The Government, Big Tech and Free Speech, Round Two

The Supreme Court considers if government can coerce social-media platforms to censor content it doesn’t like.

WSJ editorial. 

"The Supreme Court is back on the First Amendment beat Monday when it hears cases asking whether government officials can jawbone businesses to restrict speech. It seems government needs remedial constitutional training.

In Murthy v. Missouri, states and individuals whose posts on Covid were censored sued federal officials for violating the First Amendment. Lower courts ruled for the plaintiffs based on copious evidence that government officials pressured social-media platforms to suppress their posts.

Former White House director of digital strategy Rob Flaherty and Covid adviser Andy Slavitt flagged posts for removal to social-media employees and berated them if they didn’t follow orders.

Facebook

is “hiding the ball” on its efforts to combat vaccine “borderline content,” Mr. Flaherty wrote in one email.

Mr. Flaherty also blamed Facebook for the Jan. 6, 2021, riot and said it would be blamed for Covid deaths if it didn’t increase censorship. “I care mostly about what actions and changes you are making to ensure you’re not making our country’s vaccine hesitancy problem worse,” Mr. Flaherty wrote.

Officials reinforced these private lashings with public threats. Former White House press secretary Jen Psaki said platforms could face “legal consequences” if they didn’t censor vaccine “misinformation.” White House officials floated antitrust action and eliminating Section 230 liability protections.

The Justice Department claims this bullying is merely government speech protected by the First Amendment. “So long as the government seeks to inform and persuade rather than to compel, its speech poses no First Amendment concern—even if government officials state their views in strong terms,” the Solicitor General writes.

But Biden officials weren’t merely out to persuade. The Fifth Circuit Court of Appeals concluded that Biden officials crossed the line by using threats of legal action. The appellate judges cited the Supreme Court’s Blum (1982) precedent, which held that government is responsible for actions of private parties when it provides “significant encouragement,” meaning “‘[s]omething more’ than uninvolved oversight from the government.”

The Fifth Circuit also cited Bantam Books (1963), in which a Rhode Island state-created commission asked book distributors and retailers for their “cooperation” in removing books it deemed objectionable. Police followed up with retailers to ensure they complied. The commission said it was merely exhorting booksellers.

But the Justices held that the government had violated the publishers’ speech rights. They analyzed the tone and phrasing of the commission’s exhortations as well as government’s legal authority and threat to punish distributors. Much as the Rhode Island commission’s notices were “phrased virtually as orders,” so were the Biden team’s communications with platforms.

***

The second case the Court hears Monday (NRA v. Vullo) concerns whether the First Amendment allows government officials to threaten sanctions against regulated entities that do business with a political advocacy group they don’t like. The obvious answer is no, but New York says jawboning is protected government speech.

In 2018 New York state’s then Superintendent of the Department of Financial Services, Maria Vullo, directed financial institutions she regulated to stop doing business with gun-rights groups. Her letters “encourage[d]” financial institutions to evaluate and manage the “reputational risks” of doing business with the groups.

She also threatened financial institutions with penalties for unrelated regulatory infractions, which she said they could escape if they severed ties with the National Rifle Association. Nice business you have there. Terrible if something happens to it.

Drawing on Bantam Books, a federal judge said Ms. Vullo’s threats plausibly violated the First Amendment by punishing the NRA’s advocacy. But the Second Circuit Court of Appeals held that Ms. Vullo acted properly within her remit as a regulator. That ruling is a license for partisans to abuse their regulatory power to silence opponents. Texas’s medical licensing board could, say, threaten to yank licenses of doctors who donate to pro-abortion groups.

A bedrock constitutional principle holds that government can’t coerce private parties to do what government cannot do on its own. The High Court on Monday can reaffirm this emphatically."

The Biden Administration’s Assault on Free Speech

Emails paint a picture of a White House running roughshod over First Amendment protections

By Philip Hamburger and Jenin Younes. Mr. Hamburger teaches at Columbia and is CEO of the New Civil Liberties Alliance, which represents plaintiffs in Missouri v. Biden and Changizi v. HHS. Ms. Younes led the litigation in those cases for NCLA and more recently served as senior special counsel on the Weaponization Subcommittee. Excerpts:

"government officials pressured social-media companies to censor posts unfavorable to the Biden administration. The White House has denied this, insisting that companies like Meta and Twitter adopted content-moderation policies on their own. But internal documents newly released by the House Judiciary Select Subcommittee on Weaponization of the Federal Government prove that government pressure led Meta to go beyond what it otherwise would have in censoring user speech."

