Tangle - The SCOTUS social media case.

Starting point is 00:00:00 Breaking news happens anywhere, anytime. Police have warned the protesters repeatedly, get back. CBC News brings the story to you as it happens. Hundreds of wildfires are burning. Be the first to know what's going on and what that means for you and for Canadians. This situation has changed very quickly. Helping make sense of the world when it matters most. Stay in the know. CBC News.

Starting point is 00:00:29 Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Wu, a background character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+. The flu remains a serious disease. Last season, over 102,000 influenza cases have been reported across Canada, which is nearly double the historic average of 52,000 cases. What can you do this flu season? Talk to

Starting point is 00:01:05 your pharmacist or doctor about getting a flu shot. Consider FluCellVax Quad and help protect yourself from the flu. It's the first cell-based flu vaccine authorized in Canada for ages six months and older, and it may be available for free in your province. Side effects and allergic reactions can occur, and 100% protection is not guaranteed. Learn more at flucellvax.ca. From executive producer Isaac Saul, this is Tangle. Good morning, good afternoon, and good evening, and welcome to the Tangle Podcast, the place we get views from across the political spectrum, some independent thinking, and a little bit of my take. I'm your host, Isaac Saul, and on today's episode, we're going to be talking about a Supreme Court case that was argued earlier this week. Pretty interesting. A lot of implications for

Starting point is 00:02:05 social media and the government's role in limiting quote-unquote disinformation. We're going to be talking about what happened in the arguments and where things kind of stand now. As always, before we jump in, we'll kick things off with some quick hits. with some quick hits. First up, hours after the Supreme Court cleared the way for enforcement of a strict new immigration law that allows Texas state police to arrest people on suspicion of illegally crossing the border, the law was blocked by a federal appeals court from taking effect. Number two, congressional leaders in the White House have reached an agreement on funding for the Department of Homeland Security, a major step toward finalizing a broader funding package. Number three, businessman Bernie Moreno, who was

Starting point is 00:02:55 endorsed by former President Donald Trump, won his Senate primary in Ohio and will face Democratic Senator Sherrod Brown in November. Primary races were also held in Arizona, Florida, Illinois, and Kansas. Number four, former President Donald Trump sued ABC for defamation after ABC host George Stephanopoulos said several times on air that Trump was, quote, found liable for rape, end quote. And number five, Brazilian federal police have indicted former President Jair Bolsonaro on allegations of falsifying his COVID-19 vaccination data. Should the government be able to pressure social media platforms to remove misinformation online? government be able to pressure social media platforms to remove misinformation online?

Starting point is 00:03:50 That question is now before the Supreme Court after years of a Republican-led legal campaign that says Biden administration efforts to reduce misinformation online are equal to censorship. The Supreme Court is weighing in on efforts to remove misinformation on social media and what may cross the line into censorship. Justices heard arguments today stemming from lawsuits alleging unfair government pressure. During the early months of the Biden administration, White House officials urged sites like Facebook and Twitter to take down posts spreading falsehoods about vaccines or alternative treatments and some election-related posts. On Monday, the Supreme Court seemed likely to side with the Biden administration

Starting point is 00:04:27 in Murthy v. Missouri, a dispute between the administration and two Republican-led states, as well as five social media users, over how the federal government can combat controversial social media posts it deems misinformation on topics like COVID-19 and election fraud. A quick rewind here. In 2021, the Biden administration was attempting to curb what it deemed misinformation about COVID-19 vaccines. In 2022, a group of Republican attorneys general representing private individuals in the states of Louisiana and Missouri sued the Biden administration, saying its actions had amounted to unconstitutional censorship. The group claimed the administration engaged in a pressure campaign

Starting point is 00:05:07 aimed at social media companies, in which it regularly flagged posts that it thought would contribute to vaccine hesitancy. U.S. District Judge Terry Doughty ruled in favor of the states, ordering the Biden administration and top officials not to communicate with social media companies about certain content. The U.S. Court of Appeals for the Fifth Circuit then affirmed parts of that ruling but narrowed the agencies that could contact social media companies to the White House, the Surgeon General's Office,

