Missouri v. Biden (the case seeking to limit the Biden administration’s contacts with social media platforms) is, at heart, a dispute about content moderation on social media. It’s also about whether right-wing conspiracy theories about Covid, vaccines, and the election should be allowed to spread unchecked and unchallenged. It also embraces the libertarian (and anarchist) view of government.
The case, in a nutshell:
The Plaintiffs include Missouri and Louisiana, their attorney general, and a few others, including a Stanford professor of medicine who opposed masking requirements, vaccine requirements, and lockdowns.
The Plaintiffs filed a lawsuit accusing Biden and administration officials of operating “open and explicit censorship programs.” They claimed that Biden and his administration “threatened and cajoled social-media platforms to censor viewpoints and speakers disfavored by the Left,” and have now entered “a phase of open collusion with social-media companies to suppress disfavored speakers, viewpoints and content.”
The Plaintiffs assert that the Biden administration is operating this “censorship” operation under the “Orwellian guise of halting so-called ‘disinformation,’ ‘misinformation,’ and ‘malinformation.’”
Applicable law, in a nutshell:
The First Amendment limits the government’s ability to regulate or censor the speech of individuals and media companies. The First Amendment applies only to actions by the government and not to the actions of private persons.
Under the First Amendment, the government is permitted to “advise” or try to “persuade” media outlets, but the government is not permitted to engage in “jawboning,” which is defined as “behavior that is extremely coercive.” Basically, the government can “persuade” but it cannot “intimidate.”
Plaintiff’s argument, in a nutshell (spoiler)
As I will show, the Complaint basically argues that that
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- government officials spoke and offered strong opinions, and
- social media platforms “censored” right-wing viewpoints,
therefore, the plaintiffs conclude that government officials jawboned social media platforms into censoring political speech.
Plaintiffs offer the following as examples of right wing speech they claim was “censored”:
- The Hunter Biden laptop story.
- Speech questioning the efficacy of masks and lockdowns as mitigation measures.
- Speech about “election integrity” and the “security of voting by mail.”
The Plaintiffs account for the fact that these and other stories were not given exposure because people thought they are nonsense. Plantiffs respond by offering “evidence” that in fact, each of the above theories is legitimate, and therefore, the public was harmed because the stories were “suppressed.”
Plaintiffs offer these examples of “censorship”:
The Wall Street Journal Editorial Board “reported” that “nearly all of the media at the time ignored the Hunter laptop story or ‘fact-checked’ it as false.”
During the major Covid-19 outbreaks, Twitter “censored” (labelled or removed) speech claiming that face masks do not work to reduce transmission or to protect against COVID–19.
Plaintiffs offer these examples of what they claim are illegal government actions:
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- Then-Senator Kamala Harris, on Sept. 30, 2019, said, “Look, let’s be honest, Donald Trump’s Twitter account should be suspended.”
Plaintiffs alleged that the government “threatened” to revise Section 230 of the Communications Decency Act of 1996 in a manner that would deprive social media platforms of some of their freedom. Evidence of such “threats” listed in the Complaint include:
(Note: None of the above is a “threat.” Government officials, particularly members of Congress, are always talking about revising legislation.)
As another example of “threats” or “coersion,” the Complaint cites a letter that members of Congress sent to Facebook. According to the Complaint, the members of Congress “demanded” that Facebook address Spanish-language disinformation across the platform. I went to look at the letter, which is here.
The letter opens with this: “We write to you regarding our serious concern with Meta’s (formerly Facebook’s) lack of progress addressing the pressing issue of Spanish-language disinformation across its platforms.” The letter informs Meta that the efforts to target Spanish-speaking communities originated in “Russian state-controlled outlets.”
The letter admonishes Facebook for “continuously” failing to “show it is adequately addressing this problem for Spanish-speaking communities. . . ” and pointed out that Russian-sponsored disinformation outlets were succeeding in targeting American Spanish-speaking communities.
Congress concluded with a “request” that Facebook answer questions about the steps they plan to take.
Remedy sought
The plaintiffs asked the court to hold that the government’s behavior was unlawful and order the government to stop. Such an order would effectively forbid the government from talking to social media platforms at all and from talking about content on social media.
