What’s wrong with protecting disinformation by blocking a bunch of Biden administration agencies and officials from communicating with social media companies about it?
The answer to that question is found right in the 155-page memo issued last week by federal judge Terry A. Doughty, along with his preliminary injunction. Doughty’s ruling was in response to a lawsuit brought by Missouri Gov. Mike Parson’s appointed attorney general, Andrew Bailey, and Bailey’s Louisiana counterpart, Daniel Cameron. The suit accuses President Joe Biden and a long list of others of violating the First Amendment’s free speech protections.
Doughty, a Donald Trump appointee in Louisiana whose oeuvre also includes blocking the vaccine mandate for health care workers, says the case “arguably involves the most massive attack against Free Speech in United States’ history.”
His response is arguably a footlong baloney sub of spicy hyperbole and internal contradictions.
As his memo notes again and again, government attempts to fight disinformation about COVID-19 did begin under Trump. (Of course they did, just as they should have, and would have under any president, who after all has a responsibility to try and protect the public during a pandemic.)
Yet Doughty also says again and again that what he sees as government censorship “almost exclusively targeted conservative speech” and so amounts to “viewpoint discrimination.”
Plaintiffs include Jim Hoft of St. Louis, who owns and runs the conspiracy theory website Gateway Pundit. His fake scoops have included debunked theories about everything from the Parkland school shooting to Nancy Pelosi’s husband Paul supposedly being attacked by his gay lover.
First, there’s nothing “conservative” about spreading bum information about public health, or about election fraud, either, even if anti-vax and antidemocratic views have now been adopted by many on the right.
Doughty himself notes that one of those supposedly targeted, more than two years ago, was Robert Kennedy, Jr., longtime anti-vax wackadoodle and now Democratic presidential candidate, who despite his support from Steve Bannon and others who hope he’ll help get Trump reelected cannot fairly be described as conservative.
That the plaintiffs are all of the far right could mean that Doughty is correct about viewpoint discrimination, but it could also mean that in this moment, the dangerous anti-vax views that started on the left have migrated to and exploded on the right. Thanks largely to Trump, that’s where antidemocratic views have blown up, too.
Surely government officials are supposed to use their bully pulpits to take on any viewpoint that is getting people killed, yet Doughty notes that in a deposition, Surgeon General Vivek H. Murthy’s senior adviser Eric Waldo “admitted that Murthy used his ‘bully pulpit’ to talk about health misinformation and to put pressure on social media platforms.”
Is that not the job of a surgeon general? And if it isn’t, what is?
Because the Republican AGs aren’t suing Trump, the judge says that “whether the previous Administration” did the same thing “is not an issue before this Court, and would not be a defense to Defendants even if it were true.”
It would, however, seem to refute what he’s saying about viewpoint discrimination.
US fights terrorism, child abuse in social media
For years, the government has tried to work with social media companies to get them to inhibit terrorism and criminal activity like child porn.
Those efforts expanded, as they had to, after 2016 election interference and again after the pandemic began.
In his order, the judge said some exceptions to what’s generally considered protected speech would still allow communication between government officials and social media companies on national security threats or voter suppression.
But since disinformation about the pandemic and about election security are national security threats, and disinformation about the pandemic and election security is also what the suit centers on, all that’s left to complain about might only be communications like that time the Biden White House asked Twitter to add a disclaimer to a video that had been edited to make it look as though Jill Biden had been “profanely heckling kids” while reading to them. (Twitter did take the video down, too — more than a month later.)
Democrats, naturally, continue to complain that social media platforms have done far too little to protect our democracy. Even the instances of “coercion” cited by Doughty shows that government pressure on companies to fight disinformation didn’t work very well. Which cuts against his feeling that yes, “the targeted entities reacted in a manner evincing the perception of implicit threat.”
And that was before Elon Musk’s Twitter laid off much of its Trust and Safety division and Meta cut back on Facebook content moderation.
Both Republicans and Democrats have talked about amending Section 230 of the Communications Decency Act of 1996, which essentially lets tech companies make their own decisions about what content to remove.
Trump targeted social media over fact-checking
In 2020, just after Twitter applied fact-checking labels to two of Trump’s tweets, he signed an executive order directing the Federal Communications Commission to review Section 230. The Washington Post reported at the time that the order “could open the door for the U.S. government to assume oversight of political speech on the internet, a broadside against Silicon Valley that a wide array of critics derided as a threat to free speech.”
Doughty’s ruling says Biden administration officials can rightly be considered to have coerced social media companies by threatening, but not actually carrying out, action on 230.
The problems he cites include emails and regular meetings between government and social media officials, but also public statements, as if government officials don’t have the same free speech rights that the judge says they’re suppressing.
At one point, the National Institutes of Health apparently asked Twitter to remove impostor accounts from those posing as Tony Fauci, and they did eject six fake online Tonys.
Doughty also notes a number of times when social media companies asked the Centers for Disease Control and Prevention for COVID-19 guidance. Would it have been better if they had instead queried those pushing ivermectin and hydroxychloroquine on Fox News?
The judge says in conclusion that though this is not his final word, “the evidence thus far depicts an almost dystopian scenario,” and that during the pandemic, the government “seems to have assumed a role similar to an Orwellian ‘Ministry of Truth.’ ’’
The Department of Justice has asked the judge to stay his order, arguing that it’s vague, confusing and likely to be overturned. Yes, yes, and let’s hope.
