The Daily Signal - SCOTUS Social Media Case, Trump Can’t Post Bail, New Report Claims Google Interfered with Elections | March 18

Episode Date: March 18, 2024

TOP NEWS | On today’s Daily Signal Top News, we break down: Did the Biden administration violate the first amendment? That is and was the question before the Supreme Court today in a major free speech case known as Murthy v. Missouri.  Former President Donald Trump has been unsuccessful in securing the hundreds of millions of dollars he needs to post bail after a New York civil fraud ruling against him last month.  A new study from the Media Research Center claims Google has interfered in elections over 40 times. https://www.newsbusters.org/blogs/free-speech/gabriela-pariseau/2024/03/18/41-times-google-has-interfered-us-elections-2008  President Joe Biden and Israeli Prime Minister Benjamin Netanyahu spoke earlier today. Russian President Vladimir Putin has secured another six year term after a 3-day election wrapped up on Sunday.  Relevant Links Listen to other podcasts from The Daily Signal: https://www.dailysignal.com/podcasts/ Get daily conservative news you can trust from our Morning Bell newsletter: DailySignal.com/morningbellsubscription   Listen to more Heritage podcasts: https://www.heritage.org/podcasts Sign up for The Agenda newsletter — the lowdown on top issues conservatives need to know about each week: https://www.heritage.org/agenda Hosted on Acast. See acast.com/privacy for more information. Learn more about your ad choices. Visit megaphone.fm/adchoices

I'm Virginia Allen, and this is the Daily Signal Top News for Monday, March 18th. Here are today's headlines. Did the Biden administration violate the First Amendment? That is and was the question before the Supreme Court today in a major free speech case known as Murphy v. Missouri. And specifically, this case is looking at whether the Biden administration violated the First Amendment when White House officials ask social media companies to censor information about COVID-19 and the vaccine. Here with us to explain more is Heritage Foundation Legal Fellow, Jax Vicks Henry, and Heritage Foundation Senior Research Associate in the Tech Policy Center, Daniel Cochran.

Gentlemen, thanks so much for being here. Thanks for having us. Thank you. Well, Daniel, I want to ask you first, if you would just take us back to the age of the pandemic and walk us through and remind us, what were the kind of request that the Biden administration was making to social media companies? Well, there were a lot. And one of the things to note is that there were sort of three actors here. So there was the social media companies themselves.

There were government agencies like SISA, like the FBI, like the CDC and the White House. And then there were sort of these private in-between groups, organizations like the Stanford Internet Observatory, the election integrity partnership and the what is called the virality project. Essentially, these three groups, so the government and the researchers, what they were doing is they were going to the private social media companies and saying there are people who are questioning, for instance, COVID lockdowns, people who are questioning the efficacy of vaccines, people who are questioning, and in some cases the origin of COVID-19 and others, and it goes beyond just COVID.

some of them were also questioning or asking the companies to censor or action content around the 2020 elections. So the key story there is the Hunter Biden laptop story. Through this sort of nexus of public and private power, the government at the FBI went to Twitter before the Hunter Biden laptop story was released and said, this story might be coming down the pipeline. And if it comes down the pipeline, yada, yada censor it because it's probably foreign propaganda. So these relationships were very extensive and they were ultimately aimed at thousands of pieces of content, many dozens of people, in organizations that were political dissenters on both the election and COVID-19. And how were those social media companies responding when these requests were coming in and saying,

hey, you don't want to look at this information. What did the social media companies do? So the social media companies did a variety of things. Sometimes they would directly action the content, meaning they would ban it altogether. Sometimes they would reduce its distribution. And so that was the famous sort of shadow banning, which essentially means that a company like Twitter can, if you post something, say about COVID, they can make sure that no one actually sees it. So it's on the platform, but very few people see it.

They were also, in some cases, shutting down account access. And this is one key feature that was mentioned in this case. So there were several advocates who used, for instance, Facebook groups to organize opposition to government lockdowns and vaccine mandates. And in a couple, at least one case, the government actually went to Facebook and said, we don't like the message that these advocates are putting out. And Facebook actually not only censored their speech, It shut down.

It prevented them from even using the service. It shut down the groups entirely. So there's a huge range of censorship that was going on here. Okay, Jack, I want to point you in for your legal expertise. How did we get to a place then where we have a lawsuit rose all the way to the level of the Supreme Court? Who are the players here that filed the legal action? So we have a variety of plaintiffs that named plaintiffs include the state of Missouri and the state of Louisiana. We also have some individual plaintiffs.