The government responded to these accusations by explaining that an important part of the executive function is to “speak to members of the American public—including American companies— about how they can help mitigate threats to the Nation”:
“From President Kennedy’s exhortation for steel companies to lower their prices to President Trump’s efforts to encourage companies to keep American jobs onshore, presidents and other officials have long exercised the power of persuasion to advance their vision of the public good. . . . For example, the FBI routinely shares with platforms intelligence regarding accounts that appear to be used by foreign malign actors to influence the American public, or by foreign terrorist organizations to recruit supporters.”
The government’s argument (from what we see so far from the filings) is this: Such an order would impede the executive branch from carrying out its functions and would violate the separation of powers by allowing the judiciary branch to regulate executive branch speech. Moreover, the plaintiffs have no standing to bring this action, so the entire case should be thrown out.
What this case is about
The lawsuit gives voice to the long-held right-wing belief that mainstream media, the federal government, and powerful high-tech companies are all in collusion to censor and ban their political views. The lawsuit rests on the right-wing view that the federal government routinely engages in nefarious efforts to infringe on the “liberty” of individuals. In this case, the “liberty” being infringed is what the Plaintiffs believe is their right to have their political views given prominence in the media.
This case matters because many (if not all) of the difficulties we are having now in holding on to democracy come from the way people get their information.
The libertarian (and anarchist) view of government
The logical error in this brief is that the plaintiffs confuse chronology with causation.
- Government officials said and did X.
- Facebook did Y.
- Therefore, Facebook did Y because the government officials did X.
What they want is for the government to shut up and back out of it. Now, if the government does nothing and the platforms continue to muzzle certain speech, they know that they can’t do anything about that. Private platforms can do what they please.
This is the “Government should stay out of everything” argument put forward by people who think that individuals should be allowed to do any of the following without government interference:
- Carry semiautomatic weapons
- Dump pollutants into rivers
- Refuse to pay taxes
- Cheat customers (this is the caveat emptor theory)
Key procedural history:
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- The plaintiffs filed their complaint (the document initiating the lawsuit)
- The plaintiffs asked for a preliminary injunction preventing the Biden administration from talking to social media companies as the lawsuit proceeds. (A preliminary injunction is necessary to prevent “irreparable harm” as the lawsuit continues.)
- An unhinged Louisiana judge granted the the premiminary injunction.
- The government appealed the preliminary injunction.
- The Court of Appeals blocked the injunction.
The Fifth Circuit Court of Appeals sided with the government and blocked the preliminary injunction while case proceeds, offering some hope that, while it’s clear that the judge will rule for the Plaintiffs, there is a chance that the notoriously conservative Court of Appeals for the Fifth Circuit will behave sanely.
Parallels Between the World View Articulated in Missouri v. Biden and Elon Musk’s Vision for Twitter.
When Musk purchased Twitter, he claimed to be a “free speech absolutist,” and promptly reinstated accounts that had been banned for spewing racist, dangerous lies. To take two examples of many, Musk reinstated Andrew Tate and Lin Wood. (Wood was suspended after January 6, 2021 when he tweeted that former vice-president Mike Pence should face “execution by firing squad.”) Musk told Trump he’d be welcomed back.
In December, shortly after buying the platform—in an attempt to give credit to right-wing talking points that Twitter intentionally silenced conservatives because of their political views—Musk and a few of his his allies began releasing internal documents to a handpicked group of journalists who posted excerpts on Twitter. These documents composed what they called the “Twitter files.”
The so-called Twitter files did not prove that right-wing views were unfairly censored, but they succeeded in fueling the right-wing talking points echoed in Missouri v. Biden. (In fact, internal researchers at Twitter found that, even before Musk’s purchase of Twitter, right-wing views tended to be favored by the internal algorithms.)
Soon after purchasing Twitter, Musk began to “empower right-wing viewpoints.” Within a few months, he turned the site into a “far right social network.” He removed fact-checking and content monitoring. He is is now paying Andrew Tate and other right-wing extremists for their contributions to Twitter while finding ways to amplify misinformation.
The pattern is the same in Missouri v. Biden: They begin by asserting that their views are being “censored” and then insist that their views be given dominance and allowed to spread unchecked and unquestionied. Missouri v. Biden and what Musk is doing to Twitter matter because many (if not most) of the difficulties we are having now in holding on to democracy come from the way people get their information.
