site banner
PaperclipPerfector  1mo ago (text post)   25512 thread views

Culture War Roundup for the week of March 18, 2024

This weekly roundup thread is intended for all culture war posts. 'Culture war' is vaguely defined, but it basically means controversial issues that fall along set tribal lines. Arguments over culture war issues generate a lot of heat and little light, and few deeply entrenched people ever change their minds. This thread is for voicing opinions and analyzing the state of the discussion while trying to optimize for light over heat.

Optimistically, we think that engaging with people you disagree with is worth your time, and so is being nice! Pessimistically, there are many dynamics that can lead discussions on Culture War topics to become unproductive. There's a human tendency to divide along tribal lines, praising your ingroup and vilifying your outgroup - and if you think you find it easy to criticize your ingroup, then it may be that your outgroup is not who you think it is. Extremists with opposing positions can feed off each other, highlighting each other's worst points to justify their own angry rhetoric, which becomes in turn a new example of bad behavior for the other side to highlight.

We would like to avoid these negative dynamics. Accordingly, we ask that you do not use this thread for waging the Culture War. Examples of waging the Culture War:

  • Shaming.

  • Attempting to 'build consensus' or enforce ideological conformity.

  • Making sweeping generalizations to vilify a group you dislike.

  • Recruiting for a cause.

  • Posting links that could be summarized as 'Boo outgroup!' Basically, if your content is 'Can you believe what Those People did this week?' then you should either refrain from posting, or do some very patient work to contextualize and/or steel-man the relevant viewpoint.

In general, you should argue to understand, not to win. This thread is not territory to be claimed by one group or another; indeed, the aim is to have many different viewpoints represented here. Thus, we also ask that you follow some guidelines:

  • Speak plainly. Avoid sarcasm and mockery. When disagreeing with someone, state your objections explicitly.

  • Be as precise and charitable as you can. Don't paraphrase unflatteringly.

  • Don't imply that someone said something they did not say, even if you think it follows from what they said.

  • Write like everyone is reading and you want them to be included in the discussion.

On an ad hoc basis, the mods will try to compile a list of the best posts/comments from the previous week, posted in Quality Contribution threads and archived at /r/TheThread. You may nominate a comment for this list by clicking on 'report' at the bottom of the post and typing 'Actually a quality contribution' as the report reason.

7
Top Bottom Old Controversial Comments
Jump in the discussion.

No email address required.

During my run yesterday, I gave a listen to the oral arguments from Murthy v. Missouri that had happened earlier in the day. Before getting into what they covered in the argument, let's have a quick rundown of the basics of the case from Wikipedia:

Murthy v. Missouri (originally filed as Missouri v. Biden) is a case pending in the Supreme Court of the United States involving the First Amendment, the federal government, and social media. The states of Missouri and Louisiana, led by Missouri's then Attorney General Eric Schmitt, filed suit against the U.S. government in the Western District of Louisiana. They claimed that the federal government pressured social media companies to censor conservative views and criticism of the Biden administration in violation of the right to freedom of expression. The government said it had only made requests, not demands, that social media operators remove misinformation.

On July 4, 2023, Judge Terry A. Doughty issued a preliminary injunction against several agencies and members of the Biden administration from contacting social media services to request the blocking of material, with exceptions for material involving illegal activity. On appeal, the Fifth Circuit Court of Appeals found that there had been some coercion in the government's contact with social media companies in violation of the First Amendment, but narrowed the extent of Doughty's injunction to block any attempts by the government to threaten or coerce moderation on social media. The United States Supreme Court initially stayed the Fifth Circuit's order, then granted review of the case by writ of certiorari.

Hearings for the case were held in May 2023. Judge Doughty issued his ruling on July 4, 2023, issuing a preliminary injunction against several Biden administration officials from contacting social media services for "the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech."[14] In his 155-page ruling, Doughty wrote: "The Plaintiffs are likely to succeed on the merits in establishing that the Government has used its power to silence the opposition. Opposition to COVID-19 vaccines; opposition to COVID-19 masking and lockdowns; opposition to the lab-leak theory of COVID-19; opposition to the validity of the 2020 election; opposition to President Biden’s policies; statements that the Hunter Biden laptop story was true; and opposition to policies of the government officials in power. All were suppressed. It is quite telling that each example or category of suppressed speech was conservative in nature. This targeted suppression of conservative ideas is a perfect example of viewpoint discrimination of political speech. American citizens have the right to engage in free debate about the significant issues affecting the country."[15] He continued: "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 plaintiffs are likely to succeed on the merits in establishing that the government has used its power to silence the opposition."[14]

To no one's surprise, federal agencies have been continually reaching out to social media companies, "encouraging" them to implement moderation policies that are in keeping with the federal government's preferences. On some of these, I can certainly see honest motivations for federal actors to prefer that things be moderated, on others it seems entirely self-serving, but the question before the court on whether the speech rights of posters are being infringed doesn't seem to hinge upon what the government's motivation is (although there is an argument that restrictions that would meet a strict scrutiny standard could be legitimate). The oral arguments were moderately interesting and I thought the first half, argued by Brian Fletcher on behalf of the government, raised some points that I hadn't fully considered. As ever, I am not a lawyer. If you want to peruse the transcript, you can find it here. The most salient piece for me is when Sam Alito is exchanging with Fletcher:

JUSTICE ALITO: Mr. Fletcher, when I read all of the emails exchanged between the White House and other federal officials on Facebook in particular but also some of the other platforms, and I see that the White House and federal officials are repeatedly saying that Facebook and the federal government should be partners, we're on the same team, officials are demanding answers, I want an answer, I want it right away, when they're unhappy, they -- they curse them out. There are regular meetings. There is constant pestering of -- of Facebook and some of the other platforms and they want to have regular meetings, and they suggest why don't you -- they suggest rules that should be applied and why don't you tell us everything that you're going to do so we can help you and we can look it over. And I thought: Wow, I cannot imagine federal officials taking that approach to the --the -- the print media, our representatives over there. If you -- if you did that to -- to them, what do you think the reaction would be? And so I thought: You know, the only reason why this is taking place is because the federal government has got Section 230 and antitrust in its pocket and it's -- to mix my metaphors, and it's got these big clubs available -- available to it, and so it's treating Facebook and these other platforms like they're subordinates. Would you do that to The -- to The New York Times or The Wall Street Journal or the Associated Press or any other big newspaper or wire service?

MR. FLETCHER: So there's a lot packed in there. I want to give you one very specific answer first and then step back out to the proper context. So specifically you mentioned demanding an answer right away and cursing them out. The only time that happens is in an email that's about the President's own Instagram account. It's not about moderating other people's content.

JUSTICE ALITO: Okay. We'll put that aside. There's all the rest.

MR. FLETCHER: So --

JUSTICE ALITO: Constant meetings, constant emails, we want answers.

MR. FLETCHER: Right.

JUSTICE ALITO: We're partners, we're on the same team. Do you think that the print media regards themselves as being on the same team as the federal government, partners with the federal government?

