June 29, 2024 - 1:00pm
The US Supreme Court this week ruled against (6-3) plaintiffs in a historic free speech case. Murthy v. Missouri alleged that Biden administration officials engaged in a wide-ranging censorship campaign during the Covid pandemic, with the goal of stifling dissent on lockdowns, vaccines, natural immunity and masks.
Mainstream outlets — including the New York Times, Guardian, Vox, and CNN — reported positively on the decision, claiming that the court had effectively “approved” of the government’s actions, including by the CDC and FBI, in requesting the removal of posts on Facebook and X and persuading changes to content moderation policies.
Really, though, the case and the Court’s decision reflects a variety of procedural issues and evidential standards that also raise questions about how to define and prove a particular individual has been harmed by federal censorship efforts — what has become known as the “censorship-industrial complex”.
First, the decision is mired in procedural issues. It focused on an emergency ruling to stop the federal government communicating with social media companies (called a preliminary injunction). It ruled that the plaintiffs did not have “standing” to sue because they could not establish proof that the government had directly coerced social media companies to censor them. The legal criteria also depends on establishing the possibility of future harm and the court ruled that, essentially, the Covid censorship of 2021 is not the same in 2024.
Second, the Court’s decision also had to do with the burden of proof. The majority opinion re-articulated a need for precision and particularity; the plaintiffs needed a smoking gun, evidence to connect the dots. The Court argued that the range of claims was at times confusing. Twitter and Facebook were moderating — censoring — Covid content independently from the Biden administration. Covid-era censorship, after all, also widely occurred under Trump. And federal officials are always communicating and persuading social media companies, so what’s the big deal?
Free speech advocates, such as Matt Taibbi and the New Civil Liberties Alliance (which was involved in the case), pointed out that the Court’s decision will embolden federal officials to engage in future pressure campaigns. As long as the government can’t be seen as targeting a single individual, it can engage in censorship activities. This was made clear by Justice Samuel Alito and others in the dissenting opinion: “If a coercive campaign is carried out with enough sophistication, it may get by. That is not a message this Court should send.”
Additionally, the evidential standard ignores the ways that censorship regimes work in practice: it is rare that such work is explicitly stated about one individual. During Covid, these were often subject- and narrative-based bans. Coercive censorship also works dynamically with other group pressures and, in the pandemic, a wider climate of fear and conformity.
Ironically, this can be seen in the mainstream press’s coverage of the Court’s decision, where the plaintiffs are repeatedly labelled “far-right”, with no mention of their academic and medical credentials. The fact that the case brought together Republican attorney generals of Missouri and Louisiana and the founder of the Right-wing media outlet Gateway Pundit with four other plaintiffs shaped this media narrative.
Yet the world’s preeminent scientific journal, Nature, also published a news piece this week calling the plaintiffs “conservative activists”. Numerous opinion pieces in Nature continue to promote a certain “brand”, or cottage industry, of misinformation research (questioned by others) that exerts huge influence in government circles: the “censorship-industrial complex” does not exist and content moderation is necessary to “protect democracy”.
Yet three of the five plaintiffs are widely recognised scientists and physicians. Prof. Jay Bhattacharya, from Stanford, was blacklisted and shadow-banned on Twitter after Dr. Anthony Fauci called for a “devastating takedown” of the Great Barrington Declaration. Prof. Martin Kulldorff (previously at Harvard) and Prof. Aaron Kheriaty (previous head of the Medical Ethics Program at UCI) lost their jobs and experienced censorship partially due to their position on vaccination and natural immunity.
The majority opinion of the Court and other commentators, including from Nature, had little to say about the thin line between the bully pulpit (persuasion) and the use of “coercion” proper by federal officials, let alone larger questions about other group pressures.
At the heart of the case, then, is a question about the nature of modern censorship and the paper trail (or lack thereof). As the case returns to the lower court, the plaintiffs are likely to pursue discovery requests to search out such evidence — traceable links — in government communications, something that may take years to work out.
But there is another way. The Foundation for Individual Rights and Expression (FIRE) recently released a draft bill outlining, among other things, the need for government accountability during contact with social media companies including a public searchable database that would allow the public access to such communications. It’s a start. There is now an opportunity for Congress to take action against the incentive for federal officials to pressure social media companies to censor.
Main Edition
US
FR
Join the discussion
Join like minded readers that support our journalism by becoming a paid subscriber
To join the discussion in the comments, become a paid subscriber.