One solution: Decentralize social media so that communities of users can set their own parameters and rules.
As I wrote here, it appears that the future of social media is decentralization through open protocols. (If you don’t know what I’m talking about, see this post.)
As of right now, the following platforms either use Activity Pub or have announced that they plan to implement Activity Pub: Threads, Post.news, Mastodon, Tumblr, Medium (and I’m probably forgetting others.) If enough platforms interact with Activity Pub, and if each hub can perform its own content moderation, the Nazi and QAnon crazies can, perhaps, be marginalized from mainstream social media.
You see, right wingers don’t merely want their own platforms. If they did, they would all congregate on Truth Social or Parler. What they want is to dominate all platforms, which is why the Plaintiffs in Biden v. Missouri want to remove any possibility of legitimate criticism from official sources.
How I am using social media during the transition
My primary home right now is on Mastodon. Why? Because it appears open source protocols are the future and because I own my own server and I can thus make my own rules and I don’t have to worry about a lunatic billionaire buying the platform.
On Mastodon I have been doing a series called #FunReadingLegalDocuments. You can click to see my analysis of the following legal documents that were filed this week:
- Trump’s motion to the Georgia Supreme Court to throw out the results of the special grand jury proceedings.
- Trump’s attempt to indefinitely delay his trial in the stolen documents case.
- Also some discussion about a target letter send by the DOJ to a Trump Org employee
Youtube Again
About a year ago, I was doing a Youtube series on topics about books, law, and politics for people who prefer to listen. I stopped because I was spending a lot of time on them and because hey, I’m a writer. My technical support staff (my husband) recently talked me starting up again. He said, “Just do the talking and I’ll do the rest.”
So I talked. He did the rest. I haven’t even looked at the final product. What trust, right? So if you know people who prefer listening, we now have recordings on these topics:
- The January 6 investigation overview
- The Investigation into the attempt to overturn the election results in Georgia
Also, the last two blog posts are here, as recordings:
And JJ
I have to be make sure I know where JJ is before I say, “Wanna go for a walk?” He”ll get so excited he’ll leap up and come running so fast he’ll skid around corners and slide into walls. (He’s the excitable type)
I have two questions. First, does the complaint in Missouri v. Biden state a claim? I don’t think it alleges a first amendment violation. There is no censorship, merely discussion between the Government and the social media site. Therefore, the complaint should have been dismissed. Second, isn’t the injunction overbroad? It bans any contact, which seems overbroad. Doesn’t the injunction infringe on President Biden’s First Amendment rights? Doesn’t he have a right to criticize social media companies? What is the basis for the prior restraint on his speech?
Yes, they listed 6 counts. I think I offered a link to the complaint itself.
If they never stated a claim of course the case would have been dismissed.
https://scheerpost.com/2023/07/13/patrick-lawrence-the-disinformation-industry-lands-in-court/ good article
I wonder what you think of Greenwalds take https://rumble.com/v2ybni6-system-update-show-110.html
Bruce, this came through empty.
Huh! I inserted a thumbs up emoji and it showed up in my preliminary view. Apparently, your web stuff suppresses emojis. OK. Imagine a thumbs up emoji. 😀 (a traditional, non-graphic emoji)
And the text based emoji [ ‘:’ + ‘-‘ + ‘D’ –> 😀 ] works. Perhaps we need some sort of key to tell us how stuff gets translated. I have learned that anything that looks like XML (e.g. HTML) gets stripped out.
I got inspired to do some research:
https://www.textemoji.org/p/thumbs-up.html
d(ö)b (two thumbs up, maybe?)
Thumbs up from here too. Teri: If I’m a citizen of another country and book a social media account under false info as to name, location, etc., am I entitled to the protections of free speech?
Any person in the United States is entitled to fundamental constitutional protections.
The efforts to permit lies to be disseminated under the guise of free speech on social media is very similar to the efforts of the “Moms for Liberty” to restrict the information available in schools. Disinformation rarely passes the sniff test of an informed person but once someone accepts a basic element of disinformation — such as the idea that mail-in ballots are easily manipulated — it is more likely that further disinformation — the election was stolen — will be believed.