MR. FLETCHER: So potentially in the context of an effort to get Americans vaccinated during a once-in-a-lifetime pandemic. And I really think that piece of context, it doesn't change the First Amendment principles, but it's relevant to how they apply here. And I think it's important to understand that at this time, this was a time when thousands of Americans were still dying every week and there was a hope that getting everyone vaccinated could stop the pandemic. And there was a concern that Americans were getting their news about the vaccine from these platforms, and the platforms were promoting, not just posting --

JUSTICE ALITO: Well, I -- I --

MR. FLETCHER: -- but promoting, bad information.

JUSTICE ALITO: I understand all that. And I know the objectives were good, but -- but, once again, they were also getting their news from the print media and the broadcast media and cable media, and I just can't imagine the federal government doing that to them. But maybe I'm naive. Maybe that goes on behind the scenes. I don't know. But I -- I -- it struck me as wow, this is not what I understand the relationship to be. That's all.

While there is quite a bit more substance, I think Fletcher's argument relies heavily on the bolded above. While he doesn't admit that there is coercion on the part of the federal government (it would be pretty damning if he did), he seems to be suggesting that if there was coercion, it was for a very good reason, so it's OK. In contrast, when the oral argument shifts to the individual arguing against the government, his core position doesn't really rely on whether the speech being restricted is good or bad, whether the government had a strong motivation to encourage restriction of speech, he simply claims that it is illegal for the government to use a third-party to restrict speech:

MR. AGUINAGA: Good morning, Mr. Chief Justice, and may it please the Court: Government censorship has no place in our democracy. That is why this 20,000-page record is stunning. As the Fifth Circuit put it, the record reveals unrelenting pressure by the government to coerce social media platforms to suppress the speech of millions of Americans. The district court, which analyzed this record for a year, described it as arguably the most massive attack against free speech in American history, including the censorship of renowned scientists opining in their areas of expertise. And the government's levers of pressure are anathema to the First Amendment. Behind closed doors, the government badgers the platforms 24/7, it abuses them with profanity, it warns that the highest levels of the White House are concerned, it ominously says that the White House is considering its options, and it accuses platforms both of playing total Calvinball and of hiding the ball, all to get the platforms to sensor more speech. Under this onslaught, the platforms routinely cave. Now, last month, in the NetChoice cases, the platforms told you that it's incredibly important that they create their own content moderation policies. But this record shows that they continually depart from those policies because of unrelenting government pressure. Indeed, as Facebook recently disclosed in an internal email to former UK deputy prime minister Nick Clegg, the reason Facebook did that was "because we were under pressure by the administration. We shouldn't have done it." Now my friend says all this is constitutional because the government has the right to persuade using the bully pulpit. But the government has no right to persuade platforms to violate Americans' constitutional rights, and pressuring platforms in back rooms shielded from public view is not using the bully pulpit at all. That's just being a bully.

JUSTICE THOMAS: Counsel, the -- I know your argument is basically a Bantam Books argument, but do you need coercion in order to -- do you think that's the only way you could make your case, or could coordination accomplish the same thing; that is, the government is censoring by joint actions with the platforms as opposed to coercing the platforms?

MR. AGUINAGA: Your Honor, we don't need coercion as a theory. That's why we led with encouragement in our red brief. And I would point the Court to what it said in Norwood, which is the Court -- or the government cannot induce, encourage, and promote private actors to do directly what the government can't itself do directly. And that's, I think, the principle that's guiding here, which is regardless of the means that the government tries to use to pressure -- to pressure the platforms to commit censorship against third parties, the Constitution really doesn't care about that. It's the fact that what the government is trying to accomplish is the suppression of speech.  Aguinaga's argument is that the principle and the literal text of the First Amendment are quite clear, that there isn't some exemption for the government just really, really not liking what someone is saying. The Court doesn't seem to be buying this at all, for three reasons:

[1] Issues of traceability and redressability. The standard is that for the Court to intervene, one must be able to demonstrate that the origin of the restriction speech comes from the government and that relief can be provided by the court. The reason that some of the justices seem to think this isn't traceable is because of how dispersed the government's actions - you can't prove that you were targeted when the government reaches out to Twitter and says, "someone remove this troublesome speech from your platform". Why, Twitter might have decided to do it without the government. Not only that, they didn't say to take down your speech, they just suggested that it would be good if the company took it down. Apparently, the legal theory here is that banning a whole class of speech wouldn't be traceable because the effects are dispersed. One example of this back and forth:

JUSTICE KAGAN: Yeah, but even on that one, I guess I just didn't understand, in what you were saying, how you drew the link to the government. I mean, we know that there's a lot of government encouragement around here. We also know that there's -- 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?

MR. AGUINAGA: Your Honor, I think the clearest way -- and if I understand -- so let me answer your question directly, Your Honor. The way -- the link that I was drawing there was a temporal one. If you look at JA 715 to 717, that's a May 2021 e-mail. Two months later after that e-mail, calls were targeting health groups just like Jill Hines's group. She experiences the first example of that kind of group being -

JUSTICE KAGAN: Yeah, so in two months, I mean, a lot of things can happen in two months. So that decision two months later could have been caused by the government's e-mail, or that government e-mail might have been long since forgotten, because, you know, there are a thousand other communications that platform employees have had with each other,   that -- a thousand other things that platform employees have read in the newspaper. I mean, why would we point to one e-mail two months earlier and say it was that e-mail that made all the difference?

MR. AGUINAGA: Your Honor -- and I would say a thousand other e-mails between the White House and Facebook in those two months. I mean, that's the volume of this interaction, this back and forth, between the platform and the government. And it's all -

JUSTICE KAGAN: But if it's encouragement -- I mean, let's even take that this was something that the -- that the government was continually pressing the --encouraging the platforms to do. I mean, until you can show that there's something about --overbearing the platform's will, which, you know, seems sort of hard to overbear Facebook's work -- will from what I can gather from the world, but, you know, how do you say it's the government rather than Facebook? This doubles as a great example of what I mean when I say that many legal arguments are fundamentally dishonest.

Come on - does anyone really believe that federal agencies sending thousands of emails to Facebook doesn't impact their moderation policies? If those thousands of emails didn't have an impact, one might wonder why the White House staffers wasted so much time sending them.

[2] A strong emphasis on coercion. There are tons of laps done around this, attempting to distinguish between coercion, strong encouragement, and weak encouragement. Arguinaga takes a very libertarian view that even weak encouragement to remove someone's posts would be an illegitimate government action, but emphasizes that this isn't necessary to rule in their favor. These exchanges get more frustrating to listen to later, but here's one that clarifies the point:

JUSTICE KAVANAUGH: And one thing that I think I want to square up with you is if someone calls and -- or contacts the social media company and says what you have there, this post, has factually erroneous information, so not a viewpoint that we disagree with, factually erroneous information, and the social media company says, we'll take a look at that and --and you still think that's significant encouragement that qualifies as coercion, if they take it down in response to concluding that it, in fact, is factually erroneous?

MR. AGUINAGA: No, Your Honor. If there's no ask from the government, if the government's just saying here's our view of the statement --  JUSTICE KAVANAUGH: Okay. And we think it should be -- it should be taken down, it's up to you, but we think it should be taken down.

MR. AGUINAGA: I think that's a harder case for me. I guess, you know, if you think it is a close case decide it under the First Amendment.

JUSTICE KAVANAUGH: I don't know if --that's the question here. You can't -- you can't just claim the mantle. Yeah. What -- what do you think the -- when you say it's a "harder case," why do you think it's a harder case?