"the White House strong-armed platforms into more censorship than they considered justified—prompting the judge to declare that the administration had made “arguably the most massive attack against free speech in United States’ history.” The new documents go further, showing that the administration drove much of Meta’s censorship. 

In April 2021, Facebook (now Meta) executive Nick Clegg wrote to the company’s leaders, Mark Zuckerberg and Sheryl Sandberg: “We are facing continued pressure from external stakeholders, including the White House and the press, to remove more COVID-19 vaccine discouraging content” (emphasis in original). Mr. Clegg recounted a conversation he had with Andy Slavitt, then White House senior adviser for the Covid response. Mr. Clegg wrote that Mr. Slavitt was “outraged” that Facebook hadn’t taken down a meme, which joked that 10 years from now trial-lawyer commercials would be soliciting the vaccinated to seek damages. When Mr. Clegg protested that the administration was making “a significant incursion into traditional boundaries of free expression,” Mr. Slavitt (according to Mr. Clegg) dismissed such First Amendment concerns on the ground that the objectionable meme “inhibits confidence in Covid vaccines.” This prompted Mr. Clegg to comment to his colleagues that “given what is at stake here,” the company should “regroup to take stock of where we are in our relations with the WH, and our internal methods too.”

Meta acquiesced to the administration’s pressure. An internal Aug. 2, 2021, email from a Facebook employee on the Trust and Safety Team noted: “Leadership asked Misinfo Policy and a couple of teams on Product Policy to brainstorm some additional policy levers we can pull to be more aggressive against Covid and vaccine misinformation. This is stemming from the continued criticism of our approach from the US administration and a desire to kick the tires further internally on creative options.”"

"the company increased its censorship under administration pressure. After discussing “our response to the Surgeon General on COVID-19 misinformation,” another employee on the Trust and Safety team wrote, “we agreed to further explore four discreet policy options for reducing the prevalence of COVID-19 misinformation on our platforms.” Those policies targeted 12 individuals known as the “Disinformation Dozen” and were implemented on the platform shortly after the Aug. 2 email, resulting in removal of these accounts and many others.

At the government’s behest, Facebook also adopted a policy of removing posts discussing the lab-leak theory."

"Supreme Court doctrine makes clear that government can’t constitutionally evade the amendment by working through private companies."

"If the appellate courts fail to recognize the spurious nature of the government’s position, the First Amendment might as well be a dead letter."

"Our government has established a vast system of censorship. By keeping it largely secret, it has been able to exert unconstitutional control over medical, scientific and political speech, suppressing debate over questions of great public importance."

Facebook Bowed to White House Pressure, Removed Covid Posts

Internal Meta emails say pressure from Washington was behind a decision to take down posts attributing pandemic to man-made virus

By Ryan Tracy of The WSJ. Excerpts:

"Facebook removed content related to Covid-19 in response to pressure from the Biden administration, including posts claiming the virus was man-made, according to internal company communications viewed by The Wall Street Journal.

The emails show Facebook executives discussing how they managed users’ posts about the origins of a pandemic that the administration was seeking to control. “Can someone quickly remind me why we were removing—rather than demoting/labeling—claims that Covid is man made,” asked Nick Clegg, the company’s president of global affairs, in a July 2021 email to colleagues. 

“We were under pressure from the administration and others to do more,” responded a Facebook vice president in charge of content policy, speaking of the Biden administration. “We shouldn’t have done it.”"

"The emails viewed by the Journal, which haven’t been previously reported, date to the spring and summer of 2021, when the White House was mounting a nationwide push for Americans to get vaccinated for Covid-19. Part of that push included a public and private campaign to get Facebook to more aggressively police vaccine-related content.

Administration officials had come to believe that many Americans were hesitant to get vaccines because of false information they saw on Facebook. “They’re killing people,” President Biden said that July. 

The tongue-lashing caused Facebook to re-evaluate its policies about Covid-19 content—discussions that involved high-level company officials including Clegg and then-Chief Operating Officer Sheryl Sandberg, the emails viewed by the Journal show. 

Following the president’s “killing people” comment, the Facebook vice president circulated a memo assessing the difference between Facebook’s content policies and the Biden administration’s demands—some of which the company appeared ready to push back on. 

