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5TH CIRCUIT DECIDES TO REHEAR JAWBONING CASE INVOLVING DISINFO RESEARCHERS,
REALIZES IT CAN’T DO THAT YET, CHANGES MIND HOURS LATER

Free Speech

FROM THE THE-WEAPONIZATION-OF-CENSORSHIP DEPT

Tue, Sep 26th 2023 10:40am - Mike Masnick

We’ve been covering the multi-pronged ridiculousness around the
Missouri/Louisiana “jawboning” cases, regarding whether or not the White House
was overstepping the bounds of the 1st Amendment and pressuring private websites
to moderate in a manner they deemed appropriate.

Again, almost everything about this case is bizarre —and getting more bizarre
with each move. Last night, the 5th Circuit made things dumber in a way that it
probably couldn’t do (agreeing to rehear part of a case it had just decided
weeks ago), and then this morning reversed itself because maybe someone realized
that it couldn’t actually do that while the Supreme Court is already reviewing
its decision from a few weeks ago. But it’s all still a mess and so very, very,
very 5th Circuit.

First, the background:

The original theories in the case targeted the Biden administration for things
that happened during the Trump administration (though it covers more than just
that). The district court ruling, released on July 4th for some reason, is
almost entirely disconnected from reality. It invents quotes that were not said
to avoid the fact that the actual quotes say the opposite of what the judge
pretends happened. It takes other quotes completely out of context to show
“coercion” on content moderation decisions, even though those quotes had nothing
to do with content moderation. And it banned a list of 10 activities, including
the ability of the White House to communicate with disinformation researchers at
universities.

We were much happier with the 5th Circuit ruling on appeal, though it still had
a bunch of problems as well. It got rid of 9 out of the 10 prohibitions
entirely, and greatly trimmed back the remaining prohibition, to basically just
reiterate what the 1st Amendment already bars. At the same time, it cut out
three entities from the prohibitions, saying that there was no evidence
presented that they did anything coercive: CISA (the Cybersecurity and
Infrastructure Security Agency), the State Department, and NIAID (the National
Institute of Allergy and Infectious Diseases, which Anthony Fauci ran for
years).

As we noted at the time, this was kind of hilarious, given that the conspiracy
theorists who had filed the lawsuit kept insisting that CISA, the State
Department, and Fauci were all at the center of the grand conspiracy to censor
people on social media, and the 5th Circuit said “nope, nothing to see here.”

That’s not to say there weren’t problems with the 5th Circuit’s ruling. It
continued to use completely out of context quotes. And (somewhat bizarrely) it
includes a ton of quotes with no citations at all, so it’s impossible to see
what the context is. It also makes no effort to distinguish between different
social media sites, and seems to lump them all in together. The White House
appealed, and as we speak the Supreme Court is considering whether or not the
5th Circuit’s injunction should go into effect or not (it’s currently on hold
with an initial deadline for the Supreme Court to decide this past Friday, which
Justice Alito extended until tomorrow).

Either way, the state (and their nonsense peddling co-plaintiffs) seem
especially pissed that CISA was cut out of the case, as they’ve cooked up a
completely alternate reality scenario in which disinformation researchers at a
few universities — mainly the Stanford Internet Observatory and University of
Washington — are somehow grand censors, determining what content gets pulled
from social media.

I don’t know why I need to keep repeating this, but this has never ever been the
case. The researchers are researchers studying the impact mis- and
disinformation and how propagandistic information flows. This is useful. They
have no power to censor literally anything. In the minds of some incredibly
ignorant people, the programs set up by these schools, such as the Election
Integrity Project or the Virality Project, are vast censorship machines. They
are not. They were set up to have a single source for information sharing, which
is a useful tool.

As we’ve explained ad nauseum, nothing in anything the Election Integrity
Project did was about telling anyone to take down anything. The entire program
was just so that people were aware of what content was being shared that might
need responses from officials (things around voting date and place, etc). The
proof that it had nothing to do with censorship is found in the fact that only
13% of the URLs that the EIP flagged were taken down. With 65% of the content
flagged, the social media companies did literally nothing. With some, the
content was “labeled.”

And even that data is distorted, because TikTok was super aggressive in pulling
down lots of flagged content, meaning that for the other big sites (Facebook,
Instagram, Twitter, YouTube, etc.), the amount of taken down content was likely
well below 13%. On top of that, they found that those few cases where content
was taken down were only in the most extreme cases, where it was just out and
out fraud being pushed. Not a disagreement of opinion or political content.