MR. AGUINAGA: Because I understand the instinct, Your Honor, that just asking very, very politely or saying very, very politely we think you should take it down, that that shouldn't be a First Amendment problem but the reality is that when somebody like the FBI or somebody lying a deputy assistant to the president makes a statement like that, that statement carries force. That's just the reality. My dear mother is a saint and if she makes a statement -- same statement to Twitter their -- they don't know anything about her, they don't care, but they do care if it is the government.

JUSTICE KAVANAUGH: Why is that? Is it your assumption that anyone in those circumstances is always implicitly threatening adverse consequences?

Aguinaga is actually more conciliant in response than what I believe - yes, when the FBI reaches out to you and says, "we think it would be good if you did X", it is always coercive. The nature of the FBI is that it does not have the ability to merely encourage - every single thing that comes as a "suggestion" from the FBI is inherently coercive to a private party. Thinking otherwise seems like an example of someone that is so lawbrained that they're unable to relate to the experience of a private individual interacting with a powerful federal agency.

[3] Sometimes the government just really, really wants to take down your posts. This theory was pushed most heavily by my least favorite Justice, Kentanji Brown-Jackson:

JUSTICE JACKSON: So my biggest concern is that your view has the First Amendment hamstringing the government in significant ways in the most important time periods. I mean, what would -- what would you have the government do? I've heard you say a couple times that the government can post its own speech, but in my hypothetical, you know, kids, this is not safe, don't do it, is not going to get it done. And so I guess some might say that the government actually has a duty to take steps to protect the citizens of this country, and you seem to be suggesting that that duty cannot manifest itself in the government encouraging or even pressuring platforms to take down harmful information. So can you help me? Because I'm really -- I'm really worried about that because you've got the First Amendment operating in an environment of threatening circumstances from the government's perspective, and you're saying that the government can't interact with the source of those problems.

Quite the counter. Sure, you may believe that you're guaranteed speech rights, but the government actually has a duty to silence you if your speech is, like, bad. It takes a very sophisticated legal mind to contextualize Brown-Jackson's perspective on the First Amendment, that's for sure.

Anyway, the tenor of the argument made me pretty confident that the Court is going to rule in favor of the government. What grounds they'll have for doing so will be at least mildly interesting. I'm hoping that it will be a narrow ruling, with Roberts spearheading a tailoring doctrine that focuses on the putative lack of traceability and distinguishes between coercion as unacceptable, but strong encouragement being fine. In the worst of all worlds, something like KBJ's principle that the government should censor you if it just thinks you're really bad will be the law of the land. Alito and Thomas will likely offer a short, blunt dissent, probably penned by Alito, emphasizing that the First Amendment actually does say what it says and that implementing censorship via a third-party is fundamentally the same as just doing it yourself.

I think Alito is pretty obviously right to make comparisons to print media, though even with that, there's still plenty of tricky. In fact, I think that we really shouldn't even speak the words "social media" or "internet" in this discussion. Instead, from a historical perspective, this really seems like a core freedom of the press issue. That is, for centuries after the printing press was created, governments around the world went to great lengths to control its use. Examples are found in Acemoğlu and Robinson. Private entities or companies would operate a printing press, and regular people could go interact with these operators in sort of a regular way; say, if they wanted to print up a pamphlet to hand out about their views or a newspaper or something, they would go to the printer, submit what they wanted to have printed, pay them however much money, then come back and receive their product after it was printed. Much the same as today, you could say that those private entities had some rights of their own to do business, and they might refuse to print something if they really disagreed with it (they didn't have to bake the cake or make the website; could ban the local Alex Jones, or whatever analogy you want). So what did governments do? They pressured press operators to adopt criteria that the government found favorable. Maybe they'd even issue local monopolies and say that only so-and-so had the right to run a press in a particular area. Of course, the guys they picked always somehow knew what sets of views they needed to have (and which they needed to reject to print) in order to keep their license and continue making bank.

As countries became more liberal democratic, they realized that this was a problem. Some countries kept the monopolies, but passed pretty strict non-discrimination laws, saying that they had to just print whatever the customers wanted; no letting pro-monarchists print their pamphlets and rejecting revolutionary pamphlets. Others, like the US, passed freedom of the press provisions, simply saying that the government needed to stay TF away from press operators; no monopolies, no threats of shutting them down if they don't toe the party like, just leave Britney press operators alone. All of them. Whoever wanted to just buy a press and print.

As such, I think the freedom of speech part is kind of a distraction for what should really be considered freedom of the modern press. It's not an institutional press, like NYT/CBS/whatever. It's literally anybody who waltzes down to their press company and wants to use the press. And I think the underlying motivation, while not putting in words that it's effectively a non-discrimination law, was understood to have a non-discrimination effect. Whether or not there could be enough history here to make a legal determination given our current laws, just from a 'theory of good institutions in the vein of Why Nations Fail', it would be a pretty rough outcome for countries that went down the "freedom of the press" route rather than the non-discrimination route to discover that natural monopolies might arise to make this whole branch of the endeavor ultimately fruitless, if governments could just discreetly threaten the natural monopolists. I just hope we don't have to see a nation or three literally fail from going down this route before we either rekindle the non-discrimination-type theoretical roots of the freedom of the press or we explicitly adopt something that is a standalone non-discrimination provision.

Some additional nice things that this view captures: The third-party business is important and captured here. Old school printing presses were also third parties. It doesn't matter whether the guy who is asking the printer to print the thing is the NYT or Joe from across the street; if the government doesn't have a reason that is compelling enough to overcome 1A speech scrutiny, so that they can go directly to NYT/Joe and directly tell him that he can't say that, then they should be prohibited by 1A press scrutiny from going down the street to the local print shop or the commercial entity that actually does the physical printing for NYT and telling them that they shouldn't print it.

I think this distinction also captures some of the "government need" doctrine, as well. I accept that there are some genuine government needs that can overcome 1A speech scrutiny. For example, they can legitimately tell folks who have security clearances that they're not allowed to just write a book blowing a bunch of classified information. Of course, how is this balanced with things like the Pentagon Papers precedent? Well, in my view, the Pentagon Papers precedent is quite strong - if someone who didn't agree to keep classified information secret gets that classified information, for the most part, the government can't prohibit them from publishing it. There is some obvious danger here, but it's actually not all that far off from the tradeoffs we make in cybersecurity all over the place. If Party A discovers a flaw in Party B's software, even if Party B is a sensitive government function, the sort of accepted solution is that they tell Party B that they'll only have X days to implement a fix, to do what they can to protect some equities, and then they're going public. Yet, at the same time, some flaws are viewed as soooooo potentially damaging, that even Google's vulnerability team has failed to follow through on the threat to go public when the company with the flaw didn't bother repairing it. We basically let that decision be up to the Googles/Party A's.

Similarly, when the Intercept/Guardian got the Snowden files, they met with the NSA. The NSA did try to express the government's perspective on the matter. They asked the journalists to withhold some things from publication, arguing that some of the items were completely noncontroversial, directly within the government's known mission, were of extremely little "news value", and would cause significant damage to national security and/or sources/methods. I'm mostly fine with this, even though there is a lot of conversation here about government discussions being inherently coercive. It is genuinely difficult to draw lines here, and it's hard to come up with a good limit that prevents the Intercept/Guardian from getting the Elon Musk Harassment Treatment.

