By: Noah Rothman – nationalreview.com –
On Independence Day, federal Judge Terry Doughty issued a national injunction preventing federal entities from corresponding with social-media firms for “the purpose of urging, encouraging, pressuring or inducing in any manner the removal, deletion, suppression or reduction of content containing protected free speech.”
Doughty’s ruling does make some important exceptions: Government officials and social-media firms are still allowed to share information and exchange recommendations regarding criminal activity and issues that relate to national security. But beyond that, Doughty erred on the side of free expression and a maximalist interpretation of what constitutes governmental coercion.
Joe Biden’s Justice Department has vowed to appeal, and Doughty’s order may not entirely survive the scrutiny of higher courts. But either way, the reaction the decision has produced deserves closer examination, because it suggests the disinformation industry’s days are numbered.
Some objections to Doughty’s injunction are likely to get a favorable hearing from courts tasked with reviewing its logic. Civil-liberties attorney Jameel Jaffer warned that the order could be construed as prohibiting government officials from even criticizing social-media companies in public. But most of the legal scholars and First Amendment activists who took issue with the ruling resented the extent to which it confuses governmental notifications relating to objectionable speech with the application of coercive power. That is precisely the issue that deserves to be litigated, as so many of this ruling’s critics inadvertently confessed.
“The government should be able to inform social-media companies about things that they feel are harmful to the public,” University of California Santa Barbara professor Miriam Metzger told the New York Times. While many of the Times’s sources said Doughty’s ruling confuses governmental nudging with the policing of private speech, which is performed almost exclusively by private actors, others who spoke with the Times did confess that the executive branch’s mere suggestions carry extra weight. “Platforms are very good at ignoring civil-society organizations and our requests for help or requests for information or escalation of individual cases,” said PEN for America’s digital-safety director, Viktorya Vilk. “They are less comfortable ignoring the government.” Precisely.
As CNN White House correspondent Phil Mattingly acknowledged in comments flagged by Jonathan Turley, the Biden White House “would regularly reach out to Twitter and Facebook and other companies in kind of the early stages of their Covid response and say, ‘This person is spreading lies about vaccines, this account is spreading misinformation that is inhibiting — not just our efforts, the administration’s efforts to address Covid — but also public health. Do something about it.’” Mattingly added that “more often than not,” social-media companies found the administration’s arguments convincing — a rate of compliance that is suggestive of the influence of the White House more than its powers of persuasion. As for what constitutes governmental coercion, there is a history of jurisprudence that views state-sponsored activities that are neither mandatory nor conditional as nevertheless coercive. The Supreme Court’s conservative justices have long objected to this expansive standard, but it’s not their standard to defend.
These legal arguments ornament what so many of this ruling’s dissenters expose as, at root, appeals to their own authority. This decision “deals a huge blow to vital government efforts to harden U.S. democracy against threats of misinformation,” legal scholars Leah Litman and Laurence Tribe asserted. The “opinion seems to maintain that the government cannot even politely ask companies not to publish verifiable misinformation.” Duress is obviously a subjective condition, but a request from an entity with a legal monopoly on the use of force carries added authority, the relative politeness of the entreaty notwithstanding.
“It’s bananas that you can’t show a nipple on the Super Bowl but Facebook can still broadcast Nazi propaganda, empower stalkers and harassers, undermine public health, and facilitate extremism in the United States,” one activist told the Times in language so juicy the outlet ran with it as the conclusion of one dispatch on Doughty’s ruling. After all, social media are today the “primary vector for hate and disinformation in society.” This is a lot of bombast to apply to the distinction between FCC-regulated interstate and international communications and private broadcast mediums. This activist conveys his anger but at the expense of a cogent argument.
Maybe the most revealing of the objections the Times accumulated were those that dispensed with all this pretense and issued only narrow appeals to the self-interests of the disinformation industry. Warning of the “chilling effect” this decision could have on the entire information-policing enterprise, the Times fretted that the ruling could dissuade young scholars from pursuing a career in disinformation research, and it will almost certainly close the wallets of the deep-pocketed donors who fund such research efforts.
The ruling carries the message that “misinformation qualifies as speech and its removal as suppression of speech,” the Times warned. That might be more objectionable if what constitutes “misinformation” hadn’t become such a fluid category. So much of the commentary around this ruling sidesteps the fact that the apparatus dedicated to policing disinformation is filled with charlatans. It has proven itself a slave to fashion and uniquely susceptible to pressure from public entities.
The 51 former intelligence officials who insisted that Hunter Biden’s laptop was the work of an absurdly sophisticated Russian espionage operation, none of whom have expressed any remorse, directly led social-media companies to throttle the public’s access to legitimate and relevant news in relation to its discovery. Aggressive efforts to police the discourse during the Covid era suffered the same hubris-fueled flaws. Masking was unnecessary until it was mandatory. Then, it once again became worthless. Those who questioned America’s commitment to keeping schools shuttered longer than anywhere else in the developed world or balanced the benefits of naturally acquired immunity against the efficacy of immunization were subject to overt and covert efforts to limit the public’s access to their thoughts.
So many of our understandings evolved over that period along with the dynamism of the pandemic itself. But the preferred assumptions at any given time were often reinforced through the application of irresistible social pressure. The federal government didn’t create that pressure, but it capitalized on it to advance its own conceptions of what constituted a proper public-health regime.
Doughty’s ruling establishes the federal government’s “extensive contact with social-media companies via emails, phone calls, and in-person meetings.” It couples this with “public threats and tense relations” between the Biden White House and America’s social-media giants as the predicate for “an efficient report-and-censor relationship.” It finds that the plaintiffs established “a causal and temporal link” between the government’s actions and “the social-media companies’ censorship decisions.” And it concludes that the government encouraged “viewpoint discrimination,” which would not have occurred absent government pressure.
It’s not its critics but the disinformation policing industry’s champions who argue that their authority is imperiled if their judgments are not backed by the implied force of the public sector. Yes, higher courts may take issue with the sweep of this ruling. But its substance and the reaction it has produced from those who will now be reduced to making sound arguments against the assertions they believe constitute misinformation suggest the jig is finally up.
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