Join like minded readers that support our journalism, read unlimited articles and enjoy other subscriber-only benefits.
SubscribeThe Left circle the wagons.
And they say it’s the Right that stokes the Culture war.
Mainstream outlets — including the New York Times, Guardian, Vox, and CNN — reported positively on the decision, claiming that the court had effectively “approved” of the government’s actions
So why not say the ‘far-leftist outlets’? Why normalise the far-left as ‘mainstream’?
It’s really important to be specific when calling out ‘media’. What media? Who’s media? Why give the far-leftists cover?
Amazon banned me from its consumer review platform a few years ago. They didn’t give me a good reason why. One morning the hundreds of reviews of books and other products that I had written over the previous 15 years had vanished. They were gone.
Amazon said that I violated their guidelines, but wouldn’t say how. I think it was because my political views lean conservative, but will never know. What I do know is that it wasn’t because of pressure from the White House. This was when Donald Trump was president, not Joe Biden.
That makes me think that today many of the people incensed about government censorship are looking for elm trees and missing a forest of pines. It seems to me that the supreme court was right to throw out the Murthy v. Missouri case for lack of standing. Those complaining of the government censoring people by proxy are unable to find even one person who has been so censored. Not even one elm tree, standing alone.
But look for people who have been improperly been censored and they can find a veritable forest of them. Trouble is, these people (and I am one of them, banned by Amazon) are not being censored because the government forced a private company to censor them. They are being censored because the social media companies chose to censor them. The government applied pressure in some cases. But the pressure was not coercion, not force. The private company made the choice.
Take the case of Twitter and the FBI. The FBI would ask Twitter to look at certain accounts that might be white supremacists or other extremist groups. The FBI paid Twitter to investigate these accounts, and then left Twitter to take action against the accounts if Twitter decided that the accounts violated Twitter’s policies. In most cases, Twitter decided they did not. The FBI had no say.
That made it a good process in some ways. The FBI didn’t demand information from Twitter that it didn’t really need. And Twitter made the decision based on its judgment whether to censor. There seemed nothing improper or coercive about it. But now that Elon Musk bought Twitter (and renamed it X) he probably canned that program, as he had the right to do. The government had no right to force him to cooperate.
All the cases I have seen, and the supreme court saw in the 20,000 pages of evidence in the case, are like that. People try to provide examples of a vast censorship-industrial complex at work, but they can never find them. The Twitter Files were supposed to be explosive. They were a dud. Alex Berenson’s case against Joe Biden is similarly a pedestrian case of censorship by stupidity, but it was Twitter’s mistake, not Joe Biden’s.
Mistakes were made, that’s certain. But not by the government, it seems. So stopping the government from even talking to the social media companies is not going to help. The government cannot legally coerce private companies to censor. That was the law under the First Amendment, and still is. But coercion wasn’t the issue at play in this case.
What was? Something a lot less than coercion. The district court wanted to greatly expand the free speech law to include a ban on the government even talking to social media companies. The appeals court narrowed the prohibition to just stop the government from “strongly encouraging” censorship, but that’s an impossible metric to observe.
The villain here, if there is one, is the private company that censors when they do content moderation. The Twitters, the X’s, the Facebooks, the Amazons, the YouTubes, the New York Timeses and the Wall Street Journals. Even UnHerd has to deal with that tension. Commenters here (myself included) get irritated when our comments are removed or delayed for some reason. But it’s not because of some vast censorship-industrial complex. It’s largely because content moderation is hard to do.
Doing a good job at content moderation takes time and money, and even then the censors have their biases too. The social media companies have liberals in positions of power over politics. Who is in charge of content moderation at Facebook? Former British politician Nick Clegg. Who is in charge at Amazon? Former Obama press secretary Jay Carney. No wonder conservatives like me have long felt disadvantaged by Amazon’s moderation policies even while Donald Trump was in the White House.
But bitter and expensive fighting in court — by plaintiffs who feel they have been violated and with defendants who feel they did nothing wrong — is unlikely to make content moderation any easier. The legal process can never be a good battleground for solving social problems like this. It’s designed to decide particular cases, not to make law. In the common law of the UK and the US, those individual cases build up over time, evolving into law. No one case is supposed to lay out the law. In Murthy v. Missouri, without a proper plaintiff in the case, it was rightfully dismissed.
So what should we censorees do? I’d suggest we try to look for solutions outside the courtroom. Don’t litigate, cooperate in trying to work out a way that the social media companies do better on content moderation. I have some ideas on that, developed after I was banned, and I’ve been looking for years for people to help implement them.