That said, I think it is infinitely preferable to the option of going to third parties. The Intercept/Guardian definitely have to weigh a lot of things, including the possibility of the Elon Musk Harassment Treatment, but at least they're the ones with skin in the game and the ability to actually weigh them. Whoever it is that prints their physical copies or hosts their website may have some skin in the game, just because it is possible for people to flee to other printers/hosters out of fear of being censored, themselves, but that skin is wayyyyyyy thinner than the actual party who wants to publish the information/opinion that they have.

Of course, this would make it much harder for the government to do what they want to do. There are lots of bozos on twitter spouting bullshit that the government would like to get rid of. If they actually had to go through the bozos rather than twitter, there would be substantial refocusing of efforts towards things that actually matter for national security, not bozos spouting off about their personal beliefs on COVID or whatever.

opposition to the lab-leak theory of COVID-19

So now they're suppressing opposition to the lab-leaks? We've come full circle!

And yet they're still not banning Gain of Function! The bioterrorism NGOs are still running around, receiving public funding. The US government position seems to be 'we accept the lab leak in the political sense that it makes China look bad but not in the physical sense that we should stop doing this stuff'. Meanwhile the Chinese seem to have settled on 'it's nothing to do with us, the virus came from elsewhere, probably America'. Truly, the superpowers are made for eachother.

To steelman the government and KBJ’s point a bit:

Imagine that shoplifting became memeified. I know that there are niche shoplifting communities in existence right now, but what if they got BIG? What if all the 17-year-old zoomers in your neighborhood were getting pro-shoplifting content shoveled into their feeds? What if the shoplifting epidemic spread beyond isolated city centers and became an existential threat to the whole economy? Nobody can sell anything. Delivery services pick up the slack, but then “porch pirating is shoplifting too,” becomes the meme and everything falls apart.

“Shoplifting is cool,” is protected speech, so is “those big corporations deserve it.” Imagine it’s clear as day that this is a social contagion mediated by online social media, but the tech companies refuse to take moderator action against shoplifting content. Does the government have to send in the troops and declare martial law before it can send a series of strongly worded emails to social media companies asking them to stop the madness?

If the government is powerful enough to stop people talking about shoplifting, it's powerful enough to stop the shoplifting itself. Just do the latter. For an analogy where society is already rife with pro crime messages that can't be censored, consider all use of illegal drugs and their widespread promotion in various forms of media. That's the test case. Should the government get social media to censor discussion of that?

We've already seen the risks of government control of speech. 2020 happened. Hypothetical risks are not a good reason to grant license for 2020 to keep happening in the unlikely chance it prevents some other nebulous problem that could already be dealt with within the bounds of the law.

If the government is powerful enough to stop people talking about shoplifting

I mean, I hate the analogy we're on, but given it, I don't think this is automatically true. Speech for 95%+ of the population goes through ~6 companies. Because of how centralized computer services end up being, this is the rough equivalent of all shopping happening in 6 physical stores.

I think the federal government could prevent shoplifting from 6 physical stores, but not thousands of them distributed across the country.

The answer to your hypothetical is already in the constitution under Article V.

The governance issue is choosing the venue for public policy debates. Perhaps the policy issue is whether to have an exception to the first amendment for anti-social speech. The trade-off is that if the government gets to decide what is "anti-social speech" the ruling party will attempt to consolidate power by declaring that the opposing party's talking points are "anti-social speech" and banning them.

The constitution currently goes 100% on not letting the government consolidate power by limiting speech, and 0% on banning novels and films that celebrate degenerate anti-heroes. Is that the right trade off? Maybe. I'm not sure about the policy issue. But the governance issue seems clear enough, the public policy discussion takes place in a constitutional convention, not the Supreme Court. That might seem obvious. If the Supreme Court balances public policy trade-offs themselves, that replaces the Republic with a Kritarchy.

But there is a second, more subtle issue. Contemplate the likely arguments in a constitutional convention. There will be those who are sick of the mass media pushing degenerate narratives and wish to grant the government broad powers against "anti-social speech". There will be those who are terrified of the dangers of such powers and want a narrow amendment that only grants congress the power to ban speech that advocates shoplifting and porch-piracy.

Let us suppose that it is the narrow amendment that is passed. Congress decides that calls for reparations are in really just a nudge and a wink for shoplifting and bans it also. Those who advocate for reparations sue, claiming that there remaining free speech right are being violated. Do they get to have their case heard by an independent tribunal? The traditional idea is that the Supreme Court is that independent tribunal. The constitutional convention thrashed out a deal. Yes to restricting speech, but narrowly. Who upholds the deal? The Supreme Court.

What is supposed to happen if the Supreme Court is debating and making the trade-off? One idea is to have a Super-Supreme-Court. Once the Supreme Court has decided that some speech restriction are permitted, who hears cases claiming that speech restrictions are too restrictive? The Super-Supreme-Court! But this is getting silly. On the other hand, if the case is hear by the Supreme Court itself, does it hear the case as though its previous ruling were carved in stone, or does it revisiting the issue, acting as free-wheeling kritarchy that makes it up as it goes along. What a mess!

I’ll bite the bullet on this one!

If the government’s requests were limited to an open request or series of requests in full view of the public, then I’d have no issue.

However, if a wide reaching collection of disparate government agencies funnelled their requests in secret through a formal task force set up by the intelligence agencies in partnership with former intelligence agency officials now working at the social media firms and then denied that any such actions were being taken, I would be against it.

In other words, it’s not necessarily the request but the manner in which the requests were processed; the latter being too open to the abuses that we now know unfolded.

Having said that, there’s a principled difference between the kind of speech you’re referring to here and the kind of speech that is under question: yours is not political; whilst theirs is.

The government were specifically requesting that speech critical of them should be removed or deprioritised by the algorithm.

We’re talking speech critical of the government’s response to COVID; speech critical of how elections were handled; speech promoting true information that is harmful to the government bureaucracy’s favoured candidate.

Even speech promoting vaccine hesitancy should be viewed as political in this context given the government’s heavy handed advocacy, and often enforcement, of it.

So yes, there possibly are exceptions where the government can request that 1st amendment protected speech is better managed by private institutions that host that speech. However, they should not be setting up formal, secret networks to monitor speech in general, due to the potential for abuse, and should not be requesting political speech, critical of the government or promoting candidates or policies contrary to the government’s own, in particular.

Does the government have to send in the troops and declare martial law before it can send a series of strongly worded emails to social media companies asking them to stop the madness?

And moreover, if the social media companies decided that they were going to tweak the algorithms solely to make it so that shoplifting content could not go viral, but still could be viewed by your friends and by direct link, is that really that much censorship?

I don't think very many people would object to the government reaching out to say, "please stop people from advocating illegal activity". I will grant that there's a principled very strong form of speech rights that someone could adhere to that would go this far, but it doesn't seem like all that tough of a test to draw a line between viewpoint discrimination and advocating illegal activity. There is probably somewhere that this gets fuzzy (what about telling people that jaywalking isn't dangerous?) but seems pretty far from where the government is asking that line to be drawn.