Starting point is 00:05:34 the FBI, and the Centers for Disease Control and Prevention, or CDC. We covered that decision in September. So now what? Well, the White House appealed that ruling to the Supreme Court, which suspended Doughty's ruling and agreed to hear the case. On Monday, a majority of justices seemed to side with the Biden administration. While the Biden administration spent some time arguing that the case should be thrown out because the states didn't have standing, much of oral arguments focused on the merits of the dispute and whether the Biden administration's contacts with social media companies actually violated the First Amendment rights of the challengers. Deputy U.S. Solicitor General Brian Fletcher, representing the Biden administration,

Starting point is 00:06:13 argued that its actions amounted to a classic example of the bully pulpit, and officials were simply speaking their mind and calling on the public to act. He said the Court of Appeals mistook persuasion for coercion. Louisiana Solicitor General J. Benjamin Aguinaga countered Fletcher, saying the government was badgering platforms constantly and with the implication of their leverage, like the possibility they could bring antitrust laws against major social media companies that didn't cooperate. This badgering, which sometimes included verbal abuse and profanity, came with warnings that the highest levels of the White House are concerned about what the platforms were doing and were considering our options on what to do. Some of the platforms responded by changing their policies and practices.

Starting point is 00:06:56 Justices Elena Kagan and Brett Kavanaugh both referenced their own experience working in the federal government and expressed skepticism about Aguinaga's position. working in the federal government and expressed skepticism about Aguinaga's position. Kavanaugh, who served in the George W. Bush administration, said government public officials regularly call up media and berate them, adding that a broad ruling against the Biden administration would mean that traditional everyday communications would suddenly be deemed problematic. Kagan quipped that she had some experience with encouraging press to suppress their own speech and that this literally happens thousands of times a day in the federal government. Justice Kentonji Brown Jackson asked Aguinaga in a hypothetical TikTok challenge where teenagers were jumping out of progressively higher windows, leading to injuries and death, could the government call platforms and say the

Starting point is 00:07:39 information they were allowing is creating a public health emergency? Aguinaga said the government could not and argued that when the government emergency, Aguinaga said the government could not and argued that when the government tries to use its ability as the government and its stature as the government to pressure them to take it down, it becomes a free speech issue. While court observers noted a majority of the justices seemed to side with the Biden administration, Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas appeared open to letting the restrictions on government contacts with social media companies go into effect. Today, we're going to examine some arguments from the left and the right about these arguments, and then my take. We'll be right back after this quick commercial break.

Starting point is 00:08:29 First up, we'll start with what the left is saying. The left is hopeful the court will overturn the Fifth Circuit decision. Some are heartened that some of the court's conservative justices seem most skeptical of the plaintiff's argument. Others say the case should never have made it to the Supreme Court in the first place. The Los Angeles Times editorial board said the Supreme Court should affirm that the government complaints are not free speech violations. The U.S. Fifth Circuit Court of Appeals reasoning, if accepted by the Supreme Court, would prevent the government from suggesting that some material be taken down or limited in its dissemination because of concerns about public health or national security,

Starting point is 00:09:05 the board said. The Supreme Court should resoundingly reject that approach and make it clear that the government violates free speech only when it uses its power to coerce compliance. As Kavanaugh suggested at oral arguments, such limitations on the government would forbid administrations from something they have done regularly even before the rise of the internet, expressing displeasure about particular stories to news outlets, the board said. A ruling against Louisiana and Missouri would make it clear that the government officials may propose to social media companies that they remove or restrict certain information so long as there is no coercion. In Vox, Ian Milliser suggested the Supreme Court's center-right