Most notable among them would be the epidemiologist J. Badacharya and Martin Koldorf. They were authors of what was known as the Great Barrington Declaration, a document that criticized the sort of lockdown-heavy policy response of the Biden administration of COVID-19. And this constellation of individuals and states brought challenges to the government's interference with their speech on social media. they did so by filing first a complaint in the local federal district court, the Western District of Louisiana. That court gave them what's called discovery, meaning they're allowed to look into the facts behind their allegations. That was notable because lots of other COVID-type cases have been brought to court before, but typically they've been dismissed before they were allowed any discovery into the facts. So one of the just unique starting points for this case was that they actually got fact discovery.

So they got to look at the emails and messages being exchanged between White House officials and social media platform executives and nail down exactly the types of conversations, the types of demands, and sometimes the types of veiled threats that were passing back and forth between the executive branch and the platforms. So you get pretty extensive discovery in this case. The plaintiffs collectively move for what's known as a preliminary injunction. So the question is actually less about what's happened to them in the past. It's more about the danger of what will happen to them in the future. Because what they're asking the court to do is they're asking the court to stop the White House or the executive branch more broadly from directly interfacing with these platforms to suppress viewpoints that the administration disagrees with. This means they need to demonstrate a likelihood of future injury,

which may be a little bit harder than it sounds and ultimately could be a stumbling block for the case before the court. Chronologically, it moved from the Western District of Louisiana, granted an injunction in plaintiff's favor. It moved up the chain to the Fifth Circuit Court of Appeals, the regional circuit there. And the Fifth Circuit paired back the scope of the injunction a little bit. It looked at the variety of executive branch actors

and said, okay, some of these weren't actually threatening the platforms. The State Department, for instance, they said, was simply providing information, which is a permissible form of government speech. They were not coercing or unduly encouraging the platforms to take down particular bits of content. So it narrowed the injunction a little bit, but it left the heart of the injunction in place, meaning that the White House, the CDC, FBI, and Sundry other executive branch agencies were not allowed to engage in certain types of contact with the platform.

So fundamentally, the Fifth Circuit agreed with what the district court did. Now it's at the Supreme Court, and to put it miles, the plaintiffs who are now respondents before the Supreme Court are facing some headwinds. They are facing a lot of skepticism of their legal theories. I don't know what kind of detail we want to get into on these, but suffice it to say, they did not have an easy outing today. And I am not ultimately optimistic about the court resolving this case in their favor. Okay. So let's get in just briefly to what you did here before the Supreme Court today.

What were the questions that stuck out to you? and how do you think? I know it's very risky business to predict how the justices will rule. But if you were betting based off questions you heard today, where, how are they leaning? Like I said, I'm not optimistic for the plaintiff respondents, so the states and the individuals who are censored online. The legal issues garnering the most attention today were, one, the threshold doctrine of standing, and then to the merits issue of state action. So standing in brief is a legal doctrine that requires that the person litigating a case

have some sort of concrete stake in the controversy, right? So you need to have an injury that's particular to you. It needs to be traceable to the conduct you're complaining of, and it needs to be redressable, meaning if the court rules in your favor, your life gets better. Sounds simple enough, and as I said, it's, I wouldn't say it's undistening. but it's reasonably clear that the parties here have suffered a type of injury in the past, right? Their speech was demoted or deplatformed or whatever. The question is, what's their forward-looking injury? What's the probability of it? Can they really prove that there is a high

probability of the government causing social media censorship in the future? And that's complicated by a few factors. One is that, as Daniel mentioned, the subject matter of most of these post-reveld around COVID-19. Not all of it, but a lot of it. Because we are past the pandemic stage, because many of the content moderation policy specific to that issue have sort of lapsed or gone into abeyance, there's some difficulty improving. There's a future likelihood of injury. There's also just a problem in the causal chain because you have the government acting not as a direct sensor necessarily. It's acting as a kind of sensor by proxy. And then, And this is where we get into the state action doctrine.

So First Amendment freedoms prohibit, I think it's phrased in the actual document as Congress may not abridge the freedom of speech. Now that's been interpreted a little bit more broadly to say the federal government generally cannot abridge freedom of speech. Reverse incorporated against the states, but that's not the issue here. And what's happened here is that the platforms are the most direct actor, right? the ones that have to take down the posts or deprioritize them or make sure they can't be seen. Sometimes platforms do that of their own accord, right? They don't always need an outside nudge,

let alone a government nudge, to undertake these activities, these so-called content moderation activities. But here, it's evident that the White House and executive agencies brought considerable pressure to bear on the platforms. So much so that the plaintiffs are arguing this is effectively state action. That means that even though the platforms private businesses, even though they are not generally bound to respect the First Amendment, because what they were engaged in as a form of state action demanded by actual government actors, what they did actually has to comply with the First Amendment. And so their censorship would violate those freedoms.