I suppose the steelman version of the strong form of speech rights in that case would be saying, "the government can't suppress the speech, but you absolutely can inform people that thieves will be dealt with harshly and then prove it with your actions". That seems suboptimal to me, but realistically, it probably would handle the problem without needing to have private backchannels to social media companies.

Generally, if the government wants to compel a private company to do something, it can file suit or obtain a court order. For all the flaws and abuses of that system, it is, at least, a system, and a check. In this case, government officials were running around "asking" social media companies to censor without any checks whatsoever.

The flip side is that they didn't have the power of a court order to enforce their ask either. No checks on the issuance, but no heft behind compliance either.

You’re kind of dodging the hypothetical. Petty criminals influenced by social media are destroying society. It’s protected speech so no court orders against the platform are available. How many, “in the department’s opinion, these memes are existentially damaging to the fabric of the national economy,” e-mails is the government allowed to send before it becomes illegal?

Why not simply bring down the force of law on these petty criminals for the crimes they are actually committing, rather than this chicanery about nudging social media?

It’s protected speech

How do you propose pro-crime posts "become illegal" if you imagine that they're protected speech, and that court orders can't be used? It seems, in fact, that if these posts are protected speech then it's exactly when we would want a court involved -- only the courts could stand up to government overreach against Constitutional rights.

I think your scenario breaks down far before the government has to censor it -- the government has lots of tools at its disposal before resorting to censorship. (Just as in the real example of Corona, the government had lots of tools available to induce vaccines without resorting to etc.) But in this hypothetical, if people are making protected speech: then no, the government can't censor it, or ordered it censored by third parties. Both sides in this case, in fact, acknowledge that it would be illegal for the government to do directly what it's asking third-parties to do on its behalf.

And by "asking" it was much in the way of Don Corleone... "Nice social media company you have here. Shame if we were to have to...regulate it".

Even if the petitioners win is it going to meaningfully impact what the government can do or are they just going to find work arounds like in the affirmative action decision. Presumably, the government is allowed to write to a newspaper and say I disagree with this OpEd/article here is our opinion on the matter as long as they make no demands or threats. Now if the courts say to the government you are not allowed to make requests for censorship then the government has the option to just ping the social media companies saying, "BillyBob made this post stating X our opinion is Y". Certainly, this is an improvement but maybe the end result ends up being the same with social media companies assuming there is some kind of implicit threat or demand. Though, I think some of the requests were already using a dodge around explicit censorship. For example they were saying, "BillyBob made this post stating X and this appears to violate your terms of service". So not explicitly asking them to censor BillyBob but bringing to the attention of the company that BillyBob may have been violating the terms of service for the social media site. If the court comes up with something to prevent this then maybe it will also be a solution to other work arounds the government might come up with.

What adverse action did the government take against those platforms that did not comply with its requests? More generally when a friend or family says to you that it would be good for you to do X or that they would like you to do X, do you understand them to be threatening to coerce you to do X? Apparently in this case we are to understand that the government coerced social media companies to do X even when the government took no adverse action when the social media companies did not obey and we do not ordinarily understand the forms of communication the government used as carrying the threat of coercion. Remarkable!

Aguinaga is actually more conciliant in response than what I believe - yes, when the FBI reaches out to you and says, "we think it would be good if you did X", it is always coercive. The nature of the FBI is that it does not have the ability to merely encourage - every single thing that comes as a "suggestion" from the FBI is inherently coercive to a private party. Thinking otherwise seems like an example of someone that is so lawbrained that they're unable to relate to the experience of a private individual interacting with a powerful federal agency.

I assume this extends to requests by the government? If so I think I'd be alright with it but SCOTUS will never go for it. Abolishing the notion of a consensual search for Fourth Amendment purposes would be quite radical.

In addition to what was already said.

Elon Musks losts $50 billion to Delaware Chauncery ruling from a judge appointed by a Democrat. And he’s the worst behaving censor in charge of a social media company. And of course Donald Trump got $500 million in charged from a NYC court.

These are indirect and perhaps non-traceable but there are examples of punishment for not staying in the good graces of the political power.

This is somewhat like the “where is the fraud” in the 2020 election. And just citing the obvious expansion of mail-in voting.

Look at the actions taken against Musk.

  1. They cancelled SpaceX broadband contract even though SpaceX (1) hasn’t failed and (2) was well on their way to meeting the contract specs; indeed more along the most contractors.

  2. They investigated SpaceX for not hiring immigrants even though it would be almost impossible for them to do so.

  3. The FTC keeps making noises.

I could go on. None of these things by themselves are directly related to Musk buying Twitter and basically exposing the government. But they are certainly a message that Musk and others hear.

4: They made SpaceX catch a seal, strap it to a board, put headphones on it, and force it to listen to simulated rocket noises to see how distressed it would be.

Although this is arguably less about punishing musk and more the sort of silly thing that environmental rules require of many large projects.

What the fuck? Starship’s launch facility is on a sea with no seals in it.

Was there a control group, to distinguish the effect of the rocket noises from that of the board, straps, and headphones?

Is this real?

https://preview.redd.it/oqukgfw2e10c1.jpeg?width=1098&format=pjpg&auto=webp&s=b2fafaf497467f27be8152ac516d6108f2052fe5

Had to do it twice, in fact, IIRC. You can check Lex Friedman's interview with Musk for a source.

Apparently so.

More generally when a friend or family says to you that it would be good for you to do X or that they would like you to do X, do you understand them to be threatening to coerce you to do X?

My friends and family are not entities that have coercive power over me. If my employer sent me an email suggesting that it would be best if I get X done this week, I would understand it to mean that I'm taking a risk by electing to not do X. Closer still, if a police officer suggested that it would be best if I let him take a quick look around my car, I would understand that while I have the legal right to say no, I would be risking retaliation by doing so. Such retaliation would presumably be justiciable after the fact, but this would not lead me to believe that it's just a friendly suggestion about how things should go.

I assume this extends to requests by the government? If so I think I'd be alright with it but SCOTUS will never go for it. Abolishing the notion of a consensual search for Fourth Amendment purposes would be quite radical.

I certainly regard such requests as coercive. In fact, I would go so far as to say they're obviously coercive! How much coercion in an effort to induce someone to relinquish their Fourth Amendment rights is certainly an interesting question.

To put a fine point on it, I would say that anyone that doesn't understand the coercive nature of their interactions with government agents making helpful suggestions to them is verging into full quokka territory. Many or most representatives of the government might be disinclined to actually act maliciously against someone that declines to accept their advice, but quite a few people will accept the advice because of the implication.

Where exactly the line should be drawn isn't obvious to me and I wouldn't go so far as claiming that said implication means that federal government may never communicate with a social media platform, but all such communication should be made with the understanding that attempting to engage in viewpoint discrimination will be treated as a First Amendment violation. This particular case is so egregiously far from the line that there isn't even a great reason for a ruling to get close to laying out the definitive test.

Closer still, if a police officer suggested that it would be best if I let him take a quick look around my car, I would understand that while I have the legal right to say no, I would be risking retaliation by doing so

Did your folks not teach you to say no regardless? I’m genuinely flummoxed.