Starting point is 00:09:43 appears increasingly frustrated with the judiciary's far-right. These plaintiffs were able to identify several examples where government officials were curt, bossy, or otherwise rude to representatives from the social media companies when those companies refused to pull down content that the government asked them to remove. to remove. Notably, however, neither these plaintiffs nor the Fifth Circuit identified a single example where a government official threatened some kind of consequence if a platform did not comply with the government's requests. Justices Elena Kagan and Kavanaugh seemed especially frustrated with the Fifth Circuit's attempt to shut down communication between the government and the platforms, and for the same reason. Both recoiled at the suggestion that the White House can't try to persuade the media to change what it publishes, Millhiser wrote. For the time being, at least, most of the justices appear to recognize that the government needs to function,

Starting point is 00:10:34 and that means that the Fifth Circuit's attempt to cut off communications between the Biden administration and the platforms is likely to fail. In Just Security, Justin Hendricks and Ryan Goodman asked, how did Murphy v. Missouri get this far? There are important questions about the relationship between social media companies and the U.S. government, particularly when it comes to any government involvement in content moderation, Hendricks and Goodman said. While the legal questions presented are legitimate, a substantial amount of the underlying evidence now before the court in this case is problematic or factually incorrect. Snippets of various communications between the government, social media executives, and other parties appear to be stitched together, nay,

Starting point is 00:11:15 manufactured, more to support a culture war conspiracy theory than to create a credible factual record. The plaintiffs may have succeeded in significant part no matter how the Supreme Court ultimately rules, though a ruling in favor of the plaintiffs would boost a broader political and sociocultural strategy, Hendricks and Goodman said. In a contentious election year, there are signs this broader effort has succeeded in chilling coordination between platforms, government, civil society groups, and independent researchers on efforts to combat myths and disinformation. Alright, that is it for what the left is saying, which brings us to what the right is saying. The right thinks the government clearly coerced social media companies to do its bidding. Some say a ruling for the plaintiffs would protect the First Amendment. Others push

Starting point is 00:12:09 back on the idea that social media companies should be censoring inaccurate content at all. The Wall Street Journal editorial board wrote about the government's thinly-veiled social media censorship. The line between government coercion and attempts to persuade can blur, and the Supreme Court's oral arguments on Monday in Murthy v. Missouri added little clarity. This is too bad, because the government's facile argument deserves a rebuttal, the board said. Government officials don't threaten legal or regulatory retribution against newspapers, which they have little power to carry out. The same isn't true for social media platforms. White House officials issued thinly

Starting point is 00:12:45 veiled threats of legal consequences if platforms didn't do more to police so-called misinformation. It's hard to believe social media executives would have been as obeisant without the government's sword hanging over them. In private, White House officials also didn't merely implore platforms to increase censorship. They demanded they do so and held regular meetings with executives when they pressed for updates, the board said. Injunctions by lower courts also may have been too broad, but none of this should stop justices from making clear that government can't use threats of punishment to coerce platforms to suppress speech. In the Daily Caller, Jenin Younes, one of the lawyers for the plaintiffs, argued SCOTUS must protect the First Amendment. Billed as an effort to protect Americans from misinformation about a public health emergency,

Starting point is 00:13:31 the record in this case reflects that the White House's censorship operations spread its tendrils across public discourse on a wide variety of pandemic-related topics, including personal accounts of vaccine side effects and provably true statements, Yoon said. The Supreme Court has made clear that government cannot co-opt private companies to accomplish what it cannot directly. As the court has recognized, what is deemed false one day might the next day be recognized to be true. So the notion that the government can effectively serve as gatekeeper of the truth is fundamentally flawed. But it is even more shocking when government officials acknowledge they are seeking to silence information that is or might be true,

Starting point is 00:14:10 Yunus wrote. This is the kind of heavy-handedness we should expect whenever the government disregards our civil liberties. Breaking news happens anywhere, anytime. Police have warned the protesters repeatedly, get back. CBC News brings the story to you as it happens. Hundreds of wildfires are burning. Be the first to know what's going on and what that means for you and for Canadians. This situation has changed very quickly. Helping make sense of the world when it matters most. Stay in the know.