I don’t know how many times it needs to be repeated, but this program was not
about censorship. It had nothing to do with censorship, and was entirely about
better information sharing and communications. This is a good thing.

But, the plaintiffs in this case can’t let go of the utter and complete fantasy
that these researchers are government censors in disguise. So they asked the 5th
Circuit to rehear the case, specifically the parts about CISA and the State
Department working with researchers, again spinning fantasyland conspiracy
theory nonsense:

> CISA is directly involved in the EIP’s censorship activities. “CISA directs
> state and local officials to CIS and connected the CIS with the EIP because
> they were working on the same mission and wanted to be sure they were all
> connected.” ROA.26566 (Doc. 293, at 112). “CISA served as a mediating role
> between CIS and EIP to coordinate their efforts in reporting misinformation to
> social-media platforms, and there were direct email communications about
> reporting misinformation between EIP and CISA.” Id. “EIP identifies CISA as a
> ‘partner in government.’” Id. “The Government was listed as one of EIP’s Four
> Major Stakeholder Groups, which included CISA [and] the GEC.” Id. “CISA
> connected the CIS with the EIP because the EIP was working on the same
> mission,” i.e., censorship of election-related speech, “and it wanted to make
> sure they were all connected.” ROA.26525 (Doc. 293, at 71). “Therefore, CISA
> originated and set up collaborations between local government officials and
> CIS and between the EIP and CIS.” Id. “There were also direct email
> communications between the EIP and CISA about reporting misinformation.”

Again, none of that is nefarious when you understand how the EIP actually works,
something that the nonsense peddlers bringing this lawsuit steadfastly refuse to
learn about.

Indeed, the petition to rehear the case continues to push blatant falsehoods
about the nature of the EIP. For example:

> The EIP engages in mass surveillance of posts in real-time, reviewing hundreds
> of millions and tracking millions as potential “misinformation”: “The tickets
> and URLs encompassed millions of social-media posts, with almost twenty-two
> million posts on Twitter alone.”

This data point has been used repeatedly by nonsense peddlers to claim that the
EIP reported 22 million posts to Twitter. That’s not true. The actual number was
2,890. The 22 million was the number of Twitter posts that the academic
researchers studied after the election to see how disinformation, nonsense, and
propaganda traveled over Twitter. It literally has nothing to do with content
moderation at all, but is simply after-the-fact research looking at information
on Twitter.

But, of course the 5th Circuit, in true 5th Circuit fashion, almost immediately
said yes we’ll revisit this one good part of our ruling. It issued one of its
favorite one line per curiam rulings to rehear this issue, meaning that we have
to go through this bullshit all over again.

But… could it even do that? Especially when the Supreme Court is (as we speak)
reviewing the existing 5th Circuit opinion? The answer is that it’s not supposed
to do that, and it seems like an exasperated person at the 5th Circuit finally
explained that to the out of control judges on the 5th Circuit this morning,
because hours after last night’s one line “sure we’ll rehear it,” this morning
the 5th Circuit issued a “wait, forget we said that” order, and let’s try this
again:

That’s the court taking back its ruling from yesterday, which said they’d rehear
the case (which they shouldn’t do at the moment the Supreme Court is already
reviewing it), but instead “recalling” the mandate from September 11th. As for
the request to rehear the case, rather than just agreeing to do so, it’s now
asking the government parties in the case to respond to the states’ petition
(which, you know, it should have done in the first place).

This is beyond amateur hour. It’s getting to the point where it’s reasonable to
ask if anyone at the 5th Circuit even knows how anything works?

And the most annoying thing about all of this is that this is the real attack on
the 1st Amendment. This whole fucking effort between the Attorneys General of
Louisiana and Missouri (with a helping hand from Rep. Jim Jordan in the House)
is serving to stifle the 1st Amendment rights of these academic researchers (who
again, are not involved in anything even remotely connected to “censorship.”)

The Washington Post has a detailed article on how these lawsuits (and Jordan’s
witch hunts) are basically making it impossible for academic researchers to keep
studying misinformation. Their efforts are trampling on the 1st Amendment rights
of these academics, and no one seems willing to speak up for their rights.

