court-sanctioned intimidation

on the preliminary injunction in the missouri v. biden case

I joined Ali Velshi and Roger McNamee to discuss the preliminary injunction prohibiting the Biden Administration from contacting social media platforms. Watch here.

Just before a good friend and her family were set to arrive at our house for some Fourth of July fun with our toddlers, I learned that a district court issued a sweeping preliminary injunction in the Missouri v. Biden case, prohibiting a number of administration officials and their agencies from having nearly any contact with social media companies. The case, which has been in the offing since May 2022, alleges that Biden Administration officials, in their efforts to cooperate with the social media platforms to stem the tide of disinformation, are somehow censoring Americans. 

I was livid. As I told both The Guardian and POLITICO, those in our country who benefit from lies have just notched another win in a streak that started with the campaign against DHS’s Disinformation Governance Board, of which, you will recall, I was Executive Director. 

As a result of my government service, I was also named—in my official capacity—a defendant in the Missouri v. Biden lawsuit. I was removed from the laundry list of officials ranging from Dr. Anthony Fauci to POTUS after I resigned from government. But the fact that I was included at all—on the basis of a disproven conspiracy theory that the Board, which was an internal best practices and coordination body, had anything to do with censoring Americans—belies the suit’s absurdity and lack of substance. Put simply: this is a politicized effort to eliminate scrutiny of disinformers ahead of the 2024 election. It is meant to intimidate researchers and government officials from doing critical work to protect democracy.

Let’s take a look at the injunction and the arguments it attempts and fails to make. 

(Important note: I’m not a lawyer. You can read a great legal analysis of the ruling by Leah Litman and Lawrence Tribe here. This analysis is from my perspective as a counter-disinformation practitioner who has insight into how the USG operates and has studied social media platforms’ content moderation policies.)

There’s no there there

The injunction operates on the widely-spread, but absolutely baseless assumption that any cooperation between the public and private sectors on disinformation amounts to government censorship. This is simply not true. Although we like to think of social media as a free speech free-for-all, when we post on privately-owned platforms, we are subject to their policies. They have plenty of them, ranging from stopping the spread of human trafficking and child sexual abuse material to policies prohibiting hate speech and disinformation. 

When government officials flag content to social media platforms, they’re flagging content that they believe violates a policy at the social media platform in question. This might be election disinformation, such as attempts to disenfranchise voters by lying about where polling places are or when they’re open, or, during the pandemic, false narratives about COVID that had an effect on public health.*

Let me state very plainly: if officials were demanding or coercing that certain content be removed, that would be really concerning. That’s not what they’re doing. They’re flagging violative content that the platforms may have missed—we know their detection and enforcement isn’t good!—and goes against the platforms’ own terms of service. From there, the platforms make a decision about what action to take on those flags. Furthermore, what we’ve seen recently is that even in areas where the government made social platforms aware of specific content, the platforms took action on that content infrequently, and only when the content violated the platforms’ terms of service. They regularly declined to act on government reports and flags, and when they did act, platforms often simply added context to the content in question, rather than outright remove it. 

This brings me to a critical point that everyone alleging a vast censorship conspiracy deliberately ignores, and something all of my scholarship and research has concluded: responding to disinformation is not about playing whack-a-troll or censoring. It’s about providing, surfacing, and teaching people how to find correct information. It’s about more speech, not less speech.

What about the profanity-laden tirades?

That said, there are a couple of emails that have surfaced in the case that raise my hackles a bit, in which the tone of White House officials with social media representatives got aggressive and unprofessional. Even in these cases, in my opinion (not a lawyer, not a lawyer, not a lawyer!), the coercion or censorship bar is not met. For instance, I decided to do a few minutes of fact-checking on one of the most aggressive quotes cited by the judge. The injunction (page 23) makes hay of one email from a White House official: 

"Things apparently became tense between the White House and Facebook after that, culminating in Flaherty’s July 15, 2021 email to Facebook, in which Flaherty stated: “Are you guys fucking serious? I want an answer on what happened here and I want it today.”

The court—and charlatans like Matt Taibbi—want you to believe this email has something to do with removing speech from Facebook. But if we follow the footnote (check out page 55), it shows the context of this email was related to a platform bug that temporarily removed the POTUS account from being recommended to users—in short, absolutely nothing to do with content moderation, censorship, disinformation, speech, or anything related to it. It. was. a. platform. bug!

The implications are scary 

As I’ve noted above, the implications for this injunction are frightening ahead of a pivotal election. There are two prohibitions in the document that especially worry me.

