Indeed, despite the “denial” of any threat, Politico gets the “House Select Committee on the CCP” to admit that it will launch an investigation into any organization that helps TikTok defend its rights:
“Significant bipartisan majorities in both the House and the Senate deemed TikTok a grave national security threat and the President signed a bill into law requiring them to divest from the CCP,” a Scalise spokesperson told PI. “It should not come as a surprise to those representing TikTok that as long as TikTok remains connected to the CCP, Congress will continue its rigorous oversight efforts to safeguard Americans from foreign threats.”
Guys, that’s not “rigorous oversight” or “safeguarding Americans.” That’s using the threats of bogus costly investigations to force companies to stop working with TikTok and helping it defend its rights under the Constitution. That seems to be a hell of a lot more like “jawboning” and a much bigger First Amendment problem than the Biden administration complaining publicly that they didn’t like how Facebook was handling COVID misinformation.
Remember, this is what the GOP Congressional folks said when they filed their amicus in the Murthy case:
Wielding threats of intervention, the executive branch of the federal government has engaged in a sustained effort to coerce private parties into censoring speech on matters of public concern. On issue after issue, the Biden Administration has distorted the free marketplace of ideas promised by the First Amendment, bringing the weight of federal authority to bear on any speech it dislikes
Isn’t that… exactly what these Congressional committees are now doing themselves? Except, much worse? Because the threats are much more direct, and the punitive nature of not obeying is even clearer and more directly tied to the speech at issue?
This sure seems to be exactly unconstitutional “jawboning.”
Whether or not you believe that there are real risks from China, it seems absolutely ridiculous that Congress is now basically following an authoritarian playbook, threatening companies for merely associating with and/or defending the rights of a company.
It undermines the principles of free speech and association, allowing governmental entities to dictate what organizations can and cannot support. This overreach of power directly chills advocacy efforts and hinders the protection of fundamental rights.