> The National Institutes of Health froze a $150 million program intended to
> advance the communication of medical information, citing regulatory and legal
> threats. Physicians told The Post that they had planned to use the grants to
> fund projects on noncontroversial topics such as nutritional guidelines and
> not just politically charged issues such as vaccinations that have been the
> focus of the conservativeallegations.
>
> NIH officials sent a memo in July to some employees, warning them not to flag
> misleading social media posts to tech companies and to limit their
> communication with the public to answering medical questions.

Honestly, Jordan and Missouri and Louisiana are conducting one of the most
successful government censorship campaigns around, and they’re doing so by
falsely claiming that they’re trying to defend the 1st Amendment and stop the
weaponization of government to censor. The reality is the exact opposite.

> “In the name of protecting free speech, the scientific community is not
> allowed to speak,” said Dean Schillinger,a health communication scientist who
> planned to apply to the NIH program to collaborate with a Tagalog-language
> newspaper to share accurate health information with Filipinos. “Science is
> being halted in its tracks.”

It of course should not go unnoticed that those pushing these campaigns all
happen to be top GOP officials who clearly benefit from blocking the studying of
disinformation — much of which seems to come from their own party and party
leadership. Suppressing such research allows them to lie with impunity.

This is extremely frustrating for a variety of reasons, not the least of which
is that this kind of research is incredibly important in enabling more free
speech, and figuring out how counterspeech works in the so-called “marketplace
of ideas.” What’s clear is that the plaintiffs in this case, along with Jim
Jordan, were losing in the marketplace of ideas, and their response is to
completely turn everything upside down, arguing that research and counterspeech
is censorship (it’s not, it’s speech) and then getting the government to block
it.

It’s a huge attack on the 1st Amendment, and it’s ridiculous that no one is
reporting on it as such. And now, while we avoided disaster with the last 5th
Circuit ruling, the court’s willingness to reopen this issue should be a concern
to everyone — especially given how frequently the 5th Circuit has shown that it
only believes Republicans deserve free speech rights, while everyone else can
have their speech suppressed freely.

Filed Under: 1st amendment, 5th circuit, disinformation, eip, election integrity
project, free speech, jim jordan, louisiana, marketplace of ideas, missouri,
missouri v. biden, research, stanford internet observatory
Companies: stanford

8 CommentsLeave a Comment

If you liked this post, you may also be interested in...
* 5th Circuit Does It Again: Puts Yet Another Law Already Deemed
Unconstitutional Into Effect With No Explanation
* American Library Association Data Shows The Party Of Free Speech Is Doing
More Than Ever To Silence Speech
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Ruling, Showing His Lack Of Attention To Detail
* Federal Judge Says Fuck The 1st Amendment While Upholding Public University's
Drag Show Ban
* White House, States Try To Convince Supreme Court In Jawboning Case

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8 Comments Collapse all replies

This comment is new since your last visit.

Anonymous Coward says:
September 26, 2023 at 11:26 am

> Again, none of that is nefarious when you understand how the EIP actually
> works, something that the nonsense peddlers bringing this lawsuit steadfastly
> refuse to learn about.

You don’t understand political operatives. They have their talking points, and
they’re sticking to them. As long as things are mostly–or partly–working for
them, they have no real incentive to actually learn what’s happening.

It may be annoying to the rest of us, but, as long as the media and the sheeple
swallow their horse-manure, they’re golden.

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That One Guy (profile) says:
September 26, 2023 at 12:53 pm

THE 'IMMUNE SYSTEM VS INFECTIOUS DISEASE' RELATIONSHIP

To those that make their living from fraud, and those who’s entire worldviews
are built upon falsehoods there is no greater threat than those willing and able
to call them out on their lies.

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Matthew Bennett says:
September 26, 2023 at 3:43 pm

IT'S NOT "JAWBONING"

It’s censorship by proxy, you hack.

Stop gaslighting people into thinking the 1A wasn’t violated just cuz you want
in on the fun.

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Threaded [2]
Toom1275 (profile) says:
September 26, 2023 at 7:19 pm

RE:

…parroted nobody mentally competent, ever.

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Threaded [2]
Anonymous Coward says:
September 27, 2023 at 4:44 am

RE:

Where do you stand o banning drag shows, as that is real censorship.

