You’re Wrong About Disinformation

“People believe and say things that aren’t true all of the time, of course. When false beliefs influence the outcomes of major elections or, say, decision making during a pandemic, it’s reasonable to consider ways to minimize the ill effects those false beliefs can create. But efforts by public officials to combat them—and tremendous confusion over how to identify them—may well make things worse, not better.”

Two GOP judges just stripped social media companies of basic First Amendment rights

“The decision in NetChoice v. Paxton reinstates an unconstitutional Texas law that seizes control of the major social media platforms’ content moderation process, requiring them to either carry content that those platforms do not wish to publish or be so restrictive it would render the platforms unusable. This law is unconstitutional because the First Amendment prohibits the government from ordering private companies or individuals to publish speech that they do not wish to be associated with.”

“Although the court did not identify which of the three judges dissented, it’s not hard to guess how the votes broke down. The panel includes Judge Leslie Southwick, a relatively moderate conservative appointed by President George W. Bush, as well as two notoriously right-wing judges.
Judge Edith Jones is a former general counsel to the Republican Party of Texas who was appointed by President Ronald Reagan when she was just 35 years old. Since then, she’s developed a reputation as an especially caustic conservative — Jones once told a liberal colleague to “shut up” during a court hearing, and she joined an opinion arguing that a man should be executed despite the fact that his lawyer slept through much of his trial.

The third judge, Andy Oldham, is a young Trump appointee who clerked for Justice Samuel Alito. Among other things, Oldham is the author of a Fifth Circuit opinion permitting a Trump-appointed district judge to seize control of much of the nation’s policy governing the US-Mexico border.

It is likely, but not entirely certain, that Jones and Oldham are right-wing outliers even when compared to the median justice on the Supreme Court. In 2021, Justice Clarence Thomas published an opinion expressing sympathy for the “common carrier” theory Texas relies on in NetChoice. But that opinion was joined by no other justice.

In any event, given the enormous disruption the Fifth Circuit’s NetChoice decision is likely to create for social media companies, it is likely that they will ask the Supreme Court to intervene very soon. We should know in very short order, in other words, whether the Supreme Court intends to write social media out of the First Amendment.”

The Supreme Court hands the Christian right a victory it actually deserved to win

“The Supreme Court, in an increasingly familiar development, handed a victory to a Christian conservative organization on Monday. The Court’s decision in Shurtleff v. Boston establishes that this organization, Camp Constitution, should have been allowed to fly a Christian-identified flag from a flagpole outside Boston’s city hall.

But Shurtleff is unlike several other high-profile victories for religious conservatives that the Court has handed down in recent years because the justices did not need to remake existing law in order to reach this result. The decision was unanimous (although the justices split somewhat regarding why the plaintiffs in this case should prevail), with liberal Justice Stephen Breyer writing the majority opinion.

The case involves three flagpoles standing outside of Boston’s city hall. The first flagpole displays the US flag, with a smaller flag honoring prisoners of war and missing service members below it. The second pole features the Massachusetts state flag. And the third typically — but not always — displays the city’s own flag.

This third flagpole, and the city’s practice of sometimes allowing outside groups to display a flag of their choice from it, is the centerpiece of Shurtleff. Since at least 2005, the city has permitted outside groups to hold flag-raising ceremonies on the plaza during which they can raise a flag of their choosing on the third flagpole.

At various times, the third flagpole has displayed the flags of many nations, including Brazil, China, Ethiopia, Italy, Mexico, and Turkey. It has displayed the rainbow LGBTQ pride flag, a flag commemorating the Battle of Bunker Hill, and a flag honoring Malcolm X.

But when Harold Shurtleff, head of an organization called Camp Constitution, asked to fly a flag associated with the Christian faith, the city refused — claiming that displaying such a flag could be interpreted as “an endorsement by the city of a particular religion,” in violation of “separation of church and state or the [C]onstitution.”

Justice Breyer’s majority opinion concludes that the city erred. Relying on a bevy of cases establishing that the government typically cannot discriminate against a particular viewpoint, Breyer notes that “Boston concedes that it denied Shurtleff’s request solely because the Christian flag he asked to raise ‘promot[ed] a specific religion.’” Under the facts of this case, that’s a form of viewpoint discrimination and it’s not allowed.

While it’s notable that Justices Neil Gorsuch and Brett Kavanaugh each wrote separate opinions indicating that they are eager to let government get cozy with religion, and they have two opportunities to do so this term, this case is a straightforward decision that follows current law — in short, nothing remarkable.”