“There is likely a significant gap between what the WH would like us to remove and what we are comfortable removing,” the Facebook vice president said.   

As one example, the executive listed the White House’s desire that the company take action against humorous or satirical content that suggested the vaccines aren’t safe. 

“The WH has previously indicated that it thinks humor should be removed if it is premised on the vaccine having side effects, so we expect it would similarly want to see humor about vaccine hesitancy removed,” the vice president wrote."

"In some of the emails, Facebook executives expressed concern that removing posts in which Americans expressed hesitation about getting vaccinated could actually make them less likely to get a shot.

“There may be risk of pushing them further toward hesitancy by suppressing their speech and making them feel marginalized by large institutions,” said one draft memo to Facebook leadership, included in an April 2021 email. Removing such posts could also fuel conspiracy theories about a coverup related to the safety of vaccines, the draft memo said. 

At the same time, Facebook officials appeared to feel pressure to address the White House’s concerns. As Clegg prepared to meet the U.S. surgeon general about vaccine misinformation in late July 2021, he emailed colleagues: “My sense is that our current course—in effect explaining ourselves more fully, but not shifting on where we draw the lines…is a recipe for protracted and increasing acrimony.” 

“Given the bigger fish we have to fry with the Administration—data flows etc—that doesn’t seem a great place for us to be, so grateful for any further creative thinking on how we can be responsive to their concerns,” he said.  

Facebook at the time was hoping to facilitate an agreement between U.S. and European officials allowing user data to flow across the Atlantic in compliance with privacy laws.  

By August 2021, Facebook executives were emailing each other about new planned changes to their Covid content policies. One change increased the punishments faced by users who ran afoul of content policies and had accounts on both Facebook and Instagram, another social-media platform owned by Meta, the emails show. 

For example, the company had previously removed the Instagram account of Robert F. Kennedy Jr., a vaccine skeptic now turned presidential candidate. But his Facebook account hadn’t faced the same punishment because it hadn’t posted the same content, the emails show.  

Under the new policy, Kennedy’s Facebook account wouldn’t be recommended to other users, a Facebook executive explained in an August email describing how the company was following up on the Biden administration’s requests."

A Law Prof Rationalizes a Campus Attack on Free Speech

The heckler’s veto won the day at UC Hastings

Letter to WSJ. 

"While it’s understandable that Rory Little wants to defend his students at UC Hastings (“Open Minds, Loud Voices and Cancel Culture,” Letters, March 28), he ends up twisted in logical knots. If an event that can’t be conducted because of incessant disruption doesn’t count as a cancellation, nothing does. It may well be that, “after the intermittent chanting and speaking, everyone quietly and peacefully left the room,” but that was only after I had departed—because the room’s lunch-hour reservation expired ahead of an afternoon class.

That’s the crux of the matter: This was not some speaker’s corner where opposing activists face off, but a space duly reserved by a student organization for an invited speaker (and faculty commentator) to discuss issues that are plainly germane to a law school’s mission. Constitutional law may well be “murky, inconsistent and unsettled” in many areas, but neither the First Amendment nor UC Hastings’s policies countenance a heckler’s veto. And if shouting down were protected speech, opponents of critical race theory and other progressive causes could likewise cancel events.

Moreover, Prof. Little contributed to my being silenced. He rapped the table and chanted along. He is recorded on video saying he was “all for it,” and then signed a letter reiterating support for the disrupters because “statements of commitment to diversity and inclusion ring hollow when salient issues of racial equity are ignored or discounted in the service of prioritizing the ideal of free speech.”

While I’m heartened that “the college is now engaged in constructive, if also unsettling, discussions,” that has nothing to do with me. I would have happily engaged the “message of discontent from a group of neglected and undervalued members of the community”—my tweet was racist only to someone misreading it in bad faith—but the disrupters didn’t want to hear it and, given Mr. Little’s description of the Hastings dynamic, they are being rewarded for their actions.

Ilya Shapiro

Birmingham, Ala.

Georgetown Law Center (on leave)"

Lefties Hate on Liberal Open Letter on Free Speech

But buried beneath the bilious response to the Harper's joint statement is a worthwhile argument about freedom of association.

By Matt Welch of Reason.

"On Tuesday morning, Harper's Magazine published a joint letter from 153 prominent writers, academics, and entertainers, ranging from Noam Chomsky to David Brooks, J.K. Rowling to Wynton Marsalis, Salman Rushdie to Gloria Steinem, expressing concern that "the free exchange of information and ideas, the lifeblood of a liberal society, is daily becoming more constricted."

