Free Speech vs. Disinformation Comes to a Head in a U.S. Court
The outcome of a case in federal court could help decide whether the First Amendment is a barrier to virtually any government efforts to stifle disinformation
In July 2021, as Covid-19 cases began to surge again, the surgeon general warned that misinformation had led to “avoidable illnesses and death” and urged the nation’s social media giants to do more to fight the sources of it.
“We’re asking them to operate with greater transparency and accountability,” the official, Dr. Vivek Murthy, said at the White House.
Facebook’s vice president of global affairs, Nick Clegg, responded days later, sounding aggrieved. “It’s not great to be accused of killing people,” Mr. Clegg testily wrote in a private text message to Dr. Murthy.
The platform nonetheless announced a series of new policies and took down 17 accounts linked to the “Disinformation Dozen,” a disparate group of people who shared an estimated 65 percent of all anti-vaccination content online.
That exchange — one of dozens between officials and executives at Facebook, Google, Twitter and other social media companies that have spilled into public — is at the heart of a partisan legal battle that could disrupt the Biden administration’s already struggling efforts to combat disinformation.
The attorneys general of Missouri and Louisiana, both Republicans, have sued the White House and dozens of officials like Dr. Anthony S. Fauci, the nation’s top infectious-disease expert, accusing them of forcing the platforms to stifle the voices of its political critics in violation of the constitutional guarantee of free speech.
The outcome could help decide whether the First Amendment has become, for better or worse, a barrier to virtually any government efforts to stifle a problem that, in the case of a pandemic, threatens public health and, in the case of the integrity of elections, even democracy itself.
Government officials have long urged social media companies to fight illegal or harmful content online, especially when it comes to terrorism or other criminal activity, like child sexual abuse or human trafficking.
The attorneys general, though, accuse the Biden administration of taking the effort too far. Their claims reflect a narrative that has taken root among conservatives that the nation’s social media companies have joined with government officials to discriminate against them, despite evidence showing the contrary — in Twitter’s case, for example, from its own study in 2021 of how political accounts were promoted.
“When, in the public forum, there is speech they disagree with and does not align with their political narratives,” Andrew Bailey, Missouri’s new attorney general, said in an interview, referring to administration officials, “they then collude with and coerce Big Tech’s social media to take that speech down.”
The case, filed last year in U.S. District Court in Louisiana, has already succeeded in forcing the depositions of administration officials and the disclosure of scores of behind-the-scenes interactions with company executives. The administration’s efforts, the plaintiffs say, amounted to “open and explicit censorship programs.”
Yet the growing trail of internal communications suggests a more convoluted and tortured struggle between government officials frustrated by the spread of dangerous falsehoods and company officials who resented and often resisted government entreaties. When Mr. Clegg responded to Dr. Murthy about Facebook’s efforts, he sounded defensive and also frustrated.
“I imagine you and your team are feeling a little aggrieved — as is the FB team,” he wrote after the company released a report challenging the administration’s criticisms.
Paul M. Barrett, deputy director of the Center for Business and Human Rights at New York University’s Stern School of Business, who has studied the companies’ content moderation policies, said there was “no systematic evidence any place of a broad methodical plot” between the government and the platforms to censor.
On the contrary, social media platforms often appear reluctant to block political content, especially from Republicans, even when it appears to violate their own policies of abusiveness.
“It’s not that they’re going after conservatives,” Mr. Barrett said. “They’re fearing conservative backlash.”
A White House spokeswoman, Robyn M. Patterson, said in a written response that the administration remained focused on ensuring that Americans received “fact-based information” about Covid-19 and reiterated President Biden’s call for Congress to reform Section 230 of the Communications Decency Act, a law that broadly shields internet companies from liability for what users post on their sites.
“We have also never shied away from the view that social media platforms also have a role to play by enforcing their own policies to address misinformation and disinformation,” she wrote.
Big Tech has now become a favorite Republican target of attack, especially after Facebook and Twitter closed numerous accounts linked to the violence on Capitol Hill on Jan. 6, 2021, including former President Donald J. Trump’s. (The two services have reactivated Mr. Trump’s accounts in recent months.)
Florida and Texas have since enacted laws that would bar platforms from removing content based on political points of view. Their leaders have portrayed themselves as defenders of free speech, even as they have moved in other cases to restrict public discussion in schools, for example, of critical race theory and L.G.B.T.Q. issues.
The new Republican majority in the House has also formed a select subcommittee to investigate what its chairman, Representative Jim Jordan of Ohio, said recently were routine government violations of the First Amendment’s protections of assembly, religion and speech.