Starting point is 00:14:45 CBC News. Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Wu, a background character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+.

Starting point is 00:15:12 In hot air, Jazz Shaw said the case highlights the way that social media has evolved to become the modern version of the public square. The courts are being forced to wrestle with the appropriate definition of influence in such situations. The administration is quick to point out that the government has never been found to have imposed any sort of penalties or punishment on companies that declined to remove content that was deemed controversial, Shaw said. Of the many problems with this case, perhaps the largest is the fact that the social media companies are not technically capable of engaging in censorship. Even if the plaintiffs prevail, the government has plenty of other ways of indirectly communicating its desires

Starting point is 00:15:53 regarding such content to social media platforms. In reality, the platform shouldn't be squelching any content except that which engages in or promotes crimes. This would be true of posts promoting physical violence, the abuse of children, the distribution of child pornography, offers to sell illegal drugs, and other acts of similar nature. Everything else you are likely to see online is simply a series of opinions of varying quality. It shouldn't be a crime to post your opinion, even if you are wildly wrong. All right, that is it for what the left and the right are saying, which brings us to my take. So when we first covered this in September, I sided almost entirely with the right. My position did not change much after hearing oral arguments. In order to talk about what I think is most important here, I'm going to mostly ignore

Starting point is 00:16:49 the standing question and focus on the merits of this case. It is worth noting that the justices seem split on whether Louisiana, Missouri, and these social media users had standing to sue, and the case could start and stop there. But the merits are far more interesting and weighty to debate. Fundamentally, the threat of government coercion and censorship feels more dangerous to me than the possibility of private platforms being left alone to make moderation decisions. I know Facebook and Twitter, now X, aren't exactly sympathetic figures here, but I'm imagining a world where Tangle becomes a global media empire with dozens of writers across dozens of countries soliciting interesting and provocative opinions to challenge people's ideas. And then I start getting emails from people at the White House telling me they'd prefer if I

Starting point is 00:17:36 stopped what they define as misinformation while the president opines on heavily regulating online newspapers that have accrued massive public influence. That would be deeply concerning. It should go without saying that some of what the government's contacts were doing was obviously helpful, like flagging accounts where people are impersonating the president's family or sending over posts that amounted to terroristic threats. And of course, government officials did not write an email to Facebook executives saying, remove this post criticizing us or we're going to regulate your company into oblivion. They know doing that would be an obvious breach of their speech rights. But is that really much different from what they actually did? If you are a Facebook executive reading emails from someone at the White House implying that

Starting point is 00:18:19 the president is very concerned about what your platform is doing, considering regulatory action and then making a request, how would you take it? In one instance, an official said removing bad information is one of the easy low-bar things you guys can do to make people like me think you're taking action. That doesn't mean all government communication is threatening or coercive. Of all the writing I came across on this, I thought Ilya Soman's take was the clearest and the most to the point. writing I came across on this, I thought Ilya Somin's take was the clearest and the most to the point. As he says, the free speech clause doesn't restrict any and all government efforts to constrain speech. Rather, it bars government actions abridging the freedom of speech. If the

Starting point is 00:18:55 state or anyone else persuades a private entity to cut back on speech voluntarily, the freedom of speech has not been abridged, even if the total amount of speech may be reduced. In other words, there is a difference between the state convincing Facebook to remove a dangerous post and a state coercing Facebook into thinking the government may punish it if it doesn't. Government officials are perfectly within their rights to email a social media executive or a news outlet and say, hey, you are letting this post go viral, but here are 10 reasons we think it is spreading harmful information. They can persuade them that they should take action on certain posts, but they cannot coerce them. This obviously complicates

