5th Circuit Decides To Rehear Jawboning Case Involving Disinfo Researchers, Realizes It Can’t Do That Yet, Changes Mind Hours Later

Free Speech

from the the-weaponization-of-censorship dept

We’ve been covering the multi-pronged ridiculousness around the Missouri/Louisiana “jawboning” cases, regarding whether or not the White House was overstepping the bounds of the 1st Amendment and pressuring private websites to moderate in a manner they deemed appropriate.

Again, almost everything about this case is bizarre —and getting more bizarre with each move. Last night, the 5th Circuit made things dumber in a way that it probably couldn’t do (agreeing to rehear part of a case it had just decided weeks ago), and then this morning reversed itself because maybe someone realized that it couldn’t actually do that while the Supreme Court is already reviewing its decision from a few weeks ago. But it’s all still a mess and so very, very, very 5th Circuit.

First, the background:

The original theories in the case targeted the Biden administration for things that happened during the Trump administration (though it covers more than just that). The district court ruling, released on July 4th for some reason, is almost entirely disconnected from reality. It invents quotes that were not said to avoid the fact that the actual quotes say the opposite of what the judge pretends happened. It takes other quotes completely out of context to show “coercion” on content moderation decisions, even though those quotes had nothing to do with content moderation. And it banned a list of 10 activities, including the ability of the White House to communicate with disinformation researchers at universities.

We were much happier with the 5th Circuit ruling on appeal, though it still had a bunch of problems as well. It got rid of 9 out of the 10 prohibitions entirely, and greatly trimmed back the remaining prohibition, to basically just reiterate what the 1st Amendment already bars. At the same time, it cut out three entities from the prohibitions, saying that there was no evidence presented that they did anything coercive: CISA (the Cybersecurity and Infrastructure Security Agency), the State Department, and NIAID (the National Institute of Allergy and Infectious Diseases, which Anthony Fauci ran for years).

As we noted at the time, this was kind of hilarious, given that the conspiracy theorists who had filed the lawsuit kept insisting that CISA, the State Department, and Fauci were all at the center of the grand conspiracy to censor people on social media, and the 5th Circuit said “nope, nothing to see here.”

That’s not to say there weren’t problems with the 5th Circuit’s ruling. It continued to use completely out of context quotes. And (somewhat bizarrely) it includes a ton of quotes with no citations at all, so it’s impossible to see what the context is. It also makes no effort to distinguish between different social media sites, and seems to lump them all in together. The White House appealed, and as we speak the Supreme Court is considering whether or not the 5th Circuit’s injunction should go into effect or not (it’s currently on hold with an initial deadline for the Supreme Court to decide this past Friday, which Justice Alito extended until tomorrow).

Either way, the state (and their nonsense peddling co-plaintiffs) seem especially pissed that CISA was cut out of the case, as they’ve cooked up a completely alternate reality scenario in which disinformation researchers at a few universities — mainly the Stanford Internet Observatory and University of Washington — are somehow grand censors, determining what content gets pulled from social media.

I don’t know why I need to keep repeating this, but this has never ever been the case. The researchers are researchers studying the impact mis- and disinformation and how propagandistic information flows. This is useful. They have no power to censor literally anything. In the minds of some incredibly ignorant people, the programs set up by these schools, such as the Election Integrity Project or the Virality Project, are vast censorship machines. They are not. They were set up to have a single source for information sharing, which is a useful tool.

As we’ve explained ad nauseum, nothing in anything the Election Integrity Project did was about telling anyone to take down anything. The entire program was just so that people were aware of what content was being shared that might need responses from officials (things around voting date and place, etc). The proof that it had nothing to do with censorship is found in the fact that only 13% of the URLs that the EIP flagged were taken down. With 65% of the content flagged, the social media companies did literally nothing. With some, the content was “labeled.”

And even that data is distorted, because TikTok was super aggressive in pulling down lots of flagged content, meaning that for the other big sites (Facebook, Instagram, Twitter, YouTube, etc.), the amount of taken down content was likely well below 13%. On top of that, they found that those few cases where content was taken down were only in the most extreme cases, where it was just out and out fraud being pushed. Not a disagreement of opinion or political content.

I don’t know how many times it needs to be repeated, but this program was not about censorship. It had nothing to do with censorship, and was entirely about better information sharing and communications. This is a good thing.

But, the plaintiffs in this case can’t let go of the utter and complete fantasy that these researchers are government censors in disguise. So they asked the 5th Circuit to rehear the case, specifically the parts about CISA and the State Department working with researchers, again spinning fantasyland conspiracy theory nonsense:

CISA is directly involved in the EIP’s censorship activities. “CISA directs state and local officials to CIS and connected the CIS with the EIP because they were working on the same mission and wanted to be sure they were all connected.” ROA.26566 (Doc. 293, at 112). “CISA served as a mediating role between CIS and EIP to coordinate their efforts in reporting misinformation to social-media platforms, and there were direct email communications about reporting misinformation between EIP and CISA.” Id. “EIP identifies CISA as a ‘partner in government.’” Id. “The Government was listed as one of EIP’s Four Major Stakeholder Groups, which included CISA [and] the GEC.” Id. “CISA connected the CIS with the EIP because the EIP was working on the same mission,” i.e., censorship of election-related speech, “and it wanted to make sure they were all connected.” ROA.26525 (Doc. 293, at 71). “Therefore, CISA originated and set up collaborations between local government officials and CIS and between the EIP and CIS.” Id. “There were also direct email communications between the EIP and CISA about reporting misinformation.”

Again, none of that is nefarious when you understand how the EIP actually works, something that the nonsense peddlers bringing this lawsuit steadfastly refuse to learn about.

Indeed, the petition to rehear the case continues to push blatant falsehoods about the nature of the EIP. For example:

The EIP engages in mass surveillance of posts in real-time, reviewing hundreds of millions and tracking millions as potential “misinformation”: “The tickets and URLs encompassed millions of social-media posts, with almost twenty-two million posts on Twitter alone.”

This data point has been used repeatedly by nonsense peddlers to claim that the EIP reported 22 million posts to Twitter. That’s not true. The actual number was 2,890. The 22 million was the number of Twitter posts that the academic researchers studied after the election to see how disinformation, nonsense, and propaganda traveled over Twitter. It literally has nothing to do with content moderation at all, but is simply after-the-fact research looking at information on Twitter.

But, of course the 5th Circuit, in true 5th Circuit fashion, almost immediately said yes we’ll revisit this one good part of our ruling. It issued one of its favorite one line per curiam rulings to rehear this issue, meaning that we have to go through this bullshit all over again.