The 532-word document is a direct response to the remarkable past six weeks or so at American media and cultural institutions, which have experienced a wave of firings, resignations, and castigations over purportedly harmful words, deeds, and sometimes costumes.

"It is now all too common to hear calls for swift and severe retribution in response to perceived transgressions of speech and thought," the signatories contend. "More troubling still, institutional leaders, in a spirit of panicked damage control, are delivering hasty and disproportionate punishments instead of considered reforms."

The list of writers crosses ideologies and oceans, ethnicities and religions, sexual preferences and genders, though the group tilts decidedly left—Vox's Matthew Yglesias and The Nation's Jeet Heer were the two names that surprised me most. There are also a whole lot of Reason contributors here, including Deirdre McCloskey, Cathy Young, Jonathan Rauch, Jonathan Haidt, Emily Yoffe, Jesse Singal, Kmele Foster, Katie Herzog, John McWhorter, Kat Rosenfield, Nadine Strossen, Laura Kipnis, Wendy Kaminer, Francis Fukuyama, and Malcolm Gladwell. (On it, too, are recent Reason interview subjects Meghan Daum, Coleman Hughes, Thomas Chatterton Williams, Steven Pinker, Bari Weiss, and Garry Kasparov.)

Arguably the most striking feature of the exercise, though, is not the breadth of the participants, nor the urgency of the campaign, but rather how the Very Online Left greeted this anodyne expression of free speech sentiment: with a withering, acidic contempt.

"The letter…is about Open Debate only to the extent that people who make very healthy salaries arguing in public for a living seem to have a bizarre aversion to being argued against," spat Gawker alum Hamilton Nolan at In These Times (other choice Nolan adjectives included "pathetic," and "almost intolerably exasperating"). "We have entered a brave new world in which those waving the banner of 'Free Speech' accuse their opponents of being unable to take criticism while waging a histrionic campaign against anyone who dares to criticize them."

It takes a certain willfulness to ignore the plain words of a statement that's all of three paragraphs long, but judging by the reactions on Twitter, Nolan's pampered-crybabies-whining-about-criticism take was as common as goose turds by a pond. Yes, there are people on the list who are probably agitated at having been the target of public shaming campaigns—the Linguistic Society of America went after Pinker just this month, and Lord knows Rowling has had quite the 2020 arguing with transgender rights activists.

But one clearly stated intent among this comparably affluent, tenured, and independent set was to pry open more expressive space for those with less protection.

"We are already paying the price in greater risk aversion among writers, artists, and journalists who fear for their livelihoods if they depart from the consensus, or even lack sufficient zeal in agreement," they write. "The restriction of debate, whether by a repressive government or an intolerant society, invariably hurts those who lack power and makes everyone less capable of democratic participation." (Emphasis mine.)

In his masterful 1993 book Kindly Inquisitors: The New Attacks on Free Thought, and especially in his 2013 afterward, Rauch (who is a signatory) made the persuasive point that those in society with the least power have the most to gain from a legally and culturally robust arena for speech and debate.

"For politically weak minorities, the best and often only way to effect wholesale change in the world of politics is by effecting change in the world of ideas," wrote Rauch, citing the long and sometimes hopelessly uphill battle to achieve legal equality for gay Americans. "Our position as beneficiaries of the open society requires us to serve as guardians of it. Playing that role, not seeking government protections or hauling our adversaries before star chambers, is the greater source of our dignity."

In his terrific Clear and Present Danger podcast, Jacob Mchangama hammers home a similar point: Free speech is a potent and historically rare weapon for the powerless; blasphemy and other hate-speech laws are the crutches of authoritarians.

The handful of people on this list who I count as friends are motivated by a sincere worry that the walls of debate are closing in on people who don't have the benefit of their comparative advantages. "Sometimes you author a letter to defend yourself. Sometimes you write a letter to protect others," tweeted my longtime collaborator Kmele Foster. "In this case, I think we're doing a bit of both."

That doesn't mean their assessment of the situation is right, of course. But it does suggest that there are easily accessible avenues for discovering some of the motives of the petitioners, beginning with the language of the petition. So very many critics are just not interested in even that minimal gesture. Instead, it's yet another herding exercise—send these 150 people into the ever-growing "coven of fools," even if we used to like that Zephyr Teachout or whatnot.