“The general rule in free speech cases is that the government may not discriminate against any particular viewpoint. Boston could not, for example, have a rule that Democrats are allowed to gather in the city hall plaza but not Republicans. Or that people who support restrictive immigration policies may do so, but not people who oppose them.

But there’s an exception to this general rule when the government speaks in its own voice. That is, the government is allowed to express its own opinion on a subject without also providing a forum for dissenting voices. If a public school principal tells her students to “say no to drugs,” she’s not required to give equal time to the grungy guy in the junior class who sells weed out of his 1997 Subaru Legacy.

The primary question in Shurtleff is whether, when Boston’s city government permitted a wide range of private groups — but not Camp Constitution — to display a flag of their choice outside of city hall, these flags represented the city’s speech or the private groups’ speech. Again, if the flags were a form of government speech, then Boston is allowed to exclude viewpoints it does not share.

But the Court concluded that the city did not use the third flagpole to express its own views, and that it effectively created “a forum for the expression of private speakers’ views.” As Breyer notes, Boston does not appear to have made any effort whatsoever to control which flags are displayed from this flagpole until it denied Shurtleff’s request to fly a Christian flag.”

Europe Escalates the Threat to Online Free Speech

“It’s easy to overstate, but attitudes towards freedom of action differ in the United States and the European Union. Americans tend to believe that people have a right to make their own decisions and are better trusted to do so than coercive governments; Europeans place more faith in the state, allowing room for personal choice only after officialdom installs guardrails and files away sharp edges. Yes, that exaggerates the case and there are plenty of dissenters under both systems, but it captures the treatment of speech and online conduct in the EU’s new Digital Services Act.

“Today’s agreement on the Digital Services Act is historic, both in terms of speed and of substance,” European Commission President Ursula von der Leyen commented on April 23. “The DSA will upgrade the ground-rules for all online services in the EU. It will ensure that the online environment remains a safe space, safeguarding freedom of expression and opportunities for digital businesses. It gives practical effect to the principle that what is illegal offline, should be illegal online. The greater the size, the greater the responsibilities of online platforms.”

There’s a lot in the proposed law, as you would expect of wide-ranging legislation paired with a companion bill addressing digital markets. The overall tone is of micromanagement of online spaces with dire consequences for platforms that fail to protect users from “illegal and harmful content” as defined by the government. Those who violate the rules by, for example, repeatedly failing to scrub forbidden material in timely fashion, face massive fines or expulsion from the EU market. Of course, no matter official assurances, speech hemmed in by red tape and subject to official oversight in monitored spaces isn’t especially “free” at all”

“The alarmists were right all along”: A Moscow journalist on Putin and the new Russian reality

“For a long while, Russia has “flooded the zone” and bombarded the population with so many contradictory accounts of reality that they weren’t sure what to believe, or they were too cynical to believe anything. But now it’s full Orwellian control of reality, and that’s a much heavier lift because it’s not about undermining consensus, which is easy; it’s about enforcing one.”

“I have to be honest, there were a handful of people here who have been warning about this for a long time, who were telling people like me that this was going to be a fascist dictatorship one day, and we’ve been dismissing these people. We were like, “Come on, Putin is a cynic, he’s evil in so many ways, but at least he’s a rational guy. All he wants to do is get himself insanely rich. He’s not going to do anything really drastic.”
But we were all fucking wrong. The alarmists were right all along, and almost every one of them is either dead or in jail or exiled.”

“we’re in uncharted waters. All these major foreign media outlets, like the New York Times and the BBC, are fleeing Moscow. That’s never happened. The New York Times has had a bureau in Moscow throughout the entire 20th century, including three revolutions and two world wars and the entire Cold War. But now Moscow isn’t safe for the New York Times. I really don’t have the words to describe how unpredictable this situation is.”

The Texas Social Media Law Is Blatantly Unconstitutional

“Texas Gov. Greg Abbott, who..signed a bill that aims to restrict social media platforms’ editorial discretion, says the new law “protects Texans from wrongful censorship” and thereby upholds their “first amendment rights.” The law, H.B. 20, is scheduled to take effect on December 2, but that probably will not happen, because it is blatantly unconstitutional and inconsistent with federal law.

Abbott, a former Texas Supreme Court justice who served as his state’s attorney general from 2002 to 2015, presumably knows that. But whether he is sincerely mistaken or cynically catering to his party’s base, H.B. 20 reflects widespread confusion among conservatives about what the First Amendment requires and allows.”

“the First Amendment applies to the government and imposes no constraints on private parties.