But… could it even do that? Especially when the Supreme Court is (as we speak) reviewing the existing 5th Circuit opinion? The answer is that it’s not supposed to do that, and it seems like an exasperated person at the 5th Circuit finally explained that to the out of control judges on the 5th Circuit this morning, because hours after last night’s one line “sure we’ll rehear it,” this morning the 5th Circuit issued a “wait, forget we said that” order, and let’s try this again:

That’s the court taking back its ruling from yesterday, which said they’d rehear the case (which they shouldn’t do at the moment the Supreme Court is already reviewing it), but instead “recalling” the mandate from September 11th. As for the request to rehear the case, rather than just agreeing to do so, it’s now asking the government parties in the case to respond to the states’ petition (which, you know, it should have done in the first place).

This is beyond amateur hour. It’s getting to the point where it’s reasonable to ask if anyone at the 5th Circuit even knows how anything works?

And the most annoying thing about all of this is that this is the real attack on the 1st Amendment. This whole fucking effort between the Attorneys General of Louisiana and Missouri (with a helping hand from Rep. Jim Jordan in the House) is serving to stifle the 1st Amendment rights of these academic researchers (who again, are not involved in anything even remotely connected to “censorship.”)

The Washington Post has a detailed article on how these lawsuits (and Jordan’s witch hunts) are basically making it impossible for academic researchers to keep studying misinformation. Their efforts are trampling on the 1st Amendment rights of these academics, and no one seems willing to speak up for their rights.

The National Institutes of Health froze a $150 million program intended to advance the communication of medical information, citing regulatory and legal threats. Physicians told The Post that they had planned to use the grants to fund projects on noncontroversial topics such as nutritional guidelines and not just politically charged issues such as vaccinations that have been the focus of the conservativeallegations.

NIH officials sent a memo in July to some employees, warning them not to flag misleading social media posts to tech companies and to limit their communication with the public to answering medical questions.

Honestly, Jordan and Missouri and Louisiana are conducting one of the most successful government censorship campaigns around, and they’re doing so by falsely claiming that they’re trying to defend the 1st Amendment and stop the weaponization of government to censor. The reality is the exact opposite.

“In the name of protecting free speech, the scientific community is not allowed to speak,” said Dean Schillinger,a health communication scientist who planned to apply to the NIH program to collaborate with a Tagalog-language newspaper to share accurate health information with Filipinos. “Science is being halted in its tracks.”

It of course should not go unnoticed that those pushing these campaigns all happen to be top GOP officials who clearly benefit from blocking the studying of disinformation — much of which seems to come from their own party and party leadership. Suppressing such research allows them to lie with impunity.

This is extremely frustrating for a variety of reasons, not the least of which is that this kind of research is incredibly important in enabling more free speech, and figuring out how counterspeech works in the so-called “marketplace of ideas.” What’s clear is that the plaintiffs in this case, along with Jim Jordan, were losing in the marketplace of ideas, and their response is to completely turn everything upside down, arguing that research and counterspeech is censorship (it’s not, it’s speech) and then getting the government to block it.

It’s a huge attack on the 1st Amendment, and it’s ridiculous that no one is reporting on it as such. And now, while we avoided disaster with the last 5th Circuit ruling, the court’s willingness to reopen this issue should be a concern to everyone — especially given how frequently the 5th Circuit has shown that it only believes Republicans deserve free speech rights, while everyone else can have their speech suppressed freely.

Filed Under: 1st amendment, 5th circuit, disinformation, eip, election integrity project, free speech, jim jordan, louisiana, marketplace of ideas, missouri, missouri v. biden, research, stanford internet observatory
Companies: stanford

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

Free Speech

from the jawboning-the-supreme-court dept

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This is all correct.

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

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

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

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

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

Filed Under: biden administration, jawboning, joe biden, louisiana, missouri, supreme court, vivek murthy

Supreme Court Puts 5th Circuit Ruling On Biden Admin Jawboning Of Social Media Companies On Hold For Shadow Docket Review

Free Speech

from the jawboning-at-the-supreme-court dept

So, last Friday, the 5th Circuit released its opinion in the appeal of an absolutely ridiculous Louisiana federal court ruling that insisted large parts of the federal government were engaged in some widespread censorial conspiracy with social media, and barred large parts of the government from talking to social media companies and even academic researchers.

The 5th Circuit massively trimmed back the district court’s injunction, throwing out 9 of the 10 listed “prohibitions,” removing a bunch of the defendants, including CISA and Anthony Fauci’s NIAID, noting that there was no evidence they had done anything improper, and taking the one remaining prohibition, and basically chopping it back to be close to meaningless (basically “don’t coerce the companies.”)

I thought the 5th Circuit was right to use the tests that the 2nd and 9th Circuits used for “coercion,” but found the actual application of those tests to be… at best weird, and at worst potentially extremely problematic (especially in the case of the CDC defendant, where the ruling made no sense at all). That confused application of the facts to the test at hand presented a challenge for the administration, as it arguably provided zero useful guidance for the administration on how to not violate the injunction. And that’s because the court really laid out no clear way of applying the test that was coherent or understandable. It kinda made stuff up as it went along and said “that’s coercion,” even though it wasn’t clear what was actually coercive.

Even when the 5th Circuit highlighted, for example, quotes from the administration to social media companies, it never provided the context or details. In fact, it would provide tiny fragments (a few word phrases) without any indication of who said what, what websites in particular they were talking about, and what it actually meant in context. And that was a real problem, especially as the lower court took many quotes so out of context as to reverse their meaning (and in one case, added in words to make a quote say the opposite of what it really said).

That said, I still wondered if the Biden administration would actually ask the Supreme Court to review it, because the final ruling was pretty limited in scope, and there’s a real risk that this Supreme Court, which has become so political in nature, would make a decision that was much, much worse and much, much more problematic for the administration.

Apparently, the White House felt differently, and they’ve rushed to the Supreme Court to ask the Supreme Court to review things on the shadow docket. Justice Alito has now put a stay on the injunctions and asked for filings by this coming Wednesday to review the issue.

The White House’s application is worth reading. First, they challenge the standing of the plaintiffs in the case (five people who were moderated on social media, along with the states Louisiana and Missouri). The White House notes that even if you argue that the individuals who were moderated have standing, they faced moderation before the White House said anything (i.e., it was independent decisions by the companies):

The Fifth Circuit held that they have standing because their posts have been moderated by social-media platforms. But respondents failed to show that those actions were fairly traceable to the government or redressable by injunctive relief. To the contrary, respondents’ asserted instances of moderation largely occurred before the allegedly unlawful government actions. The Fifth Circuit also held that the state respondents have standing because they have a “right to listen” to their citizens on social media. App., infra, 204a. But the court cited no precedent for that boundless theory, which would allow any state or local government to challenge any alleged violation of any constituent’s right to speak.