Missouri vs Biden has no standing and
you can see that clearly on Facebook,
Twitter, Substack and many other
platforms. People and different groups;
Mom for Liberty/Facebook are more than free to express their opinions and
choices. “You” can follow them or not.
“You” can interact with them or not.
It’s “your” choice. The same applies
to any government announcement on
social media.
No one is being censored, except for
outright hate speech and death threats.
Generally it’s the social media group
flagging these, but more often now,
it’s the user’s themselves, reporting
people to the police or FBI. A
Seems the far right-wing wet dream is to tell people what books they can/can’t read, what they can/can’t learn in school (no honest history, no CRT, no SEL, no critical thinking skills, no diversity of human sexuality…), to tell people what medical procedures they can/can’t access…. and absolutely no one is allowed to ask any right-wing person questions, or to object, criticize, fact check or request exceptions.
Seems similar to the evangelical christians who want the right to discriminate against others ostensibly due to their “deeply held religious beliefs” and yet whenever someone points out the harm religious based discrimination does the christian claims that because such a statement pointing out the harms has been said their religion is now being persecuted.
Aren’t the tactics of DARVO, gaslighting, hypocrisy and abuse of intelligence animating the behavior of would be strongman authoritarians?
I.e. the right-wing wants to create culture war or religious based “rules” the rest of us *must* follow – or face threats – “rules” that don’t apply to the right-wingers who goose step correctly (woe betide the right-wingers who put a foot wrong. See also “underbusing”).
I’m a fan of rule-of-law and democracy and becoming a bigger fan by the minute. So tired of strongmen type bullies.
Sue, you just stated exactly what I was thinking while reading the article. You just saved me a lot of time.
Yes! I loved this post Sue. The Wingers simply don’t get the irony that as they demand that everyone must abide by their religious rules, they are trampling upon the heart and soul of this nation, which is of course, freedom, through law and order, the demand that no one is above the law, and that all of us, are created equal.
Our Founders called for the Separation of Church and State, because they wanted no King George here, demanding that we all become Protestants, or follow any other sky god lunacy , or those who wish to follow no religion at all,
in order to secure our freedom !
(I believe, that they also wanted to do this in order to keep our government free from having to rule on endless cases regarding religion, because they understood the enormity of this due to endless argument in their own chambers, as they wrote, and given the fact that as a new democracy, they would have endless issues to deal with, ANYway.) But maybe that’s just me.
The Wingers fail to realize that Chuch and State protects thEM, and their desire to be absolutely insane, should their numbers dwindle even more, which now seems to be the case. This is their greatest fear, and the reason for this “Greenbay sweep”, ( I know. But I stole it anyway.) lurching towards the radical right with more and yet more blatant, and obvious threats to our democracy . They just don’t get, that no one, is coming for them, and under our Constitution, if it does survive, no one ever will.
So..
“Aren’t the tactics of DARVO, gaslighting, hypocrisy and abuse of intelligence animating the behavior of would be strongman authoritarians?”
Yes!
History tells us that this is the beginning of a strongman’s dream; one State Media outlet controlled by the strongman, and the suppresion, and eventual destruction of thought that does not align with their strongman’s views, until the citizens’ own freedoms and beliefs simply ceace to exist . The threats from citizens then evolve into threats delivered by the strongman, and military violence against the population.
If this is allowed to succeed, the wingers will realize the catstrophe they have created only just before they see that they have destroyed their own rights, their own protections under the law, and our democracy, or, they will never see it, at all, depending upon their own levels of intellegence, the fact that ignorance, is bliss, and that religion is based upon ignorance.This is the agenda, the tool, (God, guns and guts) that has been adopted and implimented by the GOP for more than 50 years now, in order to secure thier own power in D.C. In tfg, they found their perfect puppet, which is why they want him back in so badly.
I know where I stand, and right now, that is with the Biden administration. If I believed in a god, I would thank him or her, on my knees, for our present leader.
We’ve got a lot of work to do, if we want to hang on to our Democracy. Thanks for the great comment Sue. Looking forward to your next post!
Missouri v. Biden has to fail or that’s really the end of democracy even before the election.