To the contrary, the First Amendment guarantees a private publisher’s right to exercise editorial discretion. The Supreme Court emphasized that point in a 1974 case involving a political candidate’s demand that The Miami Herald publish his responses to editorials that criticized him.

The constitutional protection against compelled publication does not disappear when we move from print to the internet, or from a news outlet to a website that invites users to post their own opinions. As Justice Brett Kavanaugh noted when he was a judge on the U.S. Court of Appeals for the D.C. Circuit, “the Government may not…tell Twitter or YouTube what videos to post” or “tell Facebook or Google what content to favor.”

Yet that is what H.B. 20 purports to do. The law says “social media platforms” with more than 50 million active monthly users in the U.S. may not “censor” content based on the “viewpoint” it expresses. That edict covers any effort to “block, ban, remove, deplatform, demonetize, de-boost, restrict, deny equal access or visibility to, or otherwise discriminate against expression.”

H.B. 20 makes a few exceptions, including “expression that directly incites criminal activity” and “specific threats of violence” that target people based on their membership in certain protected categories. But otherwise the rule’s reach is vast: As two trade organizations note in a federal lawsuit they filed last week, H.B. 20 “would unconstitutionally require platforms like YouTube and Facebook to disseminate, for example, pro-Nazi speech, terrorist propaganda, foreign government disinformation, and medical misinformation.””

Kicking people off social media isn’t about free speech

“We know deplatforming works to combat online extremism because researchers have studied what happens when extremist communities get routed from their “homes” on the internet.

Radical extremists across the political spectrum use social media to spread their messaging, so deplatforming those extremists makes it harder for them to recruit. Deplatfoming also decreases their influence; a 2016 study of ISIS deplatforming found, for example, that ISIS “influencers” lost followers and clout as they were forced to bounce around from platform to platform. And when was the last time you heard the name Milo Yiannopoulos? After the infamous right-wing instigator was banned from Twitter and his other social media homes in 2016, his influence and notoriety plummeted. Right-wing conspiracy theorist Alex Jones met a similar fate when he and his media network Infowars were deplatformed across social media in 2018.

The more obscure and hard to access an extremist’s social media hub is, the less likely mainstream internet users are to stumble across the group and be drawn into its rhetoric. That’s because major platforms like Facebook and Twitter generally act as gateways for casual users; from there, they move into the smaller, more niche platforms where extremists might congregate. If extremists are banned from those major platforms, the vast majority of would-be recruits won’t find their way to those smaller niche platforms. ”

“Deplatforming disrupts extremists’ ability to communicate with one another, and in some cases creates a barrier to continued participation in the group. A 2018 study tracking a deplatformed British extremist group found that not only did the group’s engagement decrease after it was deplatformed, but so did the amount of content it published online.

“When internet communities send a message of zero tolerance toward white supremacists and other extremists, other users also grow less tolerant and less likely to indulge extremist behavior and messaging. For example, after Reddit banned several notorious subreddits in 2015, leaving many toxic users no place to gather, a 2017 study of the remaining communities on the site found that hate speech decreased across Reddit.”

“As for the extremists, the opposite effect often takes place. Extremist groups have typically had to sand off their more extreme edges to be welcomed on mainstream platforms. So when that still isn’t enough and they get booted off a platform like Twitter or Facebook, wherever they go next tends to be a much laxer, less restrictive, and, well, extreme internet location. That often changes the nature of the group, making its rhetoric even more extreme.”

“One of the most frequent arguments against deplatforming is that it’s a violation of free speech. This outcry is common whenever large communities are targeted based on the content of their tweets, like when Twitter finally did start banning Nazis by the thousands. The bottom line is that social media purges are not subject to the First Amendment rule that protects Americans’ right to free speech.”

““Some argue that certain websites have gotten so large that they’ve become the de facto ‘public square,’” he said, “and thus should be held to the First Amendment’s speech-protective standards.”

In an actual public square, First Amendment rights would probably apply. But no matter how much social media may resemble that kind of real space, the platforms and the corporations that own them are — at least for now — considered private businesses rather than public spaces. And as Geronimo pointed out, “A private property owner isn’t required to host any particular speech, whether that’s in my living room, at a private business, or on a private website.””

“courts have consistently rejected free speech arguments in favor of protecting the rights of social media companies to police their sites the way they want to.”

National Guardsman Contradicts Trump Administration’s Account of Use of Force Against Protesters

“A National Guard officer will testify Tuesday at a congressional hearing that the June 1 clearing of protesters outside the White House was “an unnecessary escalation of the use of force” and “deeply disturbing to me, and to fellow National Guardsmen.”