Yes, I am aware that best practice is saying no. Nonetheless, I'm not going to pretend that the request isn't coercive. The whole reason it works a lot of the time is the implicit coercion.

What adverse action did the government take against those platforms that did not comply with its requests?

Which platforms did not comply with the government's requests?

we do not ordinarily understand the forms of communication the government used as carrying the threat of coercion

What exactly do you think government is for?

Which platforms did not comply with the government's requests?

Most of them did not comply with the government's requests at least some of the time

What is more, the record shows that platforms routinely declined to remove content flagged by federal officials, yet neither respondents nor the Fifth Circuit suggested that any federal official imposed any sanction in retaliation for platforms’ refusal to act as the government requested. See, e.g., C.A. ROA 23,234-23,235, 23,240-23,243, 23,245-23,256 (emails declining to remove flagged content). Indeed, the district court cited testimony that the platforms rejected half of the FBI’s suggestions. Id. at 26,561; see App., infra, 107a, 191a. And Twitter entirely ceased enforcement of its COVID-19 misinformation policy in November 2022, yet suffered no retaliation. C.A. ROA 22,536.

What exactly do you think government is for?

The government does lots of things that are not directly coercive. I am sure you can come up with some examples.

Indeed, the district court cited testimony that the platforms rejected half of the FBI’s suggestions. Id. at 26,561; see App., infra, 107a, 191a.

It's amazing what happens if you follow citations within a single paper: 107a:

According to the Plaintiffs’ allegations detailed above, the FBI had a 50% success rate regarding social media’s suppression of alleged misinformation, and it did no investigation to determine whether the alleged disinformation was foreign or by U.S. citizens. The FBI’s failure to alert social-media companies that the Hunter Biden laptop story was real, and not mere Russian disinformation, is particularly troubling.

191a:

But, the FBI’s activities were not limited to purely foreign threats. In the build up to federal elections, the FBI set up “command” posts that would flag concerning content and relay developments to the platforms. In those operations, the officials also targeted domestically sourced “disinformation” like posts that stated incorrect poll hours or mail-in voting procedures. Apparently, the FBI’s flagging operations across-the-board led to posts being taken down 50% of the time.

Bizarrely, they don't cite the page where this actually first comes up, where instead:

65:

Chan testified the FBI had about a 50% success rate in having alleged election disinformation taken down or censored by social-media platforms.426

Cite 426 instead points to the FBI's agent's deposition, here, page 167. And it says instead that:

Q. But you received reports, I take it, from all over the country about disinformation about time, place and manner of voting, right?

A. That is -- we received them from multiple field offices, and I can't remember. But I remember many field offices, probably around ten to 12 field offices, relayed this type of information to us.

And because DOJ had informed us that this type of information was criminal in nature, that it did not matter where the -- who was the source of the information, but that it was criminal in nature and that it should be flagged to the social media companies. And then the respective field offices were expected to follow up with a legal process to get additional information on the origin and nature of these communications.

Q. So the Department of Justice advised you that it's criminal and there's no First Amendment right to post false information about time, place and manner of voting?

MR. SUR: Objection on the grounds of attorney-client privilege --

MR. SAUER: He just testified --

MR. SUR: -- and work product issues.

MR. SAUER: That's waived. He just told him what -- he just described what DOJ said, and I'm asking for specificity.

MR. SUR: I am putting the objection on the record.

Q. BY MR. SAUER: You may answer.

A. That was my understanding.

Q. And did you, in fact, relay -- let me ask you this. You say manner of voting. Were some of these reports related to voting by mail, which was a hot topic back then?

A. From my recollection, some of them did include voting by mail. Specifically what I can remember is erroneous information about when mail-in ballots could be postmarked because it is different in different jurisdictions. So I would be relying on the local field office to know what were the election laws in their territory and to only flag information for us. Actually, let me provide additional context. DOJ public integrity attorneys were at the FBI's election command post and headquarters. So I believe that all of those were reviewed before they got sent to FBI San Francisco.

Q. So those reports would come to FBI San Francisco when you were the day commander at this command post, and then FBI San Francisco would relay them to the various social media platforms where the problematic posts had been made, right?

A. That is correct.

Q. And then the point there was to alert the social media platforms and see if they could be taken down, right?

A. It was to alert the social media companies to see if they violated their terms of service.

Q. And if they did, then they would be taken down?

A. If they did, they would follow their own policies, which may include taking down accounts.

Q. How about taking down posts as opposed to the entire account?

A. I think it depends on how they interpreted it and what the content was and what the account was.

Q. Do you know what the -- do you know whether some of those posts that you relayed to them were acted on by their content modulators?

MR. SUR: Objection; vague and ambiguous.

THE WITNESS: So from my recollection, we would receive some responses from the social media companies. I remember in some cases they would relay that they had taken down the posts. In other cases, they would say that this did not violate their terms of service.

Q. BY MR. SAUER: What sort of posts were flagged by you that they concluded did not violate their terms of service?

A. I can't remember off the top of my head.

Q. I mean, I take it they would all have a policy against just posting about the wrong time that the poles opened, right? Or the wrong date to mail your ballot?

A. That would be my assumption, but I do remember, but I can't remember the specifics as to why. But I do remember them saying that certain information we shared with them did not result in any actions on their part, but I can't remember the details of those. They were not frequent, but I do remember that they occurred.

Q. In most cases when you flagged something, it was taken down?

A. In most cases -- let me rephrase that. In some cases when we shared information they would provide a response to us that they had taken them down.

Q. Got you. Same as the -- go ahead.

A. I would not say it was 100 percent success rate. If I had to characterize it, I would say it was like a 50 percent success rate. But that's just from my recollection.

So an FBI agent at one particular office on one particular topic for one particular short period of time, if forced to characterize it, would say "it was like a 50% success rate" -- but only after saying that non-action was not-frequent.

Chan testified the FBI had about a 50% success rate in having alleged election disinformation taken down or censored by social-media platforms.426

I'm a bit skeptical of Missouri's position here, but this can't be it -- the government can't insulate itself against the claim here just by padding their requests with an extra meritless set of equal size and then say "see -- they turned down half of it!"

That's a metric that's just begging to be gamed.

The government does lots of things that are not directly coercive. I am sure you can come up with some examples.

Depending on what your preferred political theory is, no the government does not do anything that isn't directly coercive. Everything the government does relies on taxes, which a libertarian or anarchist believes are coercive in and of themselves.

More generally when a friend or family says to you that it would be good for you to do X or that they would like you to do X, do you understand them to be threatening to coerce you to do X?

Relationship between the government and its subjects is inherently hierarchical. To put it another way, a power imbalance exists. So the correct comparison would be parents and teachers, rather than brothers and friends.

Ok. I similarly think it is possible for parents and teachers to suggest that I do something or that doing something would be good for me without an implied threat of coercion.

MR. FLETCHER: So there's a lot packed in there. I want to give you one very specific answer first and then step back out to the proper context. So specifically you mentioned demanding an answer right away and cursing them out. The only time that happens is in an email that's about the President's own Instagram account. It's not about moderating other people's content.

Here's the context Fletcher is trying to maneuver around. It's far from the most egregious stretch of the duty of candor to the court, but it's a pretty overt example of reframing the argument away to what he wants it to be, rather than what was asked, and it's not even honest at that.

