Biden Admin Finally Points Out That The Record In The Murthy Case Is All Lies
One frustrating thing in following everything that has happened in the case that started out as Missouri v. Biden and is now Murthy v. Missouri at the Supreme Court, is that the case is full of lies. The whole case is kind of a mess for a variety of reasons. This includes the original plaintiffs (a mix of states and private actors, where it's not clear why they're all together, and it's not clear that any of them have actual standing), as well as the framing and positioning of the case, including misrepresenting various elements of reality.
In some ways, this case is an uncomfortable one. I've spent years explaining why government should stay the fuck out of any attempt to pressure companies to moderate in one way or another. I celebrated the Backpage v. Dart decision, as it gave a clear update to the Supreme Court's Bantam Books case regarding coercing bookstores not to carry books. On top of that, I've found some of the actions by the Biden administration, in trying to convince companies to change their moderation practices, highly problematic. There were plenty of times they should have just shut up.
But it did not appear to me that anything they did crossed the line from persuasion and use of the bully pulpit (perfectly legal and expected) to coercion (a violation of the 1st Amendment). It could be argued that where you draw that line is complex, and people can draw the line in different places. Indeed, there would be an interesting Supreme Court case to be heard that looks at the proper place to draw such a line.
But this isn't that case (nor is this that Supreme Court). And that's mostly because the record in the lower courts is a total mess, full of made up fantasies that were accepted as real and accurate.
Just a few weeks ago, I had a good conversation with a very smart lawyer who comes down on the other side of this case than I do. I told him that the part that was most frustrating to me was that it felt like the administration was arguing this case as if one side (and some judges) hadn't just made up a bunch of shit and insisted it was fact. This allowed people to suggest that there was actual evidence on the record of the White House crossing the line into coercion.
The problem is that the evidence isn't really there.
And now, finally, the Biden administration has found its voice on this. Its reply brief leading up to the oral arguments later this month finally makes a pretty direct call out to the lies from below on the record.
As they did at the stay stage, respondents try to defend that startling result by invoking the district court's factual findings-which they assert are unrebutted," Resp. Br. 2-to substantiate their allegations of widespread government censorship. But the government vigorously disputed the district court's findings below, and the Fifth Circuit declined to rely on many of them- presumably because they are unsupported or demonstrably wrong. Gov't Br. 9. Respondents' presentation to this Court paints a profoundly distorted picture by pervasively relying on those debunked findings.
Respondents still have not identified any instance in which any government official sought to coerce a platform's editorial decisions with a threat of adverse government action. Nor can respondents point to any evidence that the government ever imposed any sanction when the platforms declined to moderate content the government had flagged-as routinely occurred. Instead, respondents principally argue that government officials transformed private platforms into state actors subject to First Amendment constraints merely by speaking to the public on matters of public concern or seeking to influence or inform the platforms' editorial decisions. The Court should reject that radical expansion of the state-action doctrine, which would eviscerate certain private entities' rights to exercise editorial control over speech and speakers on their properties or platforms."
They even call out (finally!!!) the one email that keeps making the rounds: the email from Biden digital guy Rob Flaherty to Facebook. Like many others, when I first saw this as presented by the district court, I thought it was an actual example of the White House overstepping its bounds and said as much. But then, after looking at the more detailed record and context I realized that the plaintiffs and the judge totally misrepresented the email. It was actually about a technical problem regarding signups to the Biden campaign account, which Rob got angry about. But it was presented as him being angry about content moderation choices. In context, you realize this email (while intemperate) had nothing to do with coercing speech. It was venting about a technical glitch.
However, both the district court and the 5th Circuit falsely present it as being about content moderation, just as the plaintiffs did. And here, the White House finally calls bullshit on this (though in a footnote):
Although space does not permit a full treatment of the inaccuracies in respondents' account of the White House's communications, we offer one other example: As proof of supposedly ominous and coercive" threats," respondents recount that in July 2021, the White House emailed Facebook stating, Are you guys fucking serious? I want an answer on what happened here and I want it today.' " Resp. Br. 8 (quoting J.A. 740). But that admittedly crude comment was asking for an answer about a technical" problem affecting the President's own Instagram account-it had nothing to do with moderating other users' content.
