The government funds left-leaning experts who pretend to be independent arbiters of the truth, then takes the findings from the people they are paying, and pressures or even sometimes extorts companies to censor content at their bidding. The Supreme Court, unfortunately, might continue to allow it.
Last week, the Supreme Court heard oral arguments in a case that could have ramifications for the free speech rights of every American for decades. At issue in Murthi vs. Missouri was whether the government violated the first amendment by actively pressuring social media companies to suppress content they found objectionable, much of it related to the pandemic and the 2020 election. Though two lower courts have already held that the Biden Administration did precisely that and a judge has forbidden them from collaborating with social media companies while the case unfolds, advocates were less than enthused by the response of at least some of the Supreme Court Justices during the hearing. Progressive Justice Ketanji Brown Jackson generated the most headlines when she appeared to misunderstand the purpose of the first amendment in the first place, bizarrely claiming that it’s “hamstringing the federal government in significant ways” when that is the entire point. The amendment, like the rest of the Bill of Rights, represents lines the government is not allowed to cross, period, because when they are crossed, tyranny results sooner or later. Justice Elena Kagan didn’t go as far as her progressive colleague, but wondered how we could ever know whether a company removed a post of its own accord, or after being coerced, or rather “encouraged,” by the government. “We know that there’s a lot of government encouragement around here,” she said. “We also know that the platforms are actively content moderating, and they’re doing that irrespective of what the government wants, so how do you decide that it’s government action as opposed to platform action?” Conservative Justices fared little better unfortunately, seeming to breezily accept the Biden Administration’s position that they were simply engaging in speech themselves by talking to social media companies about content, the same way they would to a regular journalist or the average person, rather than forcing them to comply. Brett Kavanaugh, for example, suggested there was no difference at all and that makes it right in any event. “I had assumed, thought, experienced government press people throughout the federal government who regularly call up the media and berate them,” he said. Justice Amy Coney Barrett wondered whether prohibiting the government from directly contacting social media companies over speech “would sweep in an awful lot,” hypothesizing that the FBI should be able to work with companies to prevent doxing, stalking, and other malicious behavior. Chief Justice John Roberts, meanwhile, suggested that the scattershot structure of the government limited its ability to coerce companies, the government is “not monolithic, and that has to dilute the concept of coercion significantly.”
Unfortunately for us all, these comments fail to understand the nature and scale of the government’s interference with social media companies, both of which are a difference of degree and kind from anything that has occurred in the past with traditional journalists or the general public. First, the nature: While it’s true that the government necessarily has free speech and can exercise that right both publicly and privately, social media content moderation is fundamentally different from off the record and on the record conversations with journalists and editorial staff because a third party, not directly employed by either, is involved. It’s their content that is at stake, not the company’s or the governments. Putting this another way, the government is not influencing the content of The New York Times, which is free to publish what it chooses based on its own standard, exercising their editorial judgment in a marketplace where competing publications exercise their own judgments. When it comes to social media companies, however, the government is influencing how content created by an average person is treated on a platform where the law supposedly guarantees that the platform itself is not exercising editorial judgment under the much misunderstood Section 230. In exchange for freedom from liability for content posted on their platforms by third party users, social media companies are not allowed by law to make editorial judgments. That was the deal to ensure they could operate free from the threat of lawsuits and therefore, if a post is not illegal in nature or does not violate a clearly articulated policy, they should have no legal right to remove or restrict it whatever the government wants. This is fundamentally different from the laws governing a traditional media company, which is liable for the content and therefore empowered to control it. Further, the third party user whose post is removed or suppressed has little or no remedy to redress the grievance, meaning the power differential between the government influencing content and the user having the same influence is dramatic. The government has direct access to content moderation teams at social media companies as well as their executives, access that you and I do not have. The user, meanwhile, receives a notice that their post has been removed or even that they have been banned and can do next to nothing in response. The debate about content is therefore not occurring on equal terms, where you have the ability to speak out on your behalf and argue that the government is wrong. The government makes its case in secret, and you are only privy to the end result. The end result can include denying your speech rights entirely.
This leads directly to the second point, the degree and scale of the government’s involvement. In a word, it’s unprecedented. The departments contacting social media companies on a regular basis include the FBI, the Cybersecurity and Infrastructure Security Agency, the State Department, the Centers for Disease Control and Prevention, the Department of Health and Human Services, and more. The White House alone held two meetings with social media companies per week, the FBI one. The State Department conducted “hundreds of meetings about misinformation on its own,” flagging “huge quantities of First Amendment-protected speech to platforms for censorship.” The speech they targeted included everything from obvious jokes from private individuals to serious journalism. Even those employed by social media companies were surprised at the extent of government interference and their tenacity at getting their way. Twitter’s former Trust and Safety Chief, Yoel Roth, who has been sympathetic to the entire misinformation craze, noted that there were a “surprisingly high number [of] requests by the FBI for Twitter to take action on election misinformation, even involving joke tweets from low follower accounts.” The agency went beyond flagging potential misinformation as well, becoming the self appointed enforcer of Twitter’s own policies as they and they alone interpreted them, spending millions of dollars on the effort. “Hello Twitter contacts,” Fred from the San Francisco Field office began on November 10, 2022, the “FBI…is notifying you of the below accounts which may potentially constitute violations of Twitter’s Terms of Service for any action or inaction deemed appropriate within Twitter policy.” Mr. Roth, at some point, grew “perplexed” by the repeated inquiries, even on accounts “had not observed much recent activity.” “I’m frankly perplexed by the requests here, which seem more like something we’d get from a congressional committee than the Bureau,” he wrote in an internal email, adding that he was not “particularly comfortable with the Bureau (and by extension the [Intelligence Community]) demanding written answers.” Demand is a mild way to put it as well. In many cases, the government didn’t simply make suggestions and have conversations to promote its point of view. Instead, key people threatened to use government force if they didn’t get the results they wanted. Former White House press secretary Jen Psaki demanded companies “stop amplifying untrustworthy content… especially related to Covid-19, vaccinations and [the] election” or the Biden Administration might pursue “better privacy protections and a robust antitrust program.” Surgeon General Vivek Murthy claimed the “urgent threat to public health” posed by “health misinformation” could warrant “legal and regulatory measures.”