The larger point, though, is the 1st Amendment arguments regarding the jawboning questions, with the White House pointing out that these rulings take away the government’s bully pulpit, where it is allowed to advocate for positions, it just can’t threaten or punish people for their speech:

Second, the Fifth Circuit’s decision contradicts fundamental First Amendment principles. It is axiomatic that the government is entitled to provide the public with information and to “advocate and defend its own policies.” Board of Regents v. Southworth, 529 U.S. 217, 229 (2000). A central dimension of presidential power is the use of the Office’s bully pulpit to seek to persuade Americans — and American companies — to act in ways that the President believes would advance the public interest. President Kennedy famously persuaded steel companies to rescind a price increase by accusing them of “ruthless[ly] disregard[ing]” their “public responsibilities.” John F. Kennedy Presidential Library & Museum, News Conference 30 (Apr. 11, 1962), perma.cc/M7DL-LZ7N. President Bush decried “irresponsible” subprime lenders that shirked their “responsibility to help” distressed homeowners. The White House, President Bush Discusses Homeownership Financing (Aug. 31, 2007), perma.cc/DQ8B-JWN4. And every President has engaged with the press to promote his policies and shape coverage of his Administration. See, e.g., Graham J. White, FDR and the Press (1979).

Of course, the government cannot punish people for expressing different views. Nor can it threaten to punish the media or other intermediaries for disseminating disfavored speech. But there is a fundamental distinction between persuasion and coercion. And courts must take care to maintain that distinction because of the drastic consequences resulting from a finding of coercion: If the government coerces a private party to act, that party is a state actor subject “to the constraints of the First Amendment.” Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1933 (2019). And this Court has warned against expansive theories of state action that would “eviscerate” private entities’ “rights to exercise editorial control over speech and speakers on their properties or platforms.” Id. at 1932.

The Fifth Circuit ignored those principles. It held that officials from the White House, the Surgeon General’s office, and the FBI coerced social-media platforms to remove content despite the absence of even a single instance in which an official paired a request to remove content with a threat of adverse action — and despite the fact that the platforms declined the officials’ requests routinely and without consequence. Indeed, the Fifth Circuit suggested that any request from the FBI is inherently coercive merely because the FBI is a powerful law enforcement agency. And the court held that the White House, the FBI, and the CDC “significantly encouraged” the platforms’ content-moderation decisions — and thus transformed those decisions into state action — on the theory that officials were “entangled” in the platforms’ decisions. App., infra, 235a. The court did not define that novel standard, but found it satisfied primarily because platforms requested and relied upon CDC’s guidance on matters of public health.

Of course, this is the entire debate about jawboning in a nutshell. Where is the line between persuasion and coercion? The White House is correct that the 5th Circuit’s ruling doesn’t lay out a clear test or application, and leaves things muddled, but part of the problem is that where that line is has always been kinda muddled.

And I’m not at all sure that this Supreme Court will properly construe that line.

However, as the White House notes (and I would agree) the discussion with regards to the CDC in particular is kind of unworkable:

The implications of the Fifth Circuit’s holdings are startling. The court imposed unprecedented limits on the ability of the President’s closest aides to use the bully pulpit to address matters of public concern, on the FBI’s ability to address threats to the Nation’s security, and on the CDC’s ability to relay publichealth information at platforms’ request. And the Fifth Circuit’s holding that platforms’ content-moderation decisions are state action would subject those private actions to First Amendment constraints — a radical extension of the state-action doctrine

The White House also points out that the unclear nature of the remaining injunction creates a burden on federal government employees:

Third, the lower courts’ injunction violates traditional equitable principles. An injunction must “be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979). Here, however, the injunction sweeps far beyond what is necessary to address any cognizable harm to respondents: Although the district court declined to certify a class, the injunction covers the government’s communications with all social-media platforms (not just those used by respondents) regarding all posts by any person (not just respondents) on all topics. And it forces thousands of government officials and employees to choose between curtailing their interactions with (and public statements about) social-media platforms or risking contempt should the district court conclude that they ran afoul of the Fifth Circuit’s novel and ill-defined concepts of coercion and significant encouragement.

I don’t necessarily disagree with any of that. The ruling (mainly in how it applies the test for coercion) is a mess, and the final injunction (while massively slimmed down from the lower court’s) is confusing and unclear.

But, still, given how much of a partisan political football this is, I can easily see the Supreme Court making things way, way worse.

It looks like there will be quick turnaround on the shadow docket issue that I’m guessing may lead to a further stay of the injunction, as the White House said it intends to file for a full normal cert petition in October, allowing the Supreme Court to hear the full case this term. So it would be easy for Alito to stay the injunction until the case is fully briefed and heard.

Again, I get where the White House is coming from. The 5th Circuit ruling has real issues, but it struck me as way less damaging than whatever else might come out of this process. But, I guess, in the long run, it’s better to have a full ruling on this issue from the Supreme Court. I’m just scared of what this particular Supreme Court will say.

Filed Under: 1st amendment, 5th circuit, biden administration, bully pulpit, cdc, coercion, fbi, free speech, jawboning, louisiana, missouri, persuasion, vivek murthy, white house

5th Circuit Cleans Up District Court’s Silly Jawboning Ruling About the Biden Admin, Trims It Down To More Accurately Reflect The 1st Amendment

Content Moderation

from the that's-much-better dept

We’re going to go slow on this one, because there’s a lot of background and details and nuance to get into in Friday’s 5th Circuit appeals court ruling in the Missouri v. Biden case that initially resulted in a batshit crazy 4th of July ruling regarding the US government “jawboning” social media companies. The reporting on the 5th Circuit ruling has been kinda atrocious, perhaps because the end result of the ruling is this:

The district court’s judgment is AFFIRMED with respect to the White House, the Surgeon General, the CDC, and the FBI, and REVERSED as to all other officials. The preliminary injunction is VACATED except for prohibition number six, which is MODIFIED as set forth herein. The Appellants’ motion for a stay pending appeal is DENIED as moot. The Appellants’ request to extend the administrative stay for ten days following the date hereof pending an application to the Supreme Court of the United States is GRANTED, and the matter is STAYED.