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deMaynerd says:
September 26, 2023 at 6:08 pm

Actually it all comes down to nothing more than ‘double-speak’ and not doing
anyone any good whatsoever.

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Diogenes (profile) says:
September 26, 2023 at 7:47 pm

WHAT HAPPENED?

It feels like the ‘conservatives’ are all losing their minds.

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Threaded [2]
That One Guy (profile) says:
September 26, 2023 at 8:51 pm

RE:

The free market and marketplace of ideas are increasingly looking at what they
are trying to sell and responding with ‘No thanks’.

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contracts and those contracts were with not insignificant third parties.
* pyrex: (FWIW, I think the story told here is "they're not exactly sure what
the actual plan will look like" and "the corporate communications we have
gotten are about the version of the plan that generates the most good
emotions in upper management")
* (I don't know how this got through legal and PR!)
* John Roddy: I'd be more willing to accept that if they hadn't confidently
stated it multiple times and then pushed their latest "clarification" as a
promoted ad.
* pyrex: I do think they're trying to make it look like they know what their
plan is! I just don't believe them.
* thadboyd: Bill Willingham gets tired of DC jerking him around, releases
Fables to the public domain. [article]
https://billwillingham.substack.com/p/willingham-sends-fables-into-the
* Mike Masnick: yeah, a few people have sent that one in... i may try to write
something on it if i have the time (big if)
* candescence: That's one spectacular power move
* Are there any particular legal hurdles that DC might try to take him to court
over?
* thadboyd: I suspect DC's lawyers are trying to figure out the answer to that
question right now.
* If they're smart, they won't do anything, because that would just Streisand
the situation further. But "if they're smart" is a big "if".
* I don't think any major media companies will bite. Nobody's going to try to
make a Fables TV series or movie or anything. As Willingham suggests, the
artists could do their own series without him, but they'd be burning bridges
with DC and might have to self-publish since I suspect the other comics
publishers would be gun-shy about stepping into a potential legal dispute.
* What I think is an interesting legal question is whether this means Chris
Roberson can self-publish that Fairest arc that DC shelved because he said
mean things about them. [article]
https://bleedingcool.com/comics/recent-updates/now-dc-comics-fires-chris-roberson-off-fairest/
* candescence: I mean, it's Warner-Discovery, _sooooooooooooo_
* John Roddy: PRO TIP! If you're going to fake evidence that you complied with
a court order, don't leave proof that you're faking it in the video you just
submitted to the court in response to an order to show cause for you
shouldn't be held in contempt.
* Mike Masnick: that's gonna need some further details john...
* John Roddy: Well, here's Exhibit B: [link]
https://www.courtlistener.com/docket/66752330/79/2/stebbins-v-google-llc/
* Yes, Stebbins has already been declared a vexatious litigant in this circuit.
But no, he's not done pushing his luck even further.
* candescence: DC obviously disagrees on the public domain thing: [article]
https://www.looper.com/1395584/dc-comics-rejects-fables-creator-public-domain-claim-vows-necessary-action/
* But it feels like Bill wouldn't pull this stunt if he didn't have a leg to
stand on, so there's a good chance it'll go to court anyway.
* This tweet has a relatively recent copyright notice from the Fables comics,
it directly states that while there's apparent joint ownership of the
copyright, Willingham alone owns the trademarks to the characters, not DC:
https://twitter.com/Comixace/sta...
https://twitter.com/Comixace/status/1702429019696935024
* Read into it how you will, I suppose.
* pyrex: I suspect he's not allowed to do this: if he were allowed to do this,
then under his current reasoning, he would have been able to evade the
original contract basically just by asking a friend to do this.
* (er, to do whatever he wanted done)
* I don't know what will happen next.
* BentFranklin: The Internet's Best Boy is dead. Now all we have is The
Internet's Worst Boy.
* The Verge: X continues to throttle links to competitors [article]
https://www.theverge.com/2023/9/15/23875251/x-twitter-links-throttling-facebook-instagram-threads
* Samuel Abram: @Mike Masnick I’m at a Peter Gabriel concert and I think you
would’ve loved to hear what he said about AI
* Mike Masnick: he's great on all this stuff
* Samuel Abram: He absolutely is. It doesn’t hurt that he’s also an excellent