"No seriously," wrote Ken "Popehat" White, a longtime critic of the culture-of-free-speech argument that the signatories embrace, "now I wonder if the letter was crafted to make its point not in its text but through the anticipated reactions. Good Lord above people."

The essayist Freddie de Boer had a kind of I-break-with-thee reaction to the negative response. "What does it say when a completely generic endorsement of free speech and open debate is in and of itself immediately diagnosed as anti-progressive, as anti-left?" de Boer wrote.

How can someone object to an endorsement of free speech and open debate without being opposed to those things in and of themselves? You can't. And people are objecting to it because social justice politics are plainly opposed to free speech. That is the most obvious political fact imaginable today. Of course Yelling Woke Twitter hates free speech! Of course social justice liberals would prevent expression they disagree with if they could! How could any honest person observe out political discourse for any length of time and come to any other conclusion?

But there is a more generous and thought-provoking reading, one offered frequently by Popehat, and more extensively in a recent essay by Osita Nwanevu in The New Republic. Which, in a nutshell, is: Freedom of association is crucial, too, man.

As someone who has long been on the opposite side of Popehat in those culture-of-free-speech debates (my best attempts are probably here and here), I nonetheless acknowledge the basic fuzz around the standard. Yes, I want the parameters of expression jimmied open ever wider. No, I don't want to hang out professionally or personally with Nazis and/or race/IQ obsessives. Is there some kind of contradiction there?

I think less so than meets the eye. The problem with the would-you-publish-a-Nazi hypothetical is that it's almost always hypothetical because—happily!—America still hates Nazis after all these years. I can think of exactly one case where a person who is in my professional and ideological orbit—who I once did a paid journalism seminar for—was revealed via thorough reporting in 2019 to have been ringleader of a literally pro-Hitler "Morning Hate" email group in which mostly young Washington types engaged in racist and anti-Semitic one-upmanship.

Here's what happened when Nazi-LARPer John Elliott was unmasked: Every right-of-center organization cut ties with the racist bastard. Honorable conservative commentators like the Washington Examiner's Timothy P. Carney wrote pieces with headlines like, "It's time to create a conservative ecosystem that doesn't welcome racists," arguing that: "Conservatives don't give it enough attention, but one of the greatest evils in the U.S. today is rank racial inequality….Conservatives ought to make it a priority to fight for the fundamental dignity and equality of racial minorities who have been denied that dignity and equality."

So the Nazi hypothetical isn't that hard to work through when the evidence is that thick. How does that compare to the last six weeks of people losing their jobs after their bosses, under duress, chose to no longer associate with them? Let's just look at the comparative wrongdoing and due process in three recent cases Reason has mentioned:

* A 54-year-old government contractor was fired after the Washington Post outed her in a 3,000-word article as having attended a Halloween party two years prior in a blackface costume satirizing Megyn Kelly's racial views.
* A San Diego Gas and Electric Co. employee was fired days after a stranger took a picture of him in his truck making with his fingers an "OK" sign that was interpreted as a white power gesture.
* A 28-year-old political scientist was fired from his Democratic consulting firm days after tweeting respectable research indicating that violent protests are less effective at changing policy in the preferred direction than nonviolent protests.

Were these examples of exercising freedom of association? Well, sure, but—not unlike racist speech!—these are bad exercises of that freedom. If we can be negatively judgmental about speech, surely we can also be negatively judgmental about associative behavior, particularly when it's a panicked attempt to chase off a due process–hating mob.

Look, I get it: Successful people are annoying, particularly on the East Coast. There is something inherently ridiculous about joint statements of concern. If you are a moderately heavy consumer of public discourse it's literally impossible to not have been irritated by several people on this list. I do not doubt some track records here contain personal hypocrisy on the issue in question, and there is no shortage of other malignancies to rally against in July 2020.

But here is where Freddie de Boer and I are close to being on the same page: The vast majority of public-facing writers and intellectuals I see scoffing at "cancel culture" and dismissing as a single tiresome monolith a grouping that includes Katha Pollitt, Martin Amis, Shadi Hamid, Margaret Atwood, Greil Marcus, George Packer, Michelle Goldberg, Randi Weingarten, and Zaid Jilani, are at some point just telling on themselves. You do not want to hear left-of-center thinkers bemoaning the free speech "illiberalism" on the left, and you are not curious whether at least a handful of people you have previously respected might have a legitimate concern or two about an issue you claim to hold dear. Noted."