Elon Musk, the new owner of Twitter, has sought to make a similar case with the release of internal messages detailing the debates that executives had before he took over last year.
The messages, called the “Twitter Files,” have offered a selective and partly redacted view of the company’s interaction with government and law enforcement officials to block or restrict prominent accounts. They included revelations about the internal debate at Twitter over blocking links to a New York Post article about Hunter Biden, the president’s son, in 2020, during the previous presidential administration.
In a tweet, Mr. Musk said he had purchased “both a social media company and a crime scene.”
The “Twitter Files” have a political and, perhaps for Mr. Musk, a commercial agenda. The lawsuit against the Biden administration unfolding in a small town in northern Louisiana could, if successful, have far greater legal consequences.
The case is being heard by Terry A. Doughty, the chief U.S. district judge in the Western District of Louisiana. The court, according to a report late last year by Bloomberg Law, has become a favored venue for conservative attorneys general challenging the Biden administration.
Judge Doughty, appointed by Mr. Trump in 2017, has previously blocked the Biden administration’s national vaccination mandate for health care workers and overturned its ban on new federal leases for oil and gas drilling. In this case, he has granted the plaintiffs’ request for extensive discovery even before considering their request for a preliminary injunction.
The lawsuit aims at only the government, not the technology companies themselves. It names dozens of officials in 11 agencies, including the Department of Health and Human Services, the State Department, the F.B.I. and the Census Bureau.
Among those deposed was Dr. Fauci, who served for 38 years as the director of the National Institute of Allergy and Infectious Diseases, part of the National Institutes of Health. In a full day of questioning in November, he repeatedly said he was not involved in any discussions to censor content online.
“I do not get involved in any way with social media,” he said. “I don’t have an account. I don’t tweet, I don’t Facebook, and I don’t pay attention to that.”
In addition to the States of Missouri and Louisiana, the plaintiffs include two prominent epidemiologists who questioned of the government’s handling of the pandemic, Dr. Jayanta Bhattacharya and Martin Kulldorff; Dr. Aaron Kheriaty, a psychiatry professor dismissed by the University of California, Irvine, for refusing to have a Covid vaccination; Jill Hines, a director of Health Freedom Louisiana, an organization that has been accused of disinformation; and Jim Hoft, the founder of Gateway Pundit, a right-wing news site that claims in its promotions that “for 15 years, we’ve been fighting Big Tech and Leftists who want to shut us down.”
Jenin Younes, a lawyer with the New Civil Liberties Alliance, an organization representing the individual plaintiffs, said the government had sought to sidestep free-speech rights by forcing private companies to take action on discourse that is otherwise constitutionally protected.
“It can’t use third parties to do what it can’t do,” she said in an interview in the organization’s Washington office.
There is no question the Biden administration has used the bully pulpit on any number of issues, including urging Americans to get vaccinated and calling on the platforms to restrict accounts that sought to dissuade them.
The legal challenge for the plaintiffs is to show that the government used its legal or regulatory power to punish the companies when they did not comply, which they often did not.
“No, this isn’t feasible/we don’t do this,” one Twitter executive wrote, according to one of the Twitter Files, after Representative Adam Schiff, the California Democrat who led the House’s Permanent Select Committee on Intelligence, urged the company to remove accounts posting information about committee staff members.
As evidence of pressure, the lawsuit cites instances when administration officials publicly suggested that the companies could face greater regulation. For example, they pointed to warnings that the government could revise the liability shield provided under Section 230.
The White House administration could not repeal the law on its own, however, and Congress has shown little appetite for revisiting the issue, despite calls by Mr. Biden and others for greater accountability of social media companies.
Many of the examples cited in the lawsuit also involved official actions taken during the Trump administration, including efforts to fight disinformation ahead of the 2020 presidential election and by Mr. Biden’s allies at a time when they did not hold power.
Mr. Bailey, the Missouri attorney general, said the social media platforms had become “open public forums” where virtually any debate should be able to thrive.
“We need more speech,” he said. “We need free and open speech in those public forums,” he said. “When you’ve got the government targeting specific political speech, to take it off that forum, that becomes the problem.”
A large podcast study found that Mr. Bannon’s “War Room” had more falsehoods and unsubstantiated claims than other political talk shows.
When Stephen K. Bannon, the White House strategist turned podcaster, was explaining the latest Covid-19 developments in 2021, he passed the microphone to a special guest: Clay Clark, an evangelist and anti-vaccine activist.
For nearly 10 minutes, Mr. Clark rattled off one false and misleading statement after another. Covid is “100 percent treatable” with hydroxychloroquine and other drugs. (No.) Covid vaccines are filled with fetal tissue. (False.) Concentration camps are coming. (Nope.) Bill Gates owns a demonic patent for a cryptocurrency that is injected into your body. (Where to begin?)