It's kinda frustrating that the case has gotten this far with that falsehood on the record.
The reply brief also seems to be targeting Justice Kavanaugh, who you might consider a natural to reflexively side with the states against Biden, but the DOJ's brief leans heavily on the ruling in Halleck, which was written by Kavanaugh:
Respondents ask this Court to rewrite the constitutional boundary between the governmental and the private," Manhattan Community Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019), by affirming a sweeping and unprecedented injunction based on sweeping and unprecedented understandings of Article III standing, the state-action doctrine, and the proper scope of equitable relief. Respondents insist that any person can establish standing to challenge any action affecting any speech by any third party merely by asserting a desire to hear it-a proposition that would effectively abolish Article III's limits in free-speech cases. Respondents seek to transform private social-media platforms' editorial choices into state action subject to the First Amendment. And respondents do not deny that the injunction installs the district court as the overseer of the Executive Branch's communications with and about the platforms, muzzling senior officials' speech to the public and exposing thousands of employees to contempt should the court conclude that their statements run afoul of the Fifth Circuit's novel and vague standards.
The DOJ highlights the astounding weakness of the underlying record, which points to vague statements made by administration officials, followed by policy decisions made by tech companies, and insisting the two are connected, without showing any actual connection. And that should be seen as problematic.
Respondents assert (Br. 19-22) that they suffered direct" injuries because the government purportedly caused platforms to moderate content respondents had posted. But the Fifth Circuit did not find that any particular government action caused a platform to do anything to any content posted by respondents that the platform would not have done in its broad and legitimate discretion' as an independent company," Changizi v. HHS, 82 F.4th 492, 497 (6th Cir. 2023) (citation omitted); see Gov't Br. 17-18.
Seeking to plug that gap, respondents cite (Br. 19- 21) various instances in which the platforms moderated their content-most of which involve COVID-19-related content posted at the height of the pandemic. But respondents make little effort to connect those acts by the platforms to any specific action by the government. They do not, for example, suggest that government officials specifically targeted their content. Instead, they urge a birds-eye view" of traceability, Resp. Br. 19 (citation omitted), under which they presume that the relevant acts of content moderation are traceable to government officials merely because those officials made general statements about content moderation at around the same time, see id. at 21.
That generalized approach fails. The platforms have strong independent business incentives to moderate content, see C.A. ROA 18,445-18,453; the platforms actually did moderate respondents' COVID-19-related content starting in 2020, long before the bulk of the government actions challenged here, see Gov't Br. 18-19; and each cited moderation decision is consistent with the platforms' independent application of their own policies, see, e.g., J.A. 787-794 (Hines); J.A. 797-801 (Hoft). Especially given that context, respondents' bare timing-based speculation does not establish traceability
I'm almost wondering if the DOJ didn't really take this case as seriously until recently, which is why it feels like they're finally coming out swinging at this point.
Indeed, the filing admits what I've said all along: if the government actually did what the respondents claim, then absolutely this would be a First Amendment violation. The problem is that there's no evidence that they actually did it. And that makes this a messy case. I'd like the Supreme Court to rule that the White House cannot take actions to coerce social media companies, because that's the correct answer.
But how does a White House deal with an injunction that says stop doing this stuff we insist you're doing, even though you're not"? The lack of clarity here means that the White House's only option is to go way beyond what the First Amendment prohibits to avoid crossing a line drawn insisting that perfectly legitimate activity is violating the First Amendment.
So, the brief admits that yes, you should blame us if we had done all those awful things, but we didn't."