Starting point is 00:19:35 things. A clever government official could easily make a threat without really making a threat. Yet the Fifth Circuit found that the Biden administration did actually threaten to punish social media firms that did not comply, and I think they were right to find that. Here is how the Fifth Circuit described the evidence. The officials made inflammatory accusations, such as saying that the platforms were poisoning the public and killing people. The platforms were told they needed to take greater responsibility in action. Then they followed their statements with threats of fundamental reforms like regulatory changes and increased enforcement actions that would ensure the platforms were held accountable. That government employees talk to private sector employees all the time, as Kavanaugh and Kagan have said, is fine, but that doesn't mean that

Starting point is 00:20:18 there isn't a line they can cross. Love him or hate him, Matt Taibbi generally has this story right. There is a wide-scale partnership agreement between intelligence and enforcement agencies and media distributors, which is distinct from a PR person in the White House badgering a reporter for using a few quotes they don't like. to defining what qualified as misinformation and then trying to get social media companies to remove it, all while administration officials spoke publicly and privately of the need to take regulatory action against those companies. All of this, of course, comes with the hindsight that much of the debated posts were debates probably worth having. Hindsight is 20-20, but I certainly do not think that the posts questioning the origins of COVID or the efficacy and safety of vaccines rose to a public safety concern the government needed to crush by coercing social media companies into doing their bidding. It's also worth remembering where we were around this time. In January of 2022, one Rasmussen poll found that close to 50% of Democrats were willing

Starting point is 00:21:21 to fine or imprison people who criticized vaccines publicly. of Democrats were willing to fine or imprison people who criticized vaccines publicly. Over one in five Democrats supported temporarily removing unvaccinated parents' custody of their children. That's just one poll from a well-known right-leaning pollster, but those numbers are still terrifying. Attitudes like those were prevalent at the time in the media and among government officials and are part of why I'm so skeptical of efforts to combat misinformation. It is precisely in that environment where First Amendment speech protections are most important. Frankly, I was surprised there wasn't more pushback from Justices Alito, Thomas, and Gorsuch, whom I expected to have more forceful impact on oral arguments. I was also surprised there wasn't more pushback from writers on the left. In the end,

Starting point is 00:22:08 it seems likely that the Supreme Court sides with the Biden administration and either narrows or throws out the Fifth Circuit ruling altogether. And that's fine, as I don't think a sweeping injunction that prohibits government officials from contacting these companies is necessary or right that would tilt the scales to violating the government's speech rights. However, my sincere hope if the Biden administration prevails is that the court finds a way to delineate between coercion and persuasion and somehow limits the broad latitude the federal government has to influence online content moderation.

Starting point is 00:22:37 The court's ruling should narrow the ways the government can pressure these companies and make it clear that any kind of coercive action is a punishable violation of speech rights. We'll be right back after this quick break. All right, that is it for my take, which brings us to your questions answered. This one's from Ken in Lisbon, Wisconsin. Ken asked a question about our new podcast, The Undecideds, and he said two of the five undecideds came from swing states. Why not all five? It would have been interesting to see how the undecideds broke in the states where they

Starting point is 00:23:19 play the key role. So this is a great question. Actually, a good opportunity to talk a little bit about our selection process for the new podcast series, The Undecideds, that we launched on Sunday. I'll take the opportunity to sort of segue this into a promo. In our premiere episode, which you can check out on this podcast channel, we introduced you to the five people we're following. We learned about their backgrounds and got a sense of their political outlooks. We selected those five people, Brian from Arizona, Diana from Florida, Claire from Ohio, Zahid from California, and Phil from Pennsylvania. Two of those states are considered swing states

Starting point is 00:23:56 in the upcoming election, Arizona and Pennsylvania, but the other three aren't. We did consider just selecting people from swing states, but we ultimately decided against it for two big reasons. One, those states are going to be overrepresented in coverage already. And two, states like Florida, Ohio, and California still have very important down ballot races every year, and Ohio and Florida have been known to swing presidential races too. Geographical diversity was just one part of our calculus. We wanted demographic diversity too. That means we have some diversity of representation by race, age, and gender. More importantly, we wanted diversity in thought. We have people who are religious and non-religious,