Government entities are prohibited from “notifying social-media companies to Be on The Lookout (“BOLO”) for postings containing protected free speech.” I cannot overstate how absurd this is. What the government might be doing in this case is sending a note to platforms to the tune of: “Hey, we’ve been seeing chatter on the dark web that groups might attempt to coordinate a campaign to mislead voters about where to cast their ballots. Be on the lookout for this type of content, which might violate your policies.” The Government would not be coercing, threatening, or even asking the platform in question to take a specific action. It would simply be an attempt to improve the platform’s situational awareness. 

Now, the judge in the case attempts to avoid criticism by carving out specific areas where the government can contact platforms, including criminal activity, national security matters, disenfranchisement or voter suppression, malicious cyber activity, or speech that is not protected by the First Amendment. The problem is—as I’ve noted over and over in my work since about 2018—these issues overlap, and they overlap frequently. It is very difficult to draw a line between protected speech and harmful disinformation.

As awareness of disinformation has grown and platforms became savvier, disinformers realized that capitalizing on protected speech concerns and using local voices as their megaphones allowed them a less visible vector through which they could spread their messages. Russian trolls recognized this; it’s why they hired unwitting American journalists to target voters during the 2020 election. This is precisely the type of operation that could thrive as civil servants hesitate to contact platforms under the injunction. In the 2020 case, the FBI initially tipped the platforms off about the shady site and its connections to Russia. Yes, there is clearly a national security concern here, but if the same operation were to crop up this election cycle, are beleaguered civil servants going to want to risk running afoul of this injunction to stop it? 

Mike Masnick of TechDirt sums this quandary up well:

It seems abundantly clear that nearly all of the conversations [referenced in the injunction] were about legitimate information sharing, but nearly all of it is interpreted by the plaintiffs and the judge to be nefarious censorship. As such, the risk for anyone engaged in activities on the “not prohibited” list is that this judge will interpret them to be on the prohibited list.

And that’s why government officials are now calling off important meetings with these companies where they were sharing actual useful information that they can no longer share. I’ve even heard some government officials say they’re even afraid to post to social media out of a fear that that would violate this injunction.

The injunction puts officials between a rock and a hard place, and that’s exactly the point. 

Finally, and perhaps most chillingly, the USG is also prohibited from:

“collaborating, coordinating, partnering, switchboarding, and/or jointly working with the Election Integrity Partnership, the Virality Project, the Stanford Internet Observatory, or any like project or group for the purpose of urging, encouraging, pressuring, or inducing in any manner removal, deletion, suppression, or reduction of content posted with social-media companies containing protected free speech.”

The fact that three specific research bodies—groups that have been targets of the campaign against those who stand up for truth—are called out in this ruling is setting them up for more harassment and more grief. It is essentially attempting to make them radioactive, hoping that funders and colleagues and media will be scared off, and that the researchers at their core will be either so inundated with onerous legal compliance they aren’t able to work, or get too exhausted to continue the cataloging and analyzing of disinformation that they’ve done for the past several election cycles. 

We can’t let that happen. One of the most frustrating things in my own experience was how utterly abandoned I was, and how little support I got from my employer and the disinformation community during my experience. Let’s be a bulwark against the flood of falsehoods these folks are experiencing and continue to support their work. 

In that same clause in the injunction, another few words stopped me dead: “any like project or group.” Essentially, the U.S. Government is being told it is not allowed to communicate with ANY disinformation researchers. This might be where many folks in the field throw in the towel, or where some bright young minds decide to do something less “risky” in their careers. None of this work should be risky. Researchers and government officials shouldn’t be under threat, both legal and physical, because conspiracy theorists are weaponizing lies for power and for profit. 

If we keep letting the liars win—as we did with the DHS Board, funding of the Global Disinformation Index, and now this injunction (which, in my opinion, the administration is not challenging vociferously enough)—we’re not just at risk of losing elections, we’re at risk of losing American democracy as we know it. I’m not giving up—and I’m going to keep supporting the people who are under the microscope, even if it means I remain under it myself.  Let’s keep pushing back, standing up, and speaking out on behalf of the truth.

*(As an aside: there’s a lot of nuance here, especially in rapidly changing situations like the pandemic, but ultimately, the decision about what content to prohibit lies with the platforms; if folks have problems with that, they should be pushing for more government-mandated transparency regarding their policy decisions.)

---

Hope you’ve enjoyed this Naptime Note. Share it to poke holes in the disinformation about disinformation. Thanks.