“From my observation, those demonstrators—our fellow American citizens—were engaged in the peaceful expression of their First Amendment rights,” Adam DeMarco, a major in the D.C. National Guard, will tell the House Natural Resources Committee, according to his prepared remarks. “Yet they were subjected to an unprovoked escalation and excessive use of force.”

DeMarco’s testimony directly contradicts several of the Trump administration’s shifting explanations for what happened on June 1, when law enforcement violently dispersed a crowd of protesters in Lafayette Square, across the street from the White House. After police cleared the crowds, President Donald Trump conducted a photo shoot of himself holding a Bible outside St. John’s Church.”

“DeMarco testifies that around 6 p.m., Attorney General William Barr and Gen. Mark Milley, the chairman of the Joint Chiefs of Staff, arrived.

“As the senior National Guard officer on the scene at the time, I gave General Milley a quick briefing on our mission and the current situation,” DeMarco writes. “General Milley told me to ensure that National Guard personnel remained calm, adding that we were there to respect the demonstrators’ First Amendment rights.” (Milley has since apologized for appearing in Lafayette Square. “I should not have been there,” he said. “My presence in that moment, and in that environment, created the perception of the military involved in domestic politics.”)

At around 6:20 p.m., DeMarco continues, verbal warnings were given to the crowd to leave. But from where he was standing, about 20 yards away from the line of protesters, the warnings “were barely audible and I saw no indication that the demonstrators were cognizant of the warnings to disperse.”

Law enforcement rushed the crowd at around 6:30 p.m. Videos showed law enforcement assaulting an Australian TV crew. Media and other observers also reported being tear gassed.

The Trump administration says that protesters were throwing items at law enforcement, which DeMarco testifies he did not see. Park Police also emphatically denied they fired tear gas, claiming that officers instead fired smoke canisters and pepper balls, the latter of which are also a chemical irritant. But DeMarco says that tear gas was indeed used.”

‘What I saw was just absolutely wrong’: National Guardsmen struggle with their role in controlling protests

“POLITICO spoke to 10 National Guardsmen who have taken part in the protest response across the country since the killing of George Floyd while in police custody. Many Guardsmen said they felt uncomfortable with the way they were used to handle the unrest because demonstrators lumped them in with the police. They felt that while they swore an oath to uphold the Constitution, their presence at times intimidated Americans from expressing their opinions and even escalated the tension.

And in the case of Guardsmen involved in the Lafayette incident, some felt used.

“As a military officer, what I saw was more or less really f—ed up,” said one D.C. Guardsman who was deployed to Lafayette Square last Monday and who, like some others, spoke on condition of anonymity to speak freely. The official line from the White House that the protesters had turned violent, he said, is false.”

““I’m here to support and defend the Constitution of the United States and what I just saw goes against my oath and to see everyone try to cover up what really happened,” the Guardsman continued. “What I saw was just absolutely wrong.””

“One of the Guardsmen at the scene said the White House isn’t being truthful.

“I’ve been tear gassed before. I was there the night before when we got tear gassed, there was tear gas there” on Monday evening, he said. He added that he and some of his soldiers felt the effects of the tear gas from their colleagues because they didn’t have masks on.”

“The U.S. Park Police has acknowledged firing pepper balls into the crowd, which is also a chemical irritant.”

“The officer said he even told Gen. Mark Milley, the chairman of the Joint Chiefs of Staff, just before the Park Police moved in that the protests had been peaceful that day, a sentiment that was shared by three other Guardsmen who were there.”

” As of Monday, 42,700 National Guardsmen were deployed across 34 states and D.C. to deal with protests. At the height of the response last week, 1,200 D.C. National Guardsmen and another 3,900 from 11 states were patrolling the nation’s capital. Defense Secretary Mark Esper gave the order for the out-of-state Guardsmen to begin leaving on Friday; all are expected to return home by Wednesday.”

“Torrie Osterholm, the D.C. National Guard’s director of psychological health, said in an interview that many Guardsmen have reached out to her in the past week to express the pain and confusion they struggled with during and after the mission, both for what they witnessed and how the protesters reacted.

One Guardsman told her, “‘I never thought I’d get a bottle thrown at me and be told I should die and I should kill myself,’” Osterholm said. “There’s not enough Kevlar to protect you from those kinds of statements spoken in your own language.”

Walker, the D.C. Guard commander, acknowledged the challenges Guardsmen faced in a Sunday briefing with reporters.

“I have some Guardsmen whose family members came out and criticized them. ‘What are you doing out here, aren’t you black?’” Walker said. “Of course, we’re all hurting. The nation is hurting.””