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Culture War Roundup for the week of March 18, 2024

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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.


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


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.