I spent 10 years in Japan studying law and then working as a lawyer there trying to resolve disputes outside the courts. Then I returned to the US where the courts are filled to overflowing with people fighting each other over things that no court can help with. We in the west spend too much effort on competition and too little effort on cooperation. We spend our time fighting instead of solving. Warring instead of talking. (Like Russia and Ukraine.) That’s destructive, not productive.
I think we can do better.
Interesting to see how herdish UnHerd can be.
(This comment was written when my above comment had 0 thumbs up and 5 thumbs down. Perhaps what I said is not so true any more.)
The government got a free pass from the Court to continue to bully companies into doing their dirty work. The Court may have been technically correct that the plaintiffs did not have ‘standing’, but that simply means the measure of standing is too narrowly defined.
One expects the far-left justices to side with the government, but Barrett, Roberts, and Kavanaugh should know better. This was an opportunity to hold the government accountable for intentionally pitting one constituency (the media) against another (numerous individuals), which is certainly NOT a legitimate role of the gov’t.
Many thanks for this measured analysis and personal story.
You sound amazingly magnanimous – very refreshing.
Also good to hear that at least one individual is thinking about alternative, workable strategies to deal with this problem.
Cheers
Thanks for your interesting comment and your view of the Supreme Court’s decision.
I was outraged by the Supreme Court’s narrow interpretation on “standing” and still feel very upset, that a government agency can get involved in any social or other media organisations.
Why would the FBI nudge a privately held company to look at so-called extremists or White Supremacists opinions, unless the users issue death threats at specific targets. As you said, any privately held social media company has its own moderators and should be allowed to moderate as they may wish without any government interference.
I still believe, that free speech sadly suffered a heavy defeat, even if the Supreme Court’s decision was technically justified.
Legal scholar and popular pundit Jonathan Turley published a book a couple of weeks ago called The Indispensable Right: Free Speech in an Age of Rage. In it, he takes a strong, polarized position much like yours. Free speech demands bright lines, he says, not trade-offs and compromises.
I disagree. Economist Thomas Sowell says that there are no solutions, only trade-offs. To me, that’s the better way to look at it. Our society is a complex, adaptive system, and unfortunately, complexity cannot be simplified down to bright-line rules. Best to decide things case by case, like the supreme court did.
If there is a vast censorship-industrial complex at work, there must be a person out there who can show that they were harmed by it. Let that person bring a lawsuit. Then the courts can address it. So far, no such person has been found.
Meanwhile, we know that there is a lot of unfair censorship going on by the private social media companies. That’s a real problem, and there’s no silver-bullet solution to it. Litigation doesn’t help with problems like this — imagine if outraged commentators sued UnHerd when it deleted or delayed one of their comments. That would be unworkable, a mess.
So what should we do? I have some ideas, but they are hard to present in a format like an UnHerd comment, so I won’t. But I don’t think litigation is a good way to put those ideas into place either. And who knows if they would help.
As to the FBI, think back to April 19, 1995. A truck bomb exploded on that day in front of the federal building in Oklahoma City. The blast killed 168 people, including 19 children in the building’s day care center. More than 680 people were injured. At least 324 buildings were destroyed or damaged, with an estimated value of $652 million.
The attack was carried out by Timothy McVeigh and Terry Nichols, both members of an extremist right-wing group in Michigan. The cited as the motive for their bombing the government attacks on right-wing groups at Ruby Ridge and Waco. Timothy McVeigh was executed. Terry Nichols is serving 161 consecutive life terms in the supermax federal prison in Colorado.
The FBI keeps track of right-wing extremist groups to try to prevent terrorism like that. Sometimes the FBI does go too far, like with the Gretchen Whitmer kidnapping plot and (possibly) the January 6 riot at the Capitol. But I don’t think it goes too far for the FBI to work with a social media company to alert them to possible violations of the company’s own content moderation policies.
No social media company wants their platform to be used to recruit radicals to terrorism. Seems to me like the government and the social media platform working together was a win-win.
Maybe I am wrong, but didn’t the FBI also influence Twitter how to handle stories about Hunter Biden’s laptop before the election. I thought, that was the whole purpose of the Twitter file investigation.
Anyway, would be great if Freddy Sayer would let you write an article about your thoughts on Free Speech and its limitations. I just listened to Glenn Greenwald, who seems to be a radical Free Speech defender.