Before the rise of the MAGA extremists, I knew there still was propaganda, but I don’t remember so much visible destruction of efforts for the public good with respect to public health and elections. When we had public health emergencies, people didn’t try so hard to discredit valid science. While election fairness has been a long hard effort, it had been getting easier to vote, not harder, and candidates and the public abided by the results of elections.
Ande, that is so not true.
That isn’t the dealbreaker. If a majority of people vote for Trump if government officials can’t advise social media platforms, they would have voted for Trump anyway
Some perhaps, but the problem is that far too many believe what they see on social media and are swayed by the propaganda campaigns. They either lack the skill or the will to look beyond what they are told, but reality based moderation might make a difference for some of them.
Right. But you are assuming that the government actually does force social media platforms to censor those ideas, and it isn’t the government. It’s the users.
True, the platforms themselves have to provide the moderation. The case needs to fail though so that the government can have responsible dialog on the platforms, not to censor, but to provide factual information where applicable.
In the end though, it is up to all of us to validate the information we consume. If enough of a platform’s users seek the truth and don’t amplify disinformation/propaganda, that can go a long way toward slowing or even stopping the flow of propaganda.
True, the government doesn’t censor social media platforms or even force them to moderate themselves, but it is important for government officials to be able to provide factual information and have the discussion given the ubiquity of social media.
And yes, in the end it’s also incumbent on all of us to vet the information we consume. Reality-based moderation helps, but we still need to not pass along misinformation or outright propaganda.
This reminds me of what my dad used to say when he couldn’t understand why people would believe what they were told or read without questioning its truth…”what’s wrong with people?” I’m wondering the same thing.
Sorry about the double comment submission at this sub level – it looked like the first one wasn’t accepted, so I submitted the second slightly reworded. My bad!
It sometimes takes me a while to approve them. (I do them manually, although there is less need now. At first I was getting trolls here to call me vile names, but that hasn’t been happening since I did a round of blocks.)
Gary – this is where we have the conflict with the First Amendment. Clearly free speech is important, but it also allows the spread of dangerous disinformation or propaganda given our technological advances.
It takes effort to fact check, and it also takes a certain amount of education or at least intellectual curiosity to recognize when something doesn’t pass the smell test and look further to validate a claim.
I often wish that the rules that apply under oath applied in public discourse to stop the lying, but there’s a fine line between that and overt censorship should a malevolent authority control the public sphere.
Unintentional misinformation can happen even with the best intentions. Was the day when reputable sources had the time to send out corrections when that happened. Now with the instantaneous access to information, the sheer volume makes that much more challenging if not downright impossible without moderation.
With social media, when there’s a overarching profit motive in play, that makes it even more challenging because conflict sells. That makes it all the more important to move toward a decentralized social media ecosystem where there is no overarching ownership of the platforms. Of course as Teri has noted, it still comes down to the users to make it all work.
Virtually everything you mention and more were well underway before organized social media disinfo campaigns. The modern anti-vaxx/anti-science movement started in the mid-90’s with Dr Wakefield, and it spread just fine in earlier eras (look up the movement in the 20’s, it was huge). Election restrictions have their roots in the very founding of the nation and the hard fights to gain voting rights for various constituencies. Modern restrictions are rolling back to historical norms. Anti-masking/public health campaigns also have deep roots and there were parallels to COVID deniers during the Spanish Flu pandemic in the early 20th century.
We’ve also had repeated populist movements, sometimes succeeding (Teddy Roosevelt, Ronald Reagan) and some terrible short and long term consequences as a result. And anti-science has always been a thing, originally rooted in religion, later rooted in capitalism (read Merchants of Doubt for the origins of smoking & climate change denial).
Social media makes misinformation easier in some ways, but it also makes countering it significantly easier as well. As Teri says, these people are looking for a way to vote as they do, populists like Trump simply capitalize on what is already there.
According to https://cowboystatedaily.com/2023/07/14/federal-appeals-court-shuts-down-block-on-federal-social-media-censorship/ The Appeals Court put a hold oh Judge Doughty’s injunction yesterday. A win for truth and safety.
I think the standing issue is important. It applies to the wedding website decision as well. If the courts allow themselves to be used as facilitators of aggrieved but unharmed plaintiffs, then the judicial system is in trouble.