I'm hoping that it will be a narrow ruling, with Roberts spearheading a tailoring doctrine that focuses on the putative lack of traceability and distinguishes between coercion as unacceptable, but strong encouragement being fine.

Maybe they'll try to split the baby between this case and Vullo, but like punting on Remington v Soto it just invites massive efforts. Even if coercion is officially banned, if the jawboning in this case isn't enough to be coercion, it'll be so impossible to actually prove traceability or coercion that the protection will be meaningless.

And the more morbid revelation is that it's probably pretty meaningless even if they do rule expansively. If Missouri wasn't funding this case, or if the bad actors has tried even slightly harder to keep the worst (discoverable) behavior to phone, it wouldn't be getting anywhere; Vullo only got as far as it did because whistleblowers (allegedly) provided specific details about tiny closed-door meetings. No one's going to do something similar against Gumroad. The courts aren't built for fishing expeditions, even if anyone can spot the fins with the naked eye and there's a constant Jaws theme in the background.

if the bad actors has tried even slightly harder to keep the worst (discoverable) behavior to phone

Like in Operation Choke Point. Obama administration made sure to have in person meetings with bank leadership and not write anything down. In order to defeat discovery. The public found out eventually, Congress forced them to testify regarding their malfeasance, etc. But no one was punished. They must be doing this a lot and usually getting away with it.

The printed media part is really telling. The print media have managed to maneuver themselves into a position wherein the government (probably rightly) doesn't feel it can get away with pressuring them to remove, say, a "factually incorrect" op-ed. I can't see the government being stupid enough to try do such a thing, and if it did I can't see it ever winning if it were taken to court. Self-crafted narratives about journalism being the nation's immune system against tyranny mean that journalists enjoy a much more generous interpretation of the First Amendment than plebs. When plebs say something "factually incorrect" according to the feds, it's not only within the government's rights to try to suppress that speech, it might even be their duty (it's impressive how consistently bad KBJs opinions are btw). This journalist/pleb distinction afaik doesn't exist in the constitution but here we are. If twitter anons had just written op-eds instead, even in a pop-up right-wing twitter website formatted like a newspaper I bet this case would be perceived very differently.

Also, the traceability argument is very strange. Does the First require the government to be successful in its attempts to limit speech or is the attempt enough? The former seems ridiculous and not at all in keeping with precedent. If the government throws someone in jail to stop their speech, but they keep espousing the same view in jail, or even if being imprisoned Streisand effect's their speech to greater prominence, that would still be an obvious 1A violation despite the government's actions not limiting their speech and perhaps even promoting it. Surely if the government takes an action intending to limit speech that would be illegal if successful, it must also be illegal if unsuccessful.

I'm not sure if the likely bad ruling is because of the desire to not feed the "rogue reactionary court" narrative, because of a general view that allowing the unwashed masses to say things online is so dangerous that the danger of allowing it outweighs the law itself, or because it's ruled that Covid was such a special circumstance that the law doesn't apply. None of these seem like good reasons to me. I'm considering going into law and think constitutional stuff could be interesting, but seeing how SCOTUS cases actually go is depressing.

If twitter anons had just written op-eds instead, even in a pop-up right-wing twitter website formatted like a newspaper I bet this case would be perceived very differently.

Because it would never have happened in the first place. The lawsuit was filed because the government successfully pressured social media sites into censoring regime-critical opinions. A newspaper or journalistic outfit, even a very thoroughly regime aligned one, would have told the government to F off. This isn’t Europe; they can totally do that even if they later get nailed for some technical tax issue that no one in history has ever been prosecuted for. You’ll notice Fox News isn’t at the center of this case.

It’s a form of harassment. The newspaper or TV network is happy to go to court against the government; indeed it’s a great story if Fox News or the Wall Street Journal can regularly update its readers on the government’s attempted censorship of its journalists.

But for Meta, which doesn’t really make any money from news (barring some meager ad sales on news videos), government attention is only negative. Zuck didn’t have to fold, but at the same time, Zuck doesn’t want to waste half his year in endless hearings at the FTC or in whichever congressional chamber the Dems have a majority.

Also, the traceability argument is very strange. Does the First require the government to be successful in its attempts to limit speech or is the attempt enough? The former seems ridiculous and not at all in keeping with precedent.

This is another one where I thought Aguinaga knocked it out of the park:

JUSTICE KAVANAUGH: What do you do with the fact that the platforms say no all the time to the government?

MR. AGUIÑAGA: Your Honor, it doesn't matter. I think Judge Posner made this -- this point in Backpage versus Dart, which is you could have a threatener who threatens the recipient, the recipient says no, and so the threatener packs their tent and walks away. That's still a First Amendment violation even though the recipient refused to comply.

...

I'm considering going into law and think constitutional stuff could be interesting, but seeing how SCOTUS cases actually go is depressing.

When I explain these sorts of cases to my wife, she asks why I'm not interested in doing law, and every time, I wind up answering that this is exactly why I don't want to! You can have a case that just seems obviously, incontrovertibly correct, but if you've got a justice that already decided what they'd like to do, it's not very hard for them to use brilliant legal reasoning to do what they want to do.

You can have a case that just seems obviously, incontrovertibly correct, but if you've got a justice that already decided what they'd like to do, it's not very hard for them to use brilliant legal reasoning to do what they want to do.

Not a lawyer, but I think this is much less of an issue in the day-to-day practice of law than when one's arguing novel and politically charged issues in front of the Supreme Court, or even in the kinds of court cases that you hear about in the news.

You can have a case that just seems obviously, incontrovertibly correct, but if you've got a justice that already decided what they'd like to do, it's not very hard for them to use brilliant legal reasoning to do what they want to do.

I came to the same conclusion a long time ago. Think of cases where an employee for a company was doing something stupid in violation of all OHSA, safety protocols, policy and direct orders from their manager. The employee now has a disability/requires ongoing expensive medical care. A judge will often twist the law into a pretzel to justify giving the employee money because the employee needs money to live and the company is involved and has money. Simple as that. Legalese is just the obfuscating ink cloud to provide some plausible deniability for the erroneous judgment.

You can have a case that just seems obviously, incontrovertibly correct, but if you've got a justice that already decided what they'd like to do, it's not very hard for them to use brilliant legal reasoning to do what they want to do.

Probably the most frustrating aspect of legal practice when you're autistically determined to reach the 'right' conclusion as a matter of law.

You can come armed to the teeth with precedent, facts, and legal argumentation and if you run into a Judge who is dead set on ruling a certain way you can 'lose' when they either rely on some particularly ambiguous precedent or some esoteric dissent or some novel legal concept they pulled straight from thin air (or read in a creative law review journal).

The Spirit of Aloha, for example.

Hence why I prefer when the Supreme Court sets out rules that at least sort of tie the law to something tangible and mostly immovable, rather than trying to weave increasingly intricate webs of reasoning to maintain an increasingly farcical standard which keeps collapsing when it comes into contact with the real world.

To be fair to Hawaii's Supreme Court, the spirit of aloha is a state legal standard established by statute in 1986. To be fair to anyone reading, normally statutes don't override constitutions, and this is definitely an example of a statute so hilariously vague that it's given judges a blank check to decide whatever they want.