No one disputes that the government would have violated the First Amendment if it had used threats of adverse government action to coerce private social-media platforms into moderating content. See Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 67-68 (1963); Gov't Br. 23, 26-27. But no such threats occurred here
The filing also calls out how the district court judge (repeatedly) inserted false quotes (or misattributed the quotes to make them seem worse):
Respondents repeat the district court's assertion that the former White House Press Secretary made a threat of legal consequences' if platforms do not censor misinformation more aggressively." Resp. Br. 41 (quoting J.A. 111) (brackets omitted). But notwithstanding the internal quotation marks in that passage, the Press Secretary never uttered the words legal consequences." See C.A. ROA 23,764- 23,791. Instead, the words the district court attributed to her came from respondents' statement of facts. Id. at 26,476. Although we have highlighted this error before, see Gov't C.A. Br. 30; Gov't C.A. Reply Br. 9, respondents continue to repeat it.
The problem is not just the misquotation, but the absence of any statement in the relevant briefing that could plausibly be described as a threat of legal consequences. Respondents repeat the district court's assertion that the Press Secretary linked the threat of a robust anti-trust program' with" a purported censorship demand." Resp. Br. 40 (citation omitted). In fact, she did no such thing. When asked to respond to a Senator's comment that if the Big Tech oligarchs can muzzle the former President, what's to stop them from silencing you?'," the Press Secretary said (among other things) that the President supports better privacy protections and a robust anti-trust program"-a natural response to a question about oligarchs.' " C.A. ROA 609. Like the other press statements on which the Fifth Circuit relied, see Gov't Br. 31-32, that response cannot plausibly be characterized as a threat of adverse action if the platforms failed to take specific acts of content moderation. Deeming such general comments about important matters of public policy coercive would make it impossible for the President and his senior advisors to communicate with the public-or even to respond to press questions-on policy matters involving the platforms.
The government also highlights that the general admission that it's allowed to participate in the marketplace of ideas, so long as it doesn't do anything specific, which is weird and unworkable.
Respondents cite no authority supporting their proposed dichotomy between abstract" and particular" advocacy in this context. Their reliance on Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam), is misplaced because that decision holds that speech is unprotected under the First Amendment when it imminently incites particular unlawful acts. Even setting aside the fact that the government's entitlement to speak is not rooted in the First Amendment, the Court in Brandenburg did not purport to ascribe constitutional significance to the level of specificity used to encourage otherwise lawful actions, such as private platforms' content-moderation decisions.
Respondents' novel distinction between abstract and specific speech is also unworkable. President Roosevelt lambasted not all journalism, but only the muckraking variety; President Wilson complained about stories on a particular topic (the alleged presence of troops in Turtle Bay); and President Biden condemned specific videos about Osama Bin Laden that were circulating online. Gov't Br. 24, 49. Which of those statements were sufficiently abstract" to pass muster? Conversely, why were all of the statements at issue here-including public comments by the President, the Surgeon General, and others about the general problem of COVID-19 falsehoods-too specific? Respondents do not provide any answers, and none are apparent.
The DOJ brief also cites our own amicus brief, which called out how the injunction is so far-reaching that it even precludes companies (of their own free will) reaching out to government officials to inquire about certain information, which is completely ridiculous and unworkable:
The injunction flouts traditional equitable principles because it extends relief far beyond that required to redress any cognizable harm to respondents, and its vague terms would irreparably harm the government and the public by chilling a host of legitimate Executive Branch communications. Gov't Br. 45-50. It also would harm the platforms and their customers by precluding the companies from voluntarily seeking governmental input and collaboration to improve the products they offer. E.g., id. at 44, 49; cf. Floor64 Amicus Br. 5-16.
Anyway, I still fear that this is an easy case for the Supreme Court to screw up big time. Many of the amicus briefs in favor of the states were absolutely crazy (a few were more serious). But this is (finally) a strong brief from the White House explaining the many, many ways in which this particular case is just stupid.
Of course, that won't stop the Supreme Court from issuing a dumb ruling, but maybe it'll at least give a few justices enough pause to realize how stupid this could get if they accept as accurate the lies told down below.