As I said, very skeptical court today. They don't seem to believe that there is a high probability of future injury. they seem to think there's too much room for mischief in the plaintiff's theory of what state action is. They note that the government has the right and kind of the inherent power to engage in public speech and to persuade members of the public, which includes private businesses, to act in the manner that they think most fitting. They are out there trying to persuade the public to act as they think best. And so the government's arguing that if there are too many receipts, restrictions on that. It's going to basically allow, you know, nuisance-minded litigants to audit

all kinds of government speech and bring them to court all the time. Justice Kavanaugh was super concerned that this might prevent executive branch officials from reaching out and stopping the publication of information that had sensitive national security implications. Justice Kagan, who is, a White House alum, was in the Clinton administration, noted that, in her experience, contact is absolutely routine between the government, particularly executive branch, and media outlets. So there's broad concern on the court that they're not being given a workable test or a workable rule that will allow them to distinguish between plainly bad coercion and, you know, what may be just sort of government browbeating. Mm-hmm. Mm-hmm.

Daniel, I want to give you the final word on this. If Jack is right and we see the justices essentially rule in favor of the Biden administration here, what would the result be for the average American? Yeah, I think it's a good question. So I think the outcome would be less restraint on the government's ability to collude with these platforms going forward. But there's something that Jack said that I wanted to touch on. And it goes to some of the questions the justice asked. specifically Justice Kagan and Kavanaugh.

Justice Kavanaugh also is a White House along. Both of them were asking questions about the routine nature of contact between media or, well, media and government. Specifically, government officials reaching out to media or prodding media around, you know, a story they don't like. And the reality, I think one of the factors that really muddies the waters in the analysis is that the tech companies and government have a longstanding working relationship. I mean, if you look back at, say, the war on terror in the early 2000s, right? A lot of partnerships were actually created between the U.S. government and these companies for national security reasons, ostensibly good reasons at first. But the problem is over time, a lot of these relationships blossomed, or I should say,

developed into something else entirely that included other parts of the government. And really, without any level of transparency, right? So the government grew up, the platforms grew up, and with them all these sort of collusive relationships grew up such that it's now really hard for courts to parse out when they're having these exchanges. Well, what is coercion? What is just persuasion? Because the nature of these institutions is sort of long-term working relationships, which I think is, to your question, the fundamental problem. That you have concentrated private power to censor speech. And you have, that attracts all kinds of political interests, including government, who want to wield that power for their means, for their ends.

And that's the fundamental issue we have to wrestle with. Critical. Heritage Foundation's Senior Research Associate in the Tech Policy Center, Daniel Cochran, and Heritage Foundation Legal Fellow, Jack Fitzhenry. Thank you both so much for being with us today. Really appreciate it. Thank you. Well, moving along with the rest of your news for today, former President Donald Trump has been unsuccessful in securing the hundreds of millions of dollars that he needs to post bail after a New York

civil fraud ruling against him last month. The Washington Examiner reports that the former president and the Trump organization owe New York State $464 million. Trump is appealing that ruling against him, but he still has to guarantee the full amount by next Monday. That's March 25th. Trump's attorneys said in a Monday court ruling that the amount of the judgment with interest exceeds 464 million and very few bonding companies will consider a bond of anything approaching that magnitude. In short, a bond of this size is rarely, if ever seen, according to the attorneys. The attorneys also wrote that the actual amount of cash or cash equivalence required to

collateralize the bond and have sufficient capital to run the business and satisfy its other obligations approaches $1 million. As you'll recall, the New York Attorney General Letitia James brought the charges against the former president. She claimed that Trump had inflated the value of his assets in order to receive more favorable loans from banks. A new study from the Media Research Center claims that Google has to be able to. has interfered in elections over 40 times. The report's executive summary was written by Dan Schneider, the vice president of the Media Research Center, Free Speech America,

and Gabriela Peres-Soo, an editor at the site. They wrote that MRC researchers have found 41 times where Google interfered in elections over the last 16 years, and its impact has surged dramatically, making it even more harmful to democracy. In every case, Google harmed the candidates, regardless of party, who threatened its left-wing candidate of choice. The executive summary also says that from the mouths of Google executives,

the tech giant let slip what was never meant to be made public, that Google uses its great strength and resources and reach to advance its leftist values. For example, the executive summary explains that in 2008, Google appeared to select the radical young Barack Obama to help spur to victory over John McCain. Meanwhile, it targeted support for Hillary Clinton for censorship, suspending the accounts of writers who wrote blogs critical of Obama during his primary race against Clinton. More recently, in 2020, according to this executive summary, Google targeted Tulsi Gabbard for censorship. disabling Gabbard's ad account just as she became the most searched candidate following the first Democratic Party primary debate. The tech giant also suppressed news sources critical of Biden and reportedly blocked GOP fundraising emails from reaching user inboxes. Google search results

and even get out the vote reminders favored Democrats, shifting the 2020 election results away from Trump and the GOP by at least 6 million votes. according to this executive summary. We are going to include a link for the full executive report in today's show notes if you'd like to dive into it. President Joe Biden in Israeli Prime Minister Benjamin Netanyahu spoke earlier today. The conversation came just a few days after Senate Majority Leader Chuck Schumer called for a regime change in Israel during a speech on the Senate floor.