Mr. Bannon has spent the past few years parlaying his stint as the chief strategist for former President Donald J. Trump into a prominent role as a right-wing personality. His hourlong “War Room” podcast episodes are released at least twice daily, even as Mr. Bannon faces various legal challenges, including a guilty verdict last year for contempt of Congress and accusations from Manhattan prosecutors that he defrauded conservative donors.
In a study released on Thursday by the Brookings Institution, Mr. Bannon’s show was crowned the top peddler of false, misleading and unsubstantiated statements among political podcasts.
Researchers at Brookings downloaded and transcribed 36,603 podcast episodes from 79 political talk shows that had been released before Jan. 22, 2022. When researchers compared the shows’ transcripts against a list of keywords and common falsehoods identified by fact checkers, they found that nearly 20 percent of Mr. Bannon’s “War Room” episodes contained a false, misleading or unsubstantiated statement, more than shows by other conservatives like Glenn Beck and Charlie Kirk.
Overall, about 70 percent of the podcasts reviewed had shared at least one false or misleading claim, the researchers found. Conservative podcasters were 11 times as likely as liberal podcasters to share a claim that fact checkers could refute.
Mr. Kirk, a conservative activist and the founder of Turning Points USA, ranked second, with 17 percent of his episodes containing an unsubstantiated or false claim. “The Rush Limbaugh Show” (which ended when Mr. Limbaugh died in 2021) and “The Clay Travis and Buck Sexton Show” shared third place, while “The Michael Savage Show” ranked fourth.
Valerie Wirtschafter, a senior data analyst at Brookings who led the research, said some falsehoods and errors were expected to slip through on talk shows, where conversations were typically recorded live. “But what does stand out, particularly for a show like Bannon’s ‘War Room’ and a few others, is just how frequently this type of content appears,” she said.
Mr. Bannon said in an interview that the Brookings report was a “badge of honor,” adding that “War Room” was a leader in vaccine skepticism, election fraud claims and other topics commonly flagged as misinformation by fact checkers.
“What they call disinformation or misinformation we consider the truth,” he said. “And time is proving us out.”
The findings underscore the vital role that Apple, Google and a constellation of podcast apps play in connecting disinformation peddlers to their audiences. Researchers sourced shows from Apple Podcast’s list of the 100 most popular political talk shows and added several more that Apple’s algorithm recommended. Joe Rogan, who hosts “The Joe Rogan Experience,” has also been criticized for sharing misinformation about Covid-19 and vaccines, but his show was not included in the analysis because it is distributed only by Spotify.
Big Tech companies have taken a largely hands-off approach to podcast content — and avoiding the kind of scrutiny that has dogged social networks for years. The companies say they have little responsibility for podcast content because they are effectively search engines connecting listeners to shows but never hosting content.
The companies have policies that ban hateful language or content that might incite violence, but researchers said those policies were vague and poorly enforced, allowing false content to spread.
Apple’s and Google’s software connects listeners with podcasts using an algorithm that surfaces recommended shows. Ivy Choi, a spokeswoman for Google, said the company did not recommend shows through its algorithm if they contained “harmful misinformation,” including Mr. Bannon’s “War Room.” A spokesman for Apple declined to comment.
Mr. Bannon was a prominent voice in the Stop the Steal movement, a coalition of election deniers and Trump supporters who pushed falsehoods and conspiracy theories about the 2020 presidential election in a bid to overturn the results.
In one episode from 2020, Mr. Bannon ticked off a long list of conspiracy theories about election fraud.
Mr. Bannon also presaged the attack on the Capitol on Jan. 6, 2021, saying on his podcast: “All hell is going to break loose tomorrow.”
When “War Room” touched on conservative lightning rods like abortion, the show sometimes drifted into conspiracy theories and echoed QAnon, the online movement claiming that “global elites” engage in child sex trafficking and other crimes.
Liz Yore, a lawyer and podcaster who has shared conspiracy theories about the pandemic, said the global elites supported abortion so they could research extending their own lives using fetal tissue.
Liz Yore on War Room;
“They have been using these aborted babies to further their transhumanism agenda.
This is Dr. Frankenstein on steroids.
And it’s our government and — interestingly, the government is paying for it.
And it’s the same people who are behind the vaccine, the virus, the Tony Faucis, the Francis Collins, N.I.H., N.A.I.D.
These are the people that are funding the ghoulish - let’s make no - ghoulish grafting the skulls onto baby mice.”