Affirmed, reversed, vacated, modified, denied, granted, and stayed. All in one. There’s… a lot going on in there, and a lot of reporters aren’t familiar enough with the details, the history, or the law to figure out what’s going on. Thus, they report just on the bottom line, which is that the court is still limiting the White House. But it’s at a much, much, much lower level than the district court did, and this time it’s way more consistent with the 1st Amendment.

The real summary is this: the appeals court ditched nine out of the ten “prohibitions” that the district court put on the government, and massively narrowed the only remaining one, bringing it down to a reasonable level (telling the U.S. government that it cannot coerce social media companies, which, uh, yes, that’s exactly correct).

But then in applying its own (perhaps surprisingly, very good) analysis, the 5th Circuit did so in a slightly weird way. And then also seems to contradict the [checks notes] 5th Circuit in a different case. But we’ll get to that in another post.

Much of the reporting on this suggests it was a big loss for the Biden administration. The reality is that it’s a mostly appropriate slap on the wrist that hopefully will keep the administration from straying too close to the 1st Amendment line again. It basically threw out 9.5 out of 10 “prohibitions” placed by the lower court, and even on the half a prohibition it left, it said it didn’t apply to the parts of the government that the GOP keeps insisting were the centerpieces of the giant conspiracy they made up in their minds. The court finds that CISA, Anthony Fauci’s NIAID, and the State Department did not do anything wrong and are no longer subject to any prohibitions.

The details: the state Attorneys General of Missouri and Louisiana sued the Biden administration with some bizarrely stupid theories about the government forcing websites to take down content they disagreed with. The case was brought in a federal court district with a single Trump-appointed judge. The case was allowed to move forward by that judge, turning it into a giant fishing expedition into all sorts of government communications to the social media companies, which were then presented to the judge out of context and in a misleading manner. The original nonsense theories were mostly discarded (because they were nonsense), but by quoting some emails out of context, the states (and a few nonsense peddlers they added as plaintiffs to have standing), were able to convince the judges that something bad was going on.

As we noted in our analysis of the original ruling, they did turn up a few questionable emails from White House officials who were stupidly trying to act tough about disinformation on social media. But even then, things were taken out of context. For example, I highlighted this quote from the original ruling and called it out as obviously inappropriate by the White House:

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

Except… if you look at it in context, the email has nothing to do with content moderation. The White House had noticed that the @potus Instagram account was having some issues, and Meta told the company that “the technical issues that had been affecting follower growth on @potus have been resolved.” A WH person received this and asked for more details. Meta responded with “it was an internal technical issue that we can’t get into, but it’s now resolved and should not happen again.” Someone then cc’d Rob Flaherty, and the quote above was in response to that. That is, it was about a technical issue that had prevented the @potus account from getting more followers, and he wanted details about how that happened.

So… look, I’d still argue that Flaherty was totally out of line here, and his response was entirely inappropriate from a professional standpoint. But it had literally nothing to do with content moderation issues or pressuring the company to remove disinformation. So it’s hard to see how it was a 1st Amendment violation. Yet, Judge Terry Doughty presented it in his ruling as if that line was about the removal of COVID disinfo. It is true that Flaherty had, months earlier, asked Facebook for more details about how the company was handling COVID disinfo, but those messages do not come across as threatening in any way, just asking for info.

The only way to make them seem threatening was to then include Flaherty’s angry message from months later, eliding entirely what it was about, and pretending that it was actually a continuation of the earlier conversation about COVID disinfo. Except that it wasn’t. Did Doughty not know this? Or did he pretend? I have no idea.

Doughty somehow framed this and a few other questionably out of context things as “a far-reaching and widespread censorship campaign.” As we noted in our original post, he literally inserted words that did not exist in a quote by Renee DiResta to make this argument. He claimed the following:

According to DiResta, the EIP was designed to “get around unclear legal authorities, including very real First Amendment questions” that would arise if CISA or other government agencies were to monitor and flag information for censorship on social media.

Except, if you read DiResta’s quote, “get around” does not actually show up anywhere. Doughty just added that out of thin air, which makes me think that perhaps he also knew he was misrepresenting the context of Flaherty’s comment.

Either way, Doughty’s quote from DiResta is a judicial fiction. He inserted words she never used to change the meaning of what was said. What DiResta is actually saying is that they set up EIP as a way to help facilitate information sharing, not to “get around” the “very real First Amendment questions,” and also not to encourage removal of information, but to help social media companies and governments counter and respond to disinformation around elections (which they did for things like misleading election procedures). That is, the quote here is about respecting the 1st Amendment, not “getting around” it. Yet, Doughty added “get around” to pretend otherwise.

He then issued a wide-ranging list of 10 prohibitions that were so broad I heard from multiple people within tech companies that the federal government canceled meetings with them on important cybersecurity issues, because they were afraid that any such meeting might violate the injunction.

So the DOJ appealed, and the case went to the 5th Circuit, which has a history of going… nutty. However, this ruling is mostly not nutty. It’s actually a very thorough and careful analysis of the standards for when the government steps over over the line in violating the 1st Amendment rights by pressuring speech suppression. As we’ve detailed for years, the line is whether or not the government was being coercive. The government is very much allowed to use its own voice to persuade. But when it is coercive, it steps over the line.

The appeals court analysis on this is very thorough and right on, as it borrows the important and useful precedents from other circuits that we’ve talked about for years, agreeing with all of them. Where is the line between persuasion and coercion?

Next, we take coercion—a separate and distinct means of satisfying the close nexus test. Generally speaking, if the government compels the private party’s decision, the result will be considered a state action. Blum, 457 U.S. at 1004. So, what is coercion? We know that simply “being regulated by the State does not make one a state actor.” Halleck, 139 S. Ct. at 1932. Coercion, too, must be something more. But, distinguishing coercion from persuasion is a more nuanced task than doing the same for encouragement. Encouragement is evidenced by an exercise of active, meaningful control, whether by entanglement in the party’s decision-making process or direct involvement in carrying out the decision itself. Therefore, it may be more noticeable and, consequently, more distinguishable from persuasion. Coercion, on the other hand, may be more subtle. After all, the state may advocate—even forcefully—on behalf of its positions

It points to the key case that all of these cases always lead back to, the important Bantam Books v. Sullivan case that is generally seen as the original case on “jawboning” (government coercion to suppress speech):

That is not to say that coercion is always difficult to identify. Sometimes, coercion is obvious. Take Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963). There, the Rhode Island Commission to Encourage Morality—a state-created entity—sought to stop the distribution of obscene books to kids. Id. at 59. So, it sent a letter to a book distributor with a list of verboten books and requested that they be taken off the shelves. Id. at 61–64. That request conveniently noted that compliance would “eliminate the necessity of our recommending prosecution to the Attorney General’s department.” Id. at 62 n.5. Per the Commission’s request, police officers followed up to make sure the books were removed. Id. at 68. The Court concluded that this “system of informal censorship,” which was “clearly [meant] to intimidate” the recipients through “threat of [] legal sanctions and other means of coercion” rendered the distributors’ decision to remove the books a state action. Id. at 64, 67, 71–72. Given Bantam Books, not-so subtle asks accompanied by a “system” of pressure (e.g., threats and followups) are clearly coercive.