Yep, quite fair.

I'm not even mad that they cite it, rather that the promulgate the idea that it can override constitutional rights and effectively grant the government extra authority if it argues for it artfully enough.

I'd be okay, on the other hand, referring to the "The Spirit of the Revolution" embodied by the Declaration of Independence as a justification for ignoring government restrictions in most cases.

I'm not sure if the likely bad ruling is because of the desire to not feed the "rogue reactionary court" narrative, because of a general view that allowing the unwashed masses to say things online is so dangerous that the danger of allowing it outweighs the law itself, or because it's ruled that Covid was such a special circumstance that the law doesn't apply.

It's because conservatives are generally in favor of censorship (which I suppose is closest to your "unwashed masses" suggestion), and leftists are generally in favor of censorship of the right. So we get a First Amendment that only applies to left-wing views. I'm sure if the government pressure in this case had been over information about how kids can access resources on queer sexuality, there'd be 3 more votes for "no you can't do that".

they were also getting their news from the print media and the broadcast media and cable media, and I just can't imagine the federal government doing that to them. But maybe I'm naive. Maybe that goes on behind the scenes. I don't know. But I -- I -- it struck me as wow, this is not what I understand the relationship to be. That's all.

I think Alito is slightly over egging this point. The US government absolutely does pester and bully 'established print and broadcast media' into supporting government policy. The CIA and White House directly fed the entire press pro-Iraq War talking points in 2003.

More recently, the owner and publisher of the New York Times, AG Sulzberger, said the White House was "extremely upset" with their coverage of Biden's cognitive decline, presumably because as the liberal newspaper of record, this was reaching donors, officials and other elites. How was that "extreme upset" conveyed if not, as it almost certainly was, by some senior administration official calling up Sulzberger or his editor-in-chief and complaining personally about it? In fact, I'd be very surprised if such a thing had not occurred.

The difference between the administration's pressure on the NYT and their pressure on Facebook is more likely to be the fact that the administration's leverage over the NYT is limited, and if anything the NYT can likely do more harm to Biden than the inverse. Biden can't threaten to break up the NYT, and it's too important to his elite voters and donors for him to be able to touch it. He can threaten to break up Meta, which at best means long and expensive antitrust investigations and endless summons for management to appear in Washington.

As a result, Zuck is much more likely to be willing to sacrifice principles to get the state off his back than Sulzberger is, especially because news isn't central to his business.

I agree that the government theoretically has more leverage over Facebook than the NYT. But what exactly do you think would have happened had Bill Barr requested Facebook censor anti-trump stories because there was an anti-trust investigation raring to go?

Presumably, Facebook's lawyers would correctly have surmised that California / the 9th circuit going apeshit on them for being too close to Trump posed more of a threat than ignoring Barr and the rest of Trump's impotent executive. Biden doesn't have power by himself, he has power because he sits at the (nominal) head of a vast state and federal infrastructure of progressive/Dem policy and governance.

The way Alito framed it, I almost wondered if he was trying to goad the government into claiming that it actually has the same right to bully and coerce news outlets.

They did get into the difference between platforms a bit later:

MR. AGUIÑAGA: Yeah, and I would say, in the mine-run case that you're describing to me, it's the government going after the speaker itself and trying to get them to change their speech. What's so pernicious here is that you don't see any of these facts in this record unless we get discovery, which is when -- when Rob Flaherty, who's Deputy Assistant to the President, sends an email to Facebook or to Twitter and complains that they're not doing enough to censor what they view as vaccine hesitancy speech. America never sees that. And the third party, people like Jill Hines and -- and Jim Hoft, whose speech wishes to express the kinds of viewpoints that the White House is targeting, they never know that that's happening behind the scenes. And I think it makes a difference, Justice Kagan, that you have an intermediary here who really has no incentive to itself defend Jim Hoft's speech or to defend Jill Hines's speech. In The New York Times's hypothetical, you have a story, a publication that itself is familiar with those kinds of --

JUSTICE KAVANAUGH: Well, what about op-eds?

JUSTICE KAGAN: I mean --

JUSTICE BARRETT: Don't you think --

JUSTICE KAVANAUGH: What about op-eds?

MR. AGUIÑAGA: Your Honor, with op-eds, you know, if it's third-party speech that -- that has that issue --

JUSTICE KAVANAUGH: That happens too, right?

MR. AGUIÑAGA: And I guess there are a number of ways I would think about that, Your Honor. One is, if the newspaper declines to run an op-ed because the government asked, that op-ed author can go to any number of other publications and it has an outlet. It's not the same here because, if I'm on Twitter and I wish to express a viewpoint that the government wishes to censor and Twitter bows to that pressure, then --

JUSTICE KAGAN: But if one --

MR. AGUIÑAGA: -- I lose my account.

I almost wondered if he was trying to goad the government into claiming that it actually has the same right to bully and coerce news outlets.

It would be in character, right? I guess it was too much to hope that we'd get another win that easily, though.

"You can't handle the truth!

Son, we live in a world that has mass media, and those media have to be guarded by men with banhammers. Who's gonna do it? You? You, Justice Alito? I have a greater responsibility than you can possibly fathom. You weep for the publisher, and you curse the Congress. You have that luxury. You have the luxury of not knowing what I know -- that chilling effects, while tragic, probably saved elections; and my existence, while grotesque and incomprehensible to you, saves elections.

We use words like "fact-checking," "regulation," "trust." We use these words as the backbone of a life spent defending something. You use them as a punch line."

"Would you order the book ban?"

"I do the job..."

"Would you order the book ban!!?"

"YOU'RE GODDAMN RIGHT I WOULD!"

What is this place?

This website is a place for people who want to move past shady thinking and test their ideas in a court of people who don't all share the same biases. Our goal is to optimize for light, not heat; this is a group effort, and all commentators are asked to do their part.

The weekly Culture War threads host the most controversial topics and are the most visible aspect of The Motte. However, many other topics are appropriate here. We encourage people to post anything related to science, politics, or philosophy; if in doubt, post!

Check out The Vault for an archive of old quality posts. You are encouraged to crosspost these elsewhere.


Why are you called The Motte?

A motte is a stone keep on a raised earthwork common in early medieval fortifications. More pertinently, it's an element in a rhetorical move called a "Motte-and-Bailey", originally identified by philosopher Nicholas Shackel. It describes the tendency in discourse for people to move from a controversial but high value claim to a defensible but less exciting one upon any resistance to the former. He likens this to the medieval fortification, where a desirable land (the bailey) is abandoned when in danger for the more easily defended motte. In Shackel's words, "The Motte represents the defensible but undesired propositions to which one retreats when hard pressed."

On The Motte, always attempt to remain inside your defensible territory, even if you are not being pressed.


New post guidelines

If you're posting something that isn't related to the culture war, we encourage you to post a thread for it. A submission statement is highly appreciated, but isn't necessary for text posts or links to largely-text posts such as blogs or news articles; if we're unsure of the value of your post, we might remove it until you add a submission statement. A submission statement is required for non-text sources (videos, podcasts, images).

Culture war posts go in the culture war thread; all links must either include a submission statement or significant commentary. Bare links without those will be removed.

If in doubt, please post it!


Rules


Recommended Posts And Communities

Recommended Realtime Chats