Starting point is 00:24:35 people who never thought they'd consider Trump, people who are leaning away from Biden, people who are out of the political mainstream, people who closely follow the news, and people who are casting their first ever presidential ballot. Lastly, the most important criteria of all was to select people who have the courage to be honest about their backgrounds, misgivings, and thought processes. We narrowed down the massive response we got from readers to about three dozen people we reached out to personally. We narrowed that group down to about 15 we thought could really be compelling interviewees, and then we made our final decision to try to get those demographic, ideological,

Starting point is 00:25:09 and geographic diversity of representation. We're really happy with how that turned out, so if you still have not yet, you can go check out that first episode of The Undecideds right here on this podcast channel. All right, next up is our under the radar section. Schools across the United States and Europe are beginning to lock up students' phones during class or ban their presence at schools outright. Schools in at least 41 states have bought magnetic pouches that allow them to seal the phones off from students without turning them off or confiscating them. The results for us were just the game changer, Patricia Scheipp, the president of the Akron Education Association, said after her district began using them. Phone bans aren't new in school, but bans are becoming increasingly common as risks about screen time and social media become better

Starting point is 00:25:59 understood. Vox has an article breaking down the debate, and there's a link to it in today's episode description. All right, next up is our numbers section. The percentage of Americans who said the U.S. government should take steps to restrict false information online, even if it limits freedom of expression, was 39%, according to a 2018 Pew Research poll. The percentage of Americans who said the U.S. government should take steps to restrict false information online was 55% in a 2023 poll. The percentage of Americans who said tech companies should take steps to restrict false information online was 56% in a 2018 poll. And in 2023, the percentage of Americans who said tech companies should take those steps was 65%. The percentage of Americans who said tech companies should take those steps was 65%.

Starting point is 00:26:46 The percentage of Americans who said they don't trust social media companies to make fair decisions about what information is allowed to be posted on their platforms was 75%, according to a 2021 survey from Cato and YouGov. And finally, the percentage of Americans who said social media sites should use the First Amendment as the standard for their content moderation decisions was 58%. All right, and last but not least, our Have a Nice Day section. Paul Myers, who lives in New York, England, suffered a cardiac arrest at a McDonald's on his way to Sunday services.

Starting point is 00:27:21 Thinking quickly, one patron performed CPR long enough for another unlikely hero to step in. An employee trained in using the defibrillator used his knowledge to save Paul's life. From there, he was taken by helicopter to a hospital where he recovered. Mr. Myers expressed gratitude to everyone, especially the McDonald's employee. He didn't want to take any glory, and that really impressed me because what he did and what the other man did, those first few moments are really key. And without that, I probably wouldn't be speaking to you today, Meyer said. The BBC has a story, and there's a link to it in today's episode description. Alright everybody, that is it for today's podcast.

Starting point is 00:28:03 As always, if you want to support our work, you can go to readtangle.com forward slash membership. Don't forget, we've got a job opening to help out on this podcast and our YouTube channel. There's a link to it in today's episode description, also up on our website and in the newsletter. We'll be right back here same time tomorrow. Have a good one.

Starting point is 00:28:45 Peace. The logo for our podcast was designed by Magdalena Bokova, who is also our social media manager. Music for the podcast was produced by Diet75. And if you're looking for more from Tangle, please go to readtangle.com and check out our website. We'll see you next time. becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+. The flu remains a serious disease. Last season, over 102,000 influenza cases have been reported across Canada, which is nearly double the historic average of 52,000 cases. What can you do this flu season? Talk to your pharmacist or doctor about getting a flu shot. Consider FluCellVax Quad and help protect yourself from the flu.

Starting point is 00:29:50 It's the first cell-based flu vaccine authorized in Canada for ages six months and older, and it may be available for free in your province. Side effects and allergic reactions can occur, and 100% protection is not guaranteed. Learn more at FluCellVax.ca.

Tangle - The SCOTUS social media case.

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