But, the panel notes, that level of coercion is not always present, but it doesn’t mean that other actions aren’t more subtly coercive. Since the 5th Circuit doesn’t currently have a test for figuring out if speech is coercive, it adopts the same tests that were recently used in the 2nd Circuit with the NRA v. Vullo case, where the NRA went after a NY state official who encouraged insurance companies to reconsider issuing NRA-endorsed insurance policies. The 2nd Circuit ran through a test and found that this urging was an attempt at persuasion and not coercive. The 5th Circuit also cites the 9th Circuit, which even more recently tossed out a case claiming that Elizabeth Warren’s comments to Amazon regarding an anti-vaxxer’s book were coercive, ruling they were merely an attempt to persuade. Both cases take a pretty thoughtful approach to determining where the line is, so it’s good to see the 5th Circuit adopt a similar test.

For coercion, we ask if the government compelled the decision by, through threats or otherwise, intimating that some form of punishment will follow a failure to comply. Vullo, 49 F.4th at 715. Sometimes, that is obvious from the facts. See, e.g., Bantam Books, 372 U.S. at 62–63 (a mafiosi-style threat of referral to the Attorney General accompanied with persistent pressure and follow-ups). But, more often, it is not. So, to help distinguish permissible persuasion from impermissible coercion, we turn to the Second (and Ninth) Circuit’s four-factor test. Again, honing in on whether the government “intimat[ed] that some form of punishment” will follow a “failure to accede,” we parse the speaker’s messages to assess the (1) word choice and tone, including the overall “tenor” of the parties’ relationship; (2) the recipient’s perception; (3) the presence of authority, which includes whether it is reasonable to fear retaliation; and (4) whether the speaker refers to adverse consequences. Vullo, 49 F.4th at 715; see also Warren, 66 F.4th at 1207.

So, the 5th Circuit adopts a strong test to say when a government employee oversteps the line, and then looks to apply it. I’m a little surprised that the court then finds that some defendants probably did cross that line, mainly the White House and the Surgeon General’s office. I’m not completely surprised by this, as it did appear that both had certainly walked way too close to the line, and we had called out the White House for stupidly doing so. But… if that’s the case, the 5th Circuit should really show how they did so, and it does not do a very good job. It admits that the White House and the Surgeon General are free to talk to platforms about misinformation and even to advocate for positions:

Generally speaking, officials from the White House and the Surgeon General’s office had extensive, organized communications with platforms. They met regularly, traded information and reports, and worked together on a wide range of efforts. That working relationship was, at times, sweeping. Still, those facts alone likely are not problematic from a First-Amendment perspective.

So where does it go over the line? When the White House threatened to hit the companies with Section 230 reform if they didn’t clean up their sites! The ruling notes that even pressuring companies to remove content in strong language might not cross the line. But threatening regulatory reforms could:

That alone may be enough for us to find coercion. Like in Bantam Books, the officials here set about to force the platforms to remove metaphorical books from their shelves. It is uncontested that, between the White House and the Surgeon General’s office, government officials asked the platforms to remove undesirable posts and users from their platforms, sent follow-up messages of condemnation when they did not, and publicly called on the platforms to act. When the officials’ demands were not met, the platforms received promises of legal regime changes, enforcement actions, and other unspoken threats. That was likely coercive

Still… here the ruling is kinda weak. The panel notes that even with what’s said above the “officials’ demeanor” matters, and that includes their “tone.” To show that the tone was “threatening,” the panel… again quotes Flaherty’s demand for answers “immediately,” repeating Doughty’s false idea that that comment was about content moderation. It was not. The court does cite to some other “tone” issues, but again provides no context for them, and I’m not going to track down every single one.

Next, the court says we can tell that the White House’s statements were coercive because: “When officials asked for content to be removed, the platforms took it down.” Except, as we’ve reported before, that’s just not true. The transparency reports from the companies show how they regularly ignored requests from the government. And the EIP reporting system that was at the center of the lawsuit, and which many have insisted was the smoking gun, showed that the tech companies “took action” on only 35% of items. And even that number is too high, because TikTok was the most aggressive company covered, and they took action on 64% of reported URLs, meaning Facebook, Twitter, etc., took action on way less than 35%. And even that exaggerates the amount of influence because “take action” did not just mean “take down.” Indeed, the report said that only 13% of reported content was “removed.”

So, um, how does the 5th Circuit claim that “when officials asked for content to be removed, the platforms took it down”? The data simply doesn’t support that claim, unless they’re talking about some other set of requests.

One area where the court does make some good points is calling out — as we ourselves did — just how stupid it was for Joe Biden to claim that the websites were “killing people.” Of course, the court leaves out that three days later, Biden himself admitted that his original words were too strong, and that “Facebook isn’t killing people.” Somehow, only the first quote (which was admittedly stupid and wrong) makes it into the 5th Circuit opinion:

Here, the officials made express threats and, at the very least, leaned into the inherent authority of the President’s office. The officials made inflammatory accusations, such as saying that the platforms were “poison[ing]” the public, and “killing people.”

So… I’m a bit torn here. I wasn’t happy with the White House making these statements and said so at the time. But they didn’t strike me as anywhere near going over the coercive line. This court sees it differently, but seems to take a lot of commentary out of context to do so.

The concern about the FBI is similar. The court seems to read things totally out of context:

Fourth, the platforms clearly perceived the FBI’s messages as threats. For example, right before the 2022 congressional election, the FBI warned the platforms of “hack and dump” operations from “state-sponsored actors” that would spread misinformation through their sites. In doing so, the FBI officials leaned into their inherent authority. So, the platforms reacted as expected—by taking down content, including posts and accounts that originated from the United States, in direct compliance with the request.

But… that is not how anyone has described those discussions. I’ve seen multiple transcripts and interviews of people at the platforms who were in the meetings where “hack and dump” were discussed, and the tenor was more “be aware of this, as it may come from a foreign effort to spread disinfo about the election,” coming with no threat or coercion — just simply “be on the lookout” for this. It’s classic information sharing.