These are not the kind of threats one can make to traditional newspapers or other media companies. Social media companies, in contrast, have potentially vast legal exposure given their unique status under Section 230, which as mentioned earlier shield them from liability, and operations that go well beyond publishing, which could easily be swept up in antitrust or other regulatory measures as saw last week when Apple was sued by the Department of Justice for daring to sell a tightly controlled product that their customers love and remain loyal to. This led Justice Samuel Alito to note that the back and forth between officials and the social media companies suggested that the government was “treating Facebook and these other platforms like they’re subordinates.” Citing the “constant pestering,” he also said, “I cannot imagine federal officials taking that approach to the print media, our representatives over there,” gesturing to the press section in the courtroom. “If you did that to them, what do you think the reaction would be…Would you do that to the New York Times or the Wall Street Journal or the Associated Press or any other big newspaper or wire service?” The type of content the government targeted is also important. One might reasonably argue that there is a public interest in identifying and limiting false information, and we might imagine that many of the conversations between officials and traditional media outlets are over the veracity of a story, either asking them to correct it or providing more context. The government’s pressure on social media companies, however, extended to factual information they felt impeded their own plans. “We’ve increased disinformation research and tracking within the surgeon general’s office,” Ms. Psaki said when she was Press Secretary in the Biden Administration. “We’re flagging problematic posts for Facebook that spread disinformation. We’re working with doctors and medical professionals to connect medical experts who are popular with our audiences with accurate information and boost trusted content—so we are helping get trusted content out there.” In their view, “misinformation” was anything that might lead to “vaccine hesitancy” even if it was true. As the court found so far, Facebook admitted to censoring posts for any of the following “sins,” true but shocking personal anecdotes against the vaccine, disparaging others based on their personal vaccine choices, characterizing getting a vaccine as a matter of personal choice, and anything that might cause mistrust in public health experts. Other social media sites had similar strategies in service of targeting “misinformation.” All of this is obviously protected speech and only misinformation because it runs afoul of the government.
Misinformation, however, appears to be a phenomena that is largely in the eye of the beholder, and not surprisingly, those who specialize in it view things from the left side of the political spectrum, displaying little respect for free speech. A study conducted by Harvard last year found that among a survey of 150 “misinformation experts” less than 5% leaned slightly right, only 10% were in the center, and the remaining 85% were either slightly left, fairly left, or very left. As they put it in a rather dramatic understatement, “Experts leaned strongly toward the left of the political spectrum.” These “experts” openly agreed that misinformation is not necessarily false information or fake information, but “also misleading information…Researchers may thus want to broaden their nets to include more misleading information and subtler forms of misinformation, such as biased or partisan news.” They even considered whether satire or parody constitutes misinformation. While this study didn’t classify it so, “some studies have in the past included satirical and parodical news websites.” Further, these supposed experts represented “a broad range of scientific fields. Experts specialized in psychology (39), communication and media science (32), political science (22), computational social sciences (17), computer science (9), sociology (8), journalism (8), philosophy (5), other (4), medicine/other (2), linguistics (2), history (1), physics (1),” suggesting the obvious fact academia itself leans heavily to the left and is hopelessly corrupt. We see evidence of this in a recent story about a so-called misinformation expert, University of Washington professor and researcher Kate Starbird, who was featured on 60 Minutes as a supposedly independent voice, seeking the truth in a sea of falsity. As she put it regarding the misinformation industry in general, “It’s interesting that the people that pushed voter fraud lies are some of the same people that are trying to discredit researchers that are trying to understand the problem.” The only problem is: Ms. Starbird took money from the Biden Administration to fund her research and she has donated to his campaign. The National Science Foundation provided a $2.1 million grant in 2021 to help “develop and evaluate ‘rapid response’ methods for studying and communicating about disinformation at a sophistication and pace on par with the dynamic and interdisciplinary nature of the challenge.” She also serves on an advisory committee to the Department of Homeland Security, under its Cybersecurity and Infrastructure Security Agency, which as we know was actively engaged in pushing social media companies to censor content posted by their own users. Her role, in fact, was to help identify “informational threats,”and work with “governmental” and “non-governmental” organizations to debunk misinformation.
In other words, it’s an entirely closed loop industry – dare I say conspiracy – wherein the government funds left-leaning misinformation experts who pretend to be independent arbiters of the truth, then takes the findings from the people they are paying, and pressures or even sometimes extorts companies to censor content at their bidding. The truth has nothing to do with it, but power certainly does, which of course is why we have the first amendment to begin with: To limit government power. To hamstring it, forever, and completely, and always. We should all hope that a majority on the Supreme Court see this charade for what it is, and rule accordingly.
Confessions of a Conservative Atheist 