I have to say, I finally got to read the 5th Circuit opinion, thanks to Talking Points Memo (TPM), granting a preliminary injunction against a variety of government agencies from communicating with FB, Twitter, and YouTube. I found the court decision terribly unpersuasive because there is nothing in the governmental communications rising to the level of "significant encouragement" that amounts to a "coercive threat" from government officials. That the individual government officials were active in the court's eyes only showed me the judges are not used to the level of, and rhetoric people use in, email exchanges that go on these days when any group or institution is facing a hot issue. In that context, it was stunning to me that the rhetoric from the government officials was not anywhere near where the rhetoric from Twitter's pre-Musk-takeover critics made it sound.
More significantly, the court provided no evidence of the government saying to the platforms it was going to take away FB/YouTube's right to operate, the way US government officials strongly implied or sometimes stated directly to William Paley, CEO and Chair of the Board of CBS, that CBS' license would be removed through the Federal Communications Commission (FCC) for its taking a stand against Joe McCarthy or airing a report on how the Pentagon is tied up with corruption within the military-industrial complex. The most the court could say existed was once--once!--an official said they needed to "review....options" when the official was exasperated with a social media platform company's "too slow" or nonresponse. There is no showing from the court there was any further move, and, what is lacking in the decision, are higher ups or anyone with authority saying, "Oh boy! The government's gonna shut us down or put us out of business if we don't comply!"
What is outrageous to me is how the court did not even try to distinguish the previous case law it cited that went against its own reasoning, including Senator Elizabeth Warren literally threatening a governmental investigation and recommending a lawsuit, through the Justice Department and the FTC, against Amazon for not agreeing with her being found to be NO VIOLATION of Amazon's First Amendment constitutional rights. Other cases the judges cited, with facts showing more direct or clear threats than in the case they were being asked to decide, led to NO finding of any violation of the First Amendment. The case the appellate judges seemed to find most analogous was a horse racing agency head in Louisiana which was part of a private entity's decision to remove someone from a horse racing outfit. But there was direct government hand-in-glove evidence in that case, and if we learned anything from the Twitter Files, it was that Twitter's people above those responding to government emails and calls were really not afraid to disagree with the government at all.
The judges seem to think the government officials implying they might have to go to Congress to change laws is a threat in an environment where open 24/7 coverage abounds is laughable. It is also laughable where the Republicans in Congress were threatening the social media companies for agreeing at all with Biden officials, so the social media companies could have easily said "Stick it!" to the Biden officials.In that context, it was delicious to read the judge's admission that Biden's people were following rules put in place and USED by the Trump administration. They didn't mention, too, how Trump personally tried to get Twitter to shut down an individual singer or another singer's wife. So much for free speech from Trump and his fans. Further, the "Hunter Biden laptop story" was one where the NY Post initial story was shut down from Twitter and FB for one day, and then restored, and how that story went around so much that it is estimated 53 million saw the post in a ten day period in October 2020 (let alone other media coverage). I mean, really, did any voter not know about that story?
To give credit where credit is due, though, were there instances of changes in algorithms that removed content that was not in violation of the social media companies' revised rules, which again were not shown to be coerced or anything close to that? Sure, say the judges, and I believe them on that. But what the judges don't say is how those people were re-platformed most of the time, if not all the time. In this context, I find it telling of the judges' biases that missing from their decision is the fact showing how many times and at what rate the government requests to Twitter went unheeded or rejected after Twitter's internal meetings. That came out in the hearings, which I admit I can't find the exact link--as I remember being so surprised to hear that in clips I saw of Twitter executives about how many times they rejected the government's requests. Also, let's remember how we learned Twitter gave in to Trump's usual garbage when it went against their own policies, which severely undermined the partisan-based argument Republicans and Matt Taibbi were making, and one Twitter publicly regretted.
Incidentally, does anyone not wonder how it is that, since Elon Musk took control of Twitter, the social media giant appears to have been more compliant with government requests to remove content than under previous CEO Jack Dorsey? Irony alert to Musk Fans.
What was really awful in the decision is the judges' discussion of the FBI. All they showed is the FBI, in the 2020 election, was on the lookout for Russian hack and troll farms. The judges' decision never bothers to explain how that activity, and sometimes communications with the social media companies, had any language in the communications that would lead the social companies to believe they were in legal danger in not complying with requests to remove the information, or really most of the time, ridiculously wrong information, such as political operatives intentionally posting wrong times of the election day and wrong times of when polls opened or closed. They simply state that was the case, and don't even think there could be any justification for a government official to contact the social media outlet and say, Let's get that removed so people are not misled.
As I read through this opinion, I wondered from time to time how William Paley and Lenny Bruce would view the actions of the government the judges were citing. I eventually thought, "Wow. Those two guys would just laugh at this!" I am not saying that should be the legal standard, but the court decision cites to multiple cases that were far more direct where there was no relief, and tried to use factual situations in cases where there was direct action as in the Louisiana horse racing agency.
I have no idea what the six right wing justices of the US Supreme Court will do with this. I used to think of myself as a major First Amendment advocate and free speech absolutist. In the Internet Age, the two main theories behind my position, ones which free speech supporters have said for nearly 100 years, have been undermined. The first is: "We live in an information marketplace where good information will drive out the bad information, so don't get the government involved." Well, that certainly has not worked out that way very well, has it? Second, the reason for First Amendment absolutism is the assumption that "the people" will be able to discern lies from reasonable levels of truth. Well, we see how people are unable to discern differences between an opinion and fact, an argument versus a conclusion, and discern where language is emotional and language which is logical. Worse, despite having a vast library in the palm of their hands, and yet, too many people fall for every meme without any checking or God forbid, researching. Thus, my Jeffersonian free speech arguments, which I have so believed for so long, have faced a direct challenge for which I have yet to find a conclusion that can be categorized in any truly consistent manner.
What I do know is there are 2020 election lies that tens of millions of adult Americans continue to believe. I do know of people who suffered near death or death because they didn't take the COVID vaccine, because yahoos spread so many lies and misunderstood fears--notwithstanding strong evidence that not taking the vaccine leads to higher death rates (the Johnson & Johnson vaccine did appear to have a 5-8% chance of causing someone to develop Guillen-Barre syndrome, though, which I can chalk up to the government not being harder on J&J when the Moderna and Pfizer vaccines were already out there and had no such level of rates). And let's remember there are people who are actively promoting lies of various types to, in the words of Steve Bannon, "flood the zone."
First Amendment jurisprudence has still not caught up to the modern social media age, nor are our courts even prepared, due to their economic right wing biases generally, to evaluate context and the significance of corporate media ownership. This decision was cynical in not attacking the private company decisions, and making it sound like the poor social media companies, behemoths all, were being coerced. It is ultimately a decision that makes one think they are standing up to fascism, but they are using anti-fascistic philosophical values and language in the service of promoting people who more likely, in my not-humble opinion would set up a fascist form of government if they had the opportunity. Does that include all of the plaintiffs in this case? No. I see the doctor activists and other activists as sorta flaky and leftover hippies, not fascist, and therefore far more likely libertarian. The State AGs from the states which brought the action, and the Gateway Pundit, however, are enough to scare me if THEY were ever in control of our national government.