And the platforms had reason to be on the lookout for such things anyway. If the FBI came to Twitter and said “we’ve learned of a zero day hack that can allow hackers into your back end,” and Twitter responded by properly locking down their systems… would that be Twitter “perceiving the messages as threats,” or Twitter taking useful information from the FBI and acting accordingly? Everything I’ve seen suggests the latter.

Even stranger is the claim that the CDC was coercive. The CDC has literally zero power over the platforms. It has no regulatory power over them and now law enforcement power. So I can’t see how it was coercive at all. Here, the 5th Circuit just kinda wings it. After admitting that the CDC lacked any sort of power over the sites, it basically says “but the sites relied on info from the CDC, so it must have been coercive.”

Specifically, CDC officials directly impacted the platforms’ moderation policies. For example, in meetings with the CDC, the platforms actively sought to “get into [] policy stuff” and run their moderation policies by the CDC to determine whether the platforms’ standards were “in the right place.” Ultimately, the platforms came to heavily rely on the CDC. They adopted rule changes meant to implement the CDC’s guidance. As one platform said, they “were able to make [changes to the ‘misinfo policies’] based on the conversation [they] had last week with the CDC,” and they “immediately updated [their] policies globally” following another meeting. And, those adoptions led the platforms to make moderation decisions based entirely on the CDC’s say-so—“[t]here are several claims that we will be able to remove as soon as the CDC debunks them; until then, we are unable to remove them.” That dependence, at times, was total. For example, one platform asked the CDC how it should approach certain content and even asked the CDC to double check and proofread its proposed labels.

So… one interpretation of that is that the CDC was controlling site moderation practices. But another, more charitable (and frankly, from conversations I’ve had, way more accurate) interpretation was that we were in the middle of a fucking pandemic where there was no good info, and many websites decided (correctly) that they didn’t have epidemiologists on staff, and therefore it made sense to ask the experts what information was legit and what was not, based on what they knew at the time.

Note that in the paragraph above, the one that the 5th Circuit uses to claim that the platform polices were controlled by the CDC, it admits that the sites were reaching out to the CDC themselves, asking them for info. That… doesn’t sound coercive. That sounds like trust & safety teams recognizing that they’re not the experts in a very serious and rapidly changing crisis… and asking the experts.

Now, there were perhaps reasons that websites should have been less willing to just go with the CDC’s recommendations, but would you rather ask expert epidemiologists, or the team who most recently was trying to stop spam on your platform? It seems, kinda logical to ask the CDC, and wait until they confirmed that something was false before taking action. But alas.

Still, even with those three parts of the administration being deemed as crossing the line, most of the rest of the opinion is good. Despite all of the nonsense conspiracy theories about CISA, which were at the center of the case according to many, the 5th Circuit finds no evidence of any coercion there, and releases them from any of the restrictions.

Finally, although CISA flagged content for social-media platforms as part of its switchboarding operations, based on this record, its conduct falls on the “attempts to convince,” not “attempts to coerce,” side of the line. See Okwedy, 333 F.3d at 344; O’Handley, 62 F.4th at 1158. There is not sufficient evidence that CISA made threats of adverse consequences— explicit or implicit—to the platforms for refusing to act on the content it flagged. See Warren, 66 F.4th at 1208–11 (finding that senator’s communication was a “request rather than a command” where it did not “suggest[] that compliance was the only realistic option” or reference potential “adverse consequences”). Nor is there any indication CISA had power over the platforms in any capacity, or that their requests were threatening in tone or manner. Similarly, on this record, their requests— although certainly amounting to a non-trivial level of involvement—do not equate to meaningful control. There is no plain evidence that content was actually moderated per CISA’s requests or that any such moderation was done subject to non-independent standards.

Ditto for Fauci’s NIAID and the State Department (both of which were part of nonsense conspiracy theories). The Court says they didn’t cross the line either.

So I think the test the 5th Circuit used is correct (and matches other circuits). I find its application of the test to the White House kinda questionable, but it actually doesn’t bother me that much. With the FBI, the justification seems really weak, but frankly, the FBI should not be involved in any content moderation issues anyway, so… not a huge deal. The CDC part is the only part that seems super ridiculous as opposed to just borderline.

But saying CISA, NIAID and the State Department didn’t cross the line is good to see.

And then, even for the parts the court said did cross the line, the 5th Circuit so incredibly waters down the injunction from the massive, overbroad list of 10 “prohibited activities,” that… I don’t mind it. The court immediately kicks out 9 out of the 10 prohibited activities:

The preliminary injunction here is both vague and broader than necessary to remedy the Plaintiffs’ injuries, as shown at this preliminary juncture. As an initial matter, it is axiomatic that an injunction is overbroad if it enjoins a defendant from engaging in legal conduct. Nine of the preliminary injunction’s ten prohibitions risk doing just that. Moreover, many of the provisions are duplicative of each other and thus unnecessary.

Prohibitions one, two, three, four, five, and seven prohibit the officials from engaging in, essentially, any action “for the purpose of urging, encouraging, pressuring, or inducing” content moderation. But “urging, encouraging, pressuring” or even “inducing” action does not violate the Constitution unless and until such conduct crosses the line into coercion or significant encouragement. Compare Walker, 576 U.S. at 208 (“[A]s a general matter, when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position.”), Finley, 524 U.S. at 598 (Scalia, J., concurring in judgment) (“It is the very business of government to favor and disfavor points of view . . . .”), and Vullo, 49 F.4th at 717 (holding statements “encouraging” companies to evaluate risk of doing business with the plaintiff did not violate the Constitution where the statements did not “intimate that some form of punishment or adverse regulatory action would follow the failure to accede to the request”), with Blum, 457 U.S. at 1004, and O’Handley, 62 F.4th at 1158 (“In deciding whether the government may urge a private party to remove (or refrain from engaging in) protected speech, we have drawn a sharp distinction between attempts to convince and attempts to coerce.”). These provisions also tend to overlap with each other, barring various actions that may cross the line into coercion. There is no need to try to spell out every activity that the government could possibly engage in that may run afoul of the Plaintiffs’ First Amendment rights as long the unlawful conduct is prohibited.

The eighth, ninth, and tenth provisions likewise may be unnecessary to ensure Plaintiffs’ relief. A government actor generally does not violate the First Amendment by simply “following up with social-media companies” about content-moderation, “requesting content reports from social-media companies” concerning their content-moderation, or asking social media companies to “Be on The Lookout” for certain posts.23 Plaintiffs have not carried their burden to show that these activities must be enjoined to afford Plaintiffs full relief.

