This one is just absolutely bizarre. The Attorneys General of Missouri and Louisiana are now suing President Joe Biden and a whole bunch of his administration, including press secretary Jen Psaki, Dr. Anthony Fauci, DHS boss Alejandro Mayorkas, and newly appointed Disinfo czar Nina Jankowicz, in a nearly incomprehensible complaint that the Biden administration forced social media sites to take down information, mostly before it was in office. Also, apparently Section 230 is both bad
and the Biden support for repealing it violates the 1st Amendment. Or something. It really does not make much sense at all.
Putting the complaint in the best possible light, they’re trying to make a jawboning complaint: that government intimidation is forcing certain content moderation decisions. But even then, this complaint is ridiculously poorly written and laughable.
The complaint kicks off with a weird quote of George Washington on the importance of free speech and then jumps to quoting Supreme Court Justice Clarence Thomas’ extraordinarily non-binding random riffing about Section 230. But the crux of the complaint — again, I must remind you that it is against many parts of the Biden administration — is that they somehow colluded with private social media companies to censor speech, even though they weren’t even the government at that time.
A private entity violates the First Amendment “if the government coerces or induces it to take action the government itself would not be permitted to do, such as censor expression of a lawful viewpoint.” Biden v. Knight First Amendment Institute at Columbia Univ… (Thomas, J., concurring). “The government cannot accomplish through threats of adverse government action what the Constitution prohibits it from doing directly.”
And, yes, it’s true that the government cannot coerce private actors to do things like suppressing speech, but unless there’s a pretty clear threat associated with it, the government does still retain its right to speak out generally on what it likes and does not like. Now, it’s true that the line can get blurry here, but contrary to lots of complaints, the administration merely whining about disinformation on social media does not, in any way, count. We already discussed how the Press Secretary saying they don’t like disinformation on social media comes nowhere close to being an actual threat.
We also discussed how an angry anti-masker suing the administration because his posts got taken off Twitter wasn’t going to work, because Twitter remains a private company. But this lawsuit isn’t from some random anti-masker. It’s from the states of Louisiana and Missouri! States shouldn’t be filing such preposterous lawsuits, but here we are in the year 2022.
Anyway, as you dig into the details of this lawsuit, it gets progressively worse. At least with the anti-masker dude he was pointing to specific content he felt was banned because of the White House. What content are real life Attorneys General Jeff Landry and Eric Schmitt suing over?
The Hunter Biden laptop story in the NY Post.
Perhaps most notoriously, social-media platforms aggressively censored an October 14, 2020 New York Post exposé about the contents of the laptop of (then-Candidate Biden’s son) Hunter Biden, which had been abandoned in a Delaware repair shop and contained compromising photos and email communications about corrupt foreign business deals.
So, so much to unpack here. Let’s start with the big one though:
the Biden administration did not exist at the time of the Hunter Biden laptop story. So there is no way that
the Biden administration could have violated the 1st Amendment into pressuring social media not to carry that story.
And that’s not even getting into how silly the whole claim about the Biden laptop was. We’ve explained over and over and over again why that’s not a story of political censorship. And if you keep claiming it is, then you have to explain why the exact same policy used against a website for revealing internal police chat messages wasn’t equally political (and let’s not even get into the claim that the laptop revealed “corrupt” foreign business deals).
Either way, it takes an
incredible lack of shame to argue that Twitter (a private company) using its existing “hacked materials” policy to block a single link to a single story, is a 1st Amendment violation, because the Biden administration, which did not exist for another three months, was pressuring the company to block it.
And it gets worse.
The second example used in the lawsuit is social media companies limiting discussions of the whole “lab leak” theory… in
early 2020. Also, efforts by social media companies to pull down disinformation about mail-in ballots. All of these things happened under the Trump administration, and not because of government pressure, but because the companies didn’t want to have their platforms abused by malicious actors.
The lawsuit also has a weird, somewhat contradictory position on Section 230. First, it blasts Section 230, saying (falsely) that it “subsidized, protected, and fostered the creation of speech-censorship policies in a small, concentrated group of social-media firms.” This is not just false, it’s laughably false, and any lawyer who claims this is true, shouldn’t still be a lawyer.
The 1st Amendment is what allows
any website to moderate as it sees fit. It’s called editorial discretion. And, again, it applies to any website that is hosting 3rd party speech, and not just a “small, concentrated group of social-media firms.” I mean, I guess it’s not that surprising that a lawsuit that claims that Twitter following its own moderation rules 3 months before the Biden administration exists means the Biden administration violated the 1st Amendment, was written by lawyers who don’t realize the 1st Amendment is actually what protects a website’s rights to moderate.
But then, after blasting Section 230, and insisting that it’s been interpreted wrongly… the lawsuit suddenly does spins around, and claims that… the Biden administration’s many (incredibly stupid) claims to want to repeal Section 230 is the mechanism by which it was threatening social media companies into doing its bidding. So, according to this lawsuit, Section 230 is an evil, unconstitutional, problematic law, but any attempt to reform or repeal it is… itself a 1st Amendment violation. How’s that work?
Finally, the lawsuit calls out the ridiculous “Disinformation Governance Board” that Homeland Security is setting up. We’ve already talked about how dumb the rollout of this board is, and the administration has since fumbled multiple chances to explain what the Board is and what it’s going to do. I’d be fine if they just canceled the whole stupid plan. But, considering it doesn’t even exist, and may be doing something totally benign — like studying how disinformation flows — it seems a bit premature to be suing it as a 1st Amendment violation.
The entire lawsuit reads more like something we read from trolls in our comments, not a lawsuit filed by two actual, honest-to-goodness state Attorneys General. But, kudos, Jeff Landry and Eric Schmitt, you’ve truly outdone yourselves in stupid, performative, nonsense lawsuits.
www.cnn.com