Now, the two leaders Biden and Netanyahu previously spoke on February 15th. National Security Advisor Jake Sullivan spoke during a White House press briefing this afternoon about the conversation that those two leaders had and specifically about Rafa. Let's take a listen to what was said via the White House's YouTube page. The president told the prime minister again today that we share the goal of defeating Hamas. But we just believe you need a coherent and sustainable strategy to make that happen. Now, instead of pause to reevaluate where things stand in the campaign and what a job, adjustments are needed to achieve long-term success. Instead of a focus on stabilizing the areas of Gaza

that Israel is cleared so that Hamas does not regenerate and retake territory that Israel has already cleared, the Israeli government is now talking about launching a major military operation in Rafa. The President and the Prime Minister spoke at length about Rafa today. The President explained why he is so deeply concerned about the prospect of Israel conducting major military

operations in Rafa of the kind it conducted in Gaza City and Khan Yunus. First, more than a million people have taken refuge in Rafah. They went from Gaza City to Khan Yunus and then to Rafah. They have nowhere else to go. Gaza's other major cities have largely been destroyed. And Israel has not presented us or the world with a plan for how or where they would safely move those civilians,

let alone feed and house them and ensure access to basic things like sanitation. Second, Rafa is a primary entry point for humanitarian assistance into Gaza from Egypt and from Israel. An invasion would shut that down, or at least put it at grave risk, right at the moment when it is most sorely needed. Third, Rafa is on the border with Egypt, which has voiced its deep alarm over a major military operation there, and has even raised questions about its future relationship with Israel as a result of any impending military operation. Now, the President has rejected and did again today the straw man that raising questions about Rafa is the same as raising questions about defeating Hamas. That's just nonsense.

Our position is that Hamas should not be allowed to save haven and Rafa or anywhere else, but a major ground operation there would be a mistake. It would lead to more innocent civilian deaths, worsen the already dire humanitarian crisis, deepen the anarchy in Gaza, and further isolate Israel internationally. President Joe Biden previously told MSNBC in an exclusive interview that Israel entering into Rafa is a red line. Biden, however, then said that, but I am never going to leave Israel. NBC News reported last week that Netanyahu's office said that he approved plans for a ground offensive there, meaning in Rafa, and that the military was preparing for the operational side and for the evacuation.

of the population there. Russian President Vladimir Putin has secured another six-year term after a three-day election was wrapped up on Sunday in Russia. NPR reported that Putin won 87 percent of the vote and that Russia's Central Elections Commission issued data showing that 77 percent of the country's eligible 114 million voters had cast ballots, which is a new post-Soviet record. Putin said on Monday morning, of course we have lots of tasks ahead, but I want to make it clear for everyone. When we were consolidated, no one has ever managed to frighten us to suppress our will and our self-conscious.

They failed in the past and they will fail in the future. Former British Prime Minister and current Foreign Secretary David Cameron said in a post on X on Monday, today that the polls have closed in Russia following the illegal holding of elections on Ukrainian territory, a lack of choice for voters and no independent OSCE monitoring. This is not what free and fair elections look like. Well, with that, that is going to do it for today's episode. Thanks so much for being with us here on the Daily Signal's top news. And if you have not have the chance, make sure that you check out our morning show. We are currently in the middle of a religious freedom series this morning. Make sure if you miss that one, go back, check it out.

And tomorrow morning, Tyler O'Neill is going to be bringing us another conversation as we discover and discuss the critical issue of religious freedom, not only in America, but across the world. Also take a minute to subscribe to the Daily Signal podcast wherever you like to listen and help us reach more listeners by taking a minute to leave us a five-star rating and review. Thanks again for being with us today. We hope you have a great Monday. We will see you right back here tomorrow morning. The Daily Signal podcast is brought to you by more than half a million members of the Heritage Foundation.

Executive producers are Rob Blewey and Kate Trinko. Producers are Virginia Allen and Samantha Asheras. Sound designed by Lauren Evans, Mark Geinney, and John Pop. To learn more, please visit DailySignal.com.