The 5th Circuit, thankfully, calls for an extra special smackdown Judge Doughty’s ridiculous prohibition on any officials collaborating with the researchers at Stanford and the University of Washington who study disinformation, noting that this prohibition itself likely violates the 1st Amendment:

Finally, the fifth prohibition—which bars the officials from “collaborating, coordinating, partnering, switchboarding, and/or jointly working with the Election Integrity Partnership, the Virality Project, the Stanford Internet Observatory, or any like project or group” to engage in the same activities the officials are proscribed from doing on their own— may implicate private, third-party actors that are not parties in this case and that may be entitled to their own First Amendment protections. Because the provision fails to identify the specific parties that are subject to the prohibitions, see Scott, 826 F.3d at 209, 213, and “exceeds the scope of the parties’ presentation,” OCA-Greater Houston v. Texas, 867 F.3d 604, 616 (5th Cir. 2017), Plaintiffs have not shown that the inclusion of these third parties is necessary to remedy their injury. So, this provision cannot stand at this juncture

That leaves just a single prohibition. Prohibition six, which barred “threatening, pressuring, or coercing social-media companies in any manner to remove, delete, suppress, or reduce posted content of postings containing protected free speech.” But, the court rightly notes that even that one remaining prohibition clearly goes too far and would suppress protected speech, and thus cuts it back even further:

That leaves provision six, which bars the officials from “threatening, pressuring, or coercing social-media companies in any manner to remove, delete, suppress, or reduce posted content of postings containing protected free speech.” But, those terms could also capture otherwise legal speech. So, the injunction’s language must be further tailored to exclusively target illegal conduct and provide the officials with additional guidance or instruction on what behavior is prohibited.

So, the 5th Circuit changes that one prohibition to be significantly limited. The new version reads:

Defendants, and their employees and agents, shall take no actions, formal or informal, directly or indirectly, to coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech. That includes, but is not limited to, compelling the platforms to act, such as by intimating that some form of punishment will follow a failure to comply with any request, or supervising, directing, or otherwise meaningfully controlling the social-media companies’ decision-making processes.

And that’s… good? I mean, it’s really good. It’s basically restating exactly what all the courts have been saying all along: the government can’t coerce companies regarding their content moderation practices.

The court also makes it clear that CISA, NIAID, and the State Department are excluded from this injunction, though I’d argue that the 1st Amendment already precludes the behavior in that injunction anyway, so they already can’t do those things (and there remains no evidence that they did).

So to summarize all of this, I’d argue that the 5th Circuit got this mostly right, and corrected most of the long list of terrible things that Judge Doughty put in his original opinion and injunction. The only aspect that’s a little wonky is that it feels like the 5th Circuit applied the test for coercion in a weird way with regards to the White House, the FBI, and the CDC, often by taking things dramatically out of context.

But the “harm” of that somewhat wonky application of the test is basically non-existent, because the court also wiped out all of the problematic prohibitions in the original injunction, leaving only one, which it then modified to basically restate the crux of the 1st Amendment: the government should not coerce companies in their moderation practices. Which is something that I agree with, and which hopefully will teach the Biden administration to stop inching up towards the line of threats and coercion.

That said, this also seems to wholly contradict the very same 5th Circuit’s decision in the NetChoice v. Paxton case, but that’s the subject of my next post. As for this case, I guess it’s possible that either side could seek Supreme Court review. It would be stupid for the DOJ to do so, as this ruling gives them almost everything they really wanted, and the probability that the current Supreme Court could fuck this all up seems… decently high. That said, the plaintiffs might want to ask the Supreme Court to review for just this reason (though, of course, that only reinforces the idea that the headlines that claimed this ruling was a “loss” for the Biden admin are incredibly misleading).

Filed Under: 1st amendment, 5th circuit, biden administration, cisa, coercion, context, jawboning, joe biden, louisiana, missouri, persuasion, pressure, rob flaherty, section 230, state department, terry doughty, threats, white house

Fifth Circuit Denies Immunity To Detective Who Arrested A Man For A Satirical Facebook Post

Free Speech

from the just-because-you're-not-laughing-doesn't-mean-it's-not-a-joke dept

Law enforcement officers just don’t seem to have a sense of humor. Sure, they may laugh when they beat, humiliate, or otherwise violates citizens’ rights, but they can’t seem to take a joke when it’s pointed in their direction.

Not being able to recognize an obvious joke has ensured two members of the Rapides Parish (Louisiana) Sheriff’s Department will have to face the lawsuit brought by Waylon Bailey, who was arrested for an obvious joke he posted to Facebook.

Here’s the post that got Bailey arrested, and now has forced Detective Randell Iles and Sheriff Mark Wood to return to court following the stripping of their qualified immunity. From the Fifth Circuit Appeals Court decision [PDF]:

Bailey lives in Rapides Parish in central Louisiana. On March 20,2020—during the first month of the COVID-19 pandemic—he posted thison Facebook:

Bailey intended the post as a joke and did not intend to scare anyone. The “hashtag” “#weneedyoubradpitt” referenced the zombie movie World War Z, starring Brad Pitt. Bailey included the hashtag to “bring light to the fact that it was a joke.” He was bored during the COVID-19 lockdown and used Facebook to keep in touch with friends and “make light of the situation.”

In case you can’t see or read the embed, Bailey’s post says this:

SHARE SHARE SHARE ! ! ! !
JUST IN: RAPIDES PARISH SHERIFFS OFFICE HAVE ISSUED THE ORDER, IF DEPUTIES COME INTO CONTACT WITH “THE INFECTED” SHOOT ON SIGHT….Lord have mercy on usall. #Covid9teen #weneedyoubradpitt

Any reasonable person would have recognized this as a joke. But far too many law enforcement officers are far from reasonable, even if they continually argue they are when they’re slapped with civil lawsuits. An actually reasonable officer would ignore this.

The officers involved in this lawsuit weren’t reasonable:

Shortly after Bailey posted, Detective Randell Iles was assigned by the Rapides Parish Sheriff’s Office (RPSO) to investigate. Iles’ supervisors were concerned that the post was a legitimate threat; Iles testified at his deposition that he thought that the post was “meant to get police officers hurt.” Iles looked at the post and the comments and concluded that Bailey had committed “terrorizing” in violation of Louisiana Revised Statute § 14:40.1. Iles had no information regarding anyone contacting RPSO to complain about the post or to express fear, or if any disruption had occurred because of the post.