musician and songwriter, not to mention that his voice hardly aged in
**fifty** years!
* John Roddy: Didn't Fyk *just* have his ass handed to him in DC federal court
when they refused to find 230 unconstitutional?
* Mike Masnick: you think that's going to stop him?
* this new filing is hilarious
* John Roddy: I think I found the wavelength he's operating on.
* Samuel Abram: Galaxy brainwave?
* John Roddy: In the giant pile of reasons the DC court handed him for
dismissing the case, one of them was that he had an opportunity to try the
challenge in the one against Facebook.
* So he's taking that as a suggestion.
* > Put differently, the Ninth Circuit court confirmed that the “Good
Samaritan” intelligible principle / general provision overarching Section
230(c) most certainly applies to the Section 230 immunity analysis.
* Put differently, Fyk is making a brilliant argument here.
* Mike Masnick: My favorite is claiming that this lawsuit has involved "two
trips to SCOTUS" -- and how did those go, Jason?
* John Roddy: I don't know. He blocked me as soon as he realized that his
mocking attempt to call me a "section 230 expert" suddenly had credibility
after he failed.
* Mike Masnick: this is in the filing.
* John Roddy: I forgot to check. Has he tried citing the uber-bonkers second
decision from CA9 in Enigma?
* Mike Masnick: he has in the past many times.
* mildconcern: I read that three times my brain hurts.
* John Roddy: RFK Jr somehow managed to fail so hard that he forgot to check if
it's even possible to appeal the thing he failed on.
* Which CA9 just confirmed it isn't.
* candescence: Was this ever covered on techdirt?
https://x.com/SadlyItsBradley/st...
https://x.com/SadlyItsBradley/status/1679499245483708416?s=20
* [link]
https://www.courtlistener.com/docket/67569388/valve-corporation-v-rothschild/
* The actual patent is about streaming media, and it's from _2014_, meaning
it's probably fairly easy to invalidate.
* The main reason this is relevant again is that Rothschild apparently took
this as a declaration of war and is counter-suing Valve and Gearbox three
times over
* The complaints got posted on ResetEra but I can't find the specific source of
the documents yet
* Mike Masnick: i don't think so... i don't think i was even aware of it at all
* i see these suits, which is what i'm guessing you're talking about: [link]
https://www.courtlistener.com/docket/67805316/social-positioning-input-systems-llc-v-valve-corporation/
and [link]
https://www.courtlistener.com/docket/67800931/symbology-innovations-llc-v-valve-corporation/
* candescence: There's also one more involving a company called "Quantum
Technology Innovations"
* Mike Masnick: gotcha. [link]
https://www.courtlistener.com/docket/67805229/quantum-technology-innovations-llc-v-valve-corporation/
* candescence: And yeah those are definitely the ones I mean
* Mike Masnick: all assigned to judge gilstrap, of course
* welp, i'll add this to my list to look at... not sure i'll have time, but
we'll see
* candescence: But basically this all started because multiple companies owned
by Rothschild tried to extort Valve over the same patent despite Valve having
signed and paid a licensing agreement the first time around
* Valve got sick of their shit and from what I understand rather than arguing
that it already signed a licensing agreement, they took the more difficult
road of basically seeking to have the patent invalidated altogether, as well
as suing the companies for wrongdoing under the Washington State Patent Troll
Prevention Act
* I just thought it was worth bringing to your attention, I suppose
* John Roddy: Most patent trolls seem to have figured out that remaining in the
background and not poking lions is the best strategy for survival.
* But it turns out that a business strategy based on pure greed ends up being
hard to control.
* candescence: The three cases above deal with patents involving 1) scanning a
QR/bar code with a portable scanning device, 2) a remote input, storage, and
sharing of location addresses for GPS devices, and 3) something that sounds
_suspiciously_ like a CDN.
* mildconcern: If anyone needs to feel better about their work, go look at any
Delta account and read the comments. And then thank everything you believe in
that you're not in charge of their social media.
* candescence: So Rosenworcel has directly stated she wants to straight up
reinstate the Obama-era net neutrality rules
* John Roddy: The Fifth Circuit has once again proven my point that anyone
trying to understand law should have a decent grasp on the nuances of quantum
mechanics first.
* candescence: The FTC is also suing Amazon
* Samuel Abram: https://tenor.com/view/good-grea...
https://tenor.com/view/good-great-stand-up-donald-glover-gif-5236308

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