Supreme Court Hears Social Media Censorship Case (The Twitter Files Goes to Court)

Screenshot via YouTube

Last March, Matt Taibbi testified before congress about the investigation that was widely known as the Twitter Files. Here's a bit of what he had to say.

The original promise of the Internet was that it might democratize the exchange of information globally. A free internet would overwhelm all attempts to control information flow, its very existence a threat to anti-democratic forms of government everywhere.

What we found in the Files was a sweeping effort to reverse that promise, and use machine learning and other tools to turn the internet into an instrument of censorship and social control. Unfortunately, our own government appears to be playing a lead role…

We learned Twitter, Facebook, Google, and other companies developed a formal system for taking in moderation “requests” from every corner of government: the FBI, DHS, HHS, DOD, the Global Engagement Center at State, even the CIA. For every government agency scanning Twitter, there were perhaps 20 quasi-private entities doing the same, including Stanford’s Election Integrity Project, Newsguard, the Global Disinformation Index, and others, many taxpayer-funded.

A focus of this fast-growing network is making lists of people whose opinions, beliefs, associations, or sympathies are deemed “misinformation,” “disinformation,” or “malinformation.” The latter term is just a euphemism for “true but inconvenient.”

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On July 4th last year, a federal judge in Louisiana granted a preliminary injunctions forbidding the government from many interactions with social media companies. The judge wrote that the case appeared to involve a "massive attack against free speech."

In the ruling, Judge Terry A. Doughty of the U.S. District Court for the Western District of Louisiana said that parts of the government, including the Department of Health and Human Services and the Federal Bureau of Investigation, could not talk to social media companies for “the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.”

In granting a preliminary injunction, Judge Doughty said that the agencies could not flag specific posts to the social media platforms or request reports about their efforts to take down content. The ruling said that the government could still notify the platforms about posts detailing crimes, national security threats or foreign attempts to influence elections.

“If the allegations made by plaintiffs are true, the present case arguably involves the most massive attack against free speech in United States’ history,” the judge said. “The plaintiffs are likely to succeed on the merits in establishing that the government has used its power to silence the opposition.”

The White House pushback on the Twitter Files and this case was that the government hadn't ordered anyone to do anything it had just held collegial meetings with representatives of the social media companies and occasionally sent over lists of problematic accounts. If the companies decided to remove or limit those accounts that was their doing, not the government's. Nevertheless, the ruling was seen as a major blow to White House efforts to control disinformation.

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“The court’s order, which prevents the government from even speaking with tech companies about their content moderation policies, deals a huge blow to vital government efforts to harden U.S. democracy against threats of misinformation,” Leah Litman and Laurence H. Tribe wrote in the Just Security blog on Wednesday.

The DOJ appealed the case to the Fifth Circuit Court of Appeals the following day. Initially the Appeals Court lifted the injunction preventing the Biden administration from discussing disinformation with the social media companies but in September the Appeals Court agreed with the lower court's decision:

A federal appeals court ruled on Friday that the Biden administration most likely overstepped the First Amendment by urging the major social media platforms to remove misleading or false content about the Covid-19 pandemic, partly upholding a lower court’s preliminary injunction in a victory for conservatives...

The judges wrote that the White House and the Office of the Surgeon General had “coerced the platforms to make their moderation decisions by way of intimidating messages and threats of adverse consequences” and “significantly encouraged the platforms’ decisions by commandeering their decision-making processes.”

The appellate court also found that the Federal Bureau of Investigation had used coercion in its interactions with the companies, which took down 50 percent of the material online that the bureau’s agents flagged as troublesome.

“Given the record before us, we cannot say that the F.B.I.’s messages were plainly threatening in tone or manner,” the judges wrote. Nevertheless, “we do find the F.B.I.’s requests came with the backing of clear authority over the platforms.”

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Once again, the DOJ appealed the case, this time to the Supreme Court. The September appeal argued that the White House had the right to use the "bully pulpit" both in public and in private.

In asking the Supreme Court to intervene, Solicitor General Elizabeth B. Prelogar said the government was entitled to press its views, both in public and in private.

“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,” she wrote.

The Supreme Court agreed to hear the case in October and once again lifted the injunction put in place by the Fifth Circuit but Justices Alito, Thomas and Gorsuch all dissented and argued the injunction should not have been lifted given that it would be months before the court issued a decision in the case.

And that brings us to today when the Supreme Court heard oral arguments in the case this morning. CNN summarizes the oral arguments, which concluded a short time ago as I write this, as generall skeptical of the censorship claims.

A majority of the Supreme Court signaled Monday that it has serious reservations with an argument raised by two conservative states that the federal government crossed a First Amendment line by attempting to persuade social media sites to remove content it deemed as misinformation.

Several conservative justices raised a series of hypothetical questions suggesting they are worried about the potential spillover from embracing the states' legal test. They wondered: Could the FBI not ask Facebook to take down a post urging harm against public officials? Could the White House not ask X, formerly known as Twitter, to remove a post that was inaccurate or put American troops in harm's way?

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Specifically, Justice Kavanaugh asked if what the government was doing with regard to social media companies wasn't similar to going to a newspaper behind the scenes and warning them that publication of a certain story might put lives in danger or cause harm to national security. His point being that the government can (and has in the past) asked for accommodations from private entities. So long as the government doesn't make demands of threats that is generally legal.

Benjamin Aguiñaga, the solicitor general of Louisiana who is arguing the case, said the government doesn't have to issue threats or use coercion in order to cross a First Amendment line. He said the government "cannot induce, encourage or promote" to get private companies to agree. He also added that "Pressuring platforms in back rooms, shielded from public view, is not using a bully pulpit. That’s just being a bully."

The pushback from the government is that in some percentage of cases the social media companies still said no, refusing to remove messages or accounts the government had pointed to as containing misinformation. The government argues that so long as the companies feel free to say no some of the time, that's not coercion and therefore it's not censorship.

But solicitor general Aguiñaga pointed out the difference between Kavanaugh's hypothetical involving the newspaper and what the Biden administration has actually been doing. In the hypothetical the government is going directly to the publisher, i.e. the speaker, and appealing to them not to say something in public for whatever reason. But in the case before the court this morning, the government is bypassing the speaker and going to the platform to indirectly silence the speaker. From the point of view of the speaker, that's not persuasion it's control.

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It sounds like there could be five or even six votes (the liberals plus Roberts, Barrett and Kavanaugh) to side with the Biden administration. On the other hand, Kavanaugh and Barrett may have been playing devil's advocate without really showing how they will vote. We'll have to wait several months to find out.

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David Strom 8:00 AM | July 25, 2024
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