If there was a “threat,” it was the one attributed to the Sheriff’s Office by Bailey. There certainly wasn’t any threat expressed by Bailey himself. And, as the detective testified, no one in the parish appeared to feel “threatened” by the joke post. Armed with all of this nothing, the Sheriff’s Office sprung into action.

Without seeking an arrest warrant, Iles and numerous RPSO deputies went to Bailey’s house and arrested him. According to Bailey, he was working in his garage when as many as a dozen deputies with bullet proof vests and weapons drawn approached him and ordered him to put his hands on his head, after which Iles told him to get on his knees and handcuffed him. While Bailey was handcuffed, one of the deputies (not Iles) told him that the “next thing [you] put on Facebook should be not to fuck with the police” and the deputies laughed.

Oh. My mistake. The officers did have a sense of humor.

Anyway. Moving on:

Iles advised Bailey of his rights, took a brief statement, and told him he was being charged with terrorizing. Bailey told Iles that the Facebook post was a joke and apologized. In a supplemental investigative report completed after the arrest, Iles recounted that Bailey told him he had “no ill will towards the Sheriff’s Office; he only meant it as a joke.” Bailey deleted his Facebook post after Iles told him that he could either delete it himself or the RPSO would contact Facebook to remove it.

After all of this was done, Detective Iles decided it might be time to make this a bit more lawful. He filled out an affidavit listing probable cause for the arrest he had already performed. And he did this — as he told the court — by using Bailey’s post as evidence and ignoring Bailey’s own statements about it being a joke (and his subsequent deletion of the post) during the warrantless arrest.

This was followed by the RPSO celebrating this unlawful arrest with a post on its own Facebook page. It did not, however, deliver a follow-up post about the “terrorism” charges being dropped by the DA because (duh) they were completely unsupported by anything even approaching probable cause.

Bailey sued. The officers asked for immunity. The lower court somehow found in favor of the officers, dismissing Bailey’s lawsuit with prejudice.

That’s completely wrong, says the Fifth Circuit Appeals Court. And this is coming from a court that sides more frequently with law enforcement officers than any other appeals court in the land.

The Brandenburg requirements are not met here. At most, Bailey “advocated” that people share his post by writing “SHARE SHARE SHARE.” But his post did not advocate “lawless” and “imminent” action, nor was it “likely” to produce such action. The post did not direct any person or group to take any unlawful action immediately or in the near future, nobody took any such actions because of the post, and no such actions were likely to result because the post was clearly intended to be a joke. Nor did Bailey have the requisite intent to incite; at worst, his post was a joke in poor taste, but it cannot be read as intentionally directed to incitement.

[…]

On its face, Bailey’s post is not a threat. But to the extent it could possibly be considered a “threat” directed to either the public—that RPSO deputies would shoot them if they were “infected”—or to RPSO deputies— that the “infected” would shoot back—it was not a “true threat” based on context because it lacked believability and was not serious, as evidenced clearly by calls for rescue by Brad Pitt. For the same reason, Bailey did not have the requisite intent to make a “true threat.”

If it wasn’t incitement or a true threat, it was what, class? That’s right: protected speech. And if it’s protected speech, well… law enforcement has no constitutional business arresting someone for engaging in protected speech.

But before we even get to that, there’s the Fourth Amendment, which requires probable cause to arrest someone. No probable cause here, says the Fifth.

The relevant facts and circumstances known to Iles at the time of the arrest were: (1) his supervisors asked him to investigate the post; (2) the content of the post itself; (3) Bailey was the author; (4) the comments below the post; (5) Bailey’s statement to Iles that he meant the post as a joke and had no ill will toward RPSO; (6) nobody reported the post to law enforcement; and (7) the general social conditions during the early onset of the COVID-19 pandemic.

These facts and circumstances are not sufficient for a reasonable person to believe that Bailey had violated the Louisiana terrorizing statute. The statute’s requirement that the communication have “an immediacy element concerning the false information” is lacking. Moreover, “causation of ‘sustained fear’ is clearly an essential element of this part of the statute.” Here, however, there were no facts that would lead a reasonable person to believe that Bailey’s post caused sustained fear. No members of the public expressed any type of concern. Even if the post were taken seriously, it is too general and contingent to be a specific threat that harm is “imminent or in progress.” Nor would a reasonable person believe, based on these facts, that Bailey acted with the requisite “specific intent” to cause sustained fear or serious public disruption.

If no “reasonable person” would believe this post to be incitement or a true threat, then it naturally follows no reasonable officer would believe the same thing.

No immunity on the Fourth Amendment claim for the detective:

Iles appears to argue that the law was not clearly established, and that he is therefore entitled to qualified immunity, because there is no Fifth Circuit precedent addressing warrantless arrests pursuant to the Louisiana terrorizing statute. But Bailey does not have to identify such a case to defeat qualified immunity.

First, it is beyond debate that “[a] warrantless arrest without probable cause violates clearly established law defining an individual’s rights under the Fourth Amendment.” Second, whether it was “objectively reasonable” for Iles to believe there was probable cause is “assessed in light of legal rules clearly established at the time of the incident,” which includes the statute’s text and state case law interpreting it.

As explained above, at the time of the incident the text of the terrorizing statute and state case law interpreting it made it clear that there was no probable cause here. Tellingly, while Bailey cites to multiple Louisiana cases supporting his interpretation of the statute, Iles cites to no Louisiana case law interpreting the statute otherwise.

No immunity on the First, either.

Based on decades of Supreme Court precedent, it was clearly established that Bailey’s Facebook post did not fit within one of the narrow categories of unprotected speech, like incitement or true threats. […] Thus, when Iles arrested Bailey, he violated Bailey’s clearly established First Amendment right to engage in speech even when some listeners consider the speech offensive, upsetting, immature, in poor taste, or even dangerous. See, e.g. Hustler Mag., Inc., 485 U.S. at 54; Herceg, 814 F.2d at 1021–24. The district court erred in concluding otherwise.

Detective Iles is now seeing this lawsuit returned to the lower court, giving him a chance to waste the parish’s money for a third time. The first misspent tax dollars funded Detective Iles’ desire to see Bailey arrested for a joke — an arrest that involved several members of the Sheriff’s Office. The second blowing of tax dollars were spent in defense of the indefensible. The final expenditure will be the settlement that should arrive in the near future, given that Iles is back on the hook for rights violations. Three times the money spent; zero actual crimes prosecuted. And that’s a whole lot to pay for someone who was apparently born without a functioning sense of humor.

Filed Under: 1st amendment, 5th circuit, free speech, louisiana, mark wood, qualified immunity, randell iles, rapides parish, rapides parish sheriff's office, satire, waylon bailey