Supreme Court on 6-3 Vote Rejects Social Media Government “Jawboning” Claim on Standing Grounds, But Strongly Suggests Claims of Jawboning were False

cheap speech, social media and social protests, Supreme Court

You can find the majority opinion in Murthy v. Missouri of Justice Barrett, along with the dissent of Justice Alito (joined by Justices Gorsuch and Thomas) at this link.

The claim was that government agencies pressured or coerced social media platforms including Facebook and Twitter to remove content (related to the election, Covid, etc.). This what the term “jawboning” refers to.

The Court did not opine on what would have to be proven in a jawboning case involving social media companies, because it held that none of the plaintiffs had standing: they did not show enough of a connection between the government‘s actions and plaintiffs’ injuries. As the majority opinion states: “the platforms moderated similar content long before any of the Government defendants engaged in the challenged conduct. In fact, the platforms, acting independently, had strengthened their pre-existing content moderation policies before the Government defendants got involved.”

Given that the majority said it would not reach the merits of the jawboning question, it’s inclusion of footnote 4, casting aspersions on the ridiculous factfinding of the district court, was notable as a slam. This is arguably the most important part of the opinion:

The Fifth Circuit relied on the District Court’s factual findings, many of which unfortunately appear to be clearly erroneous. The District Court found that the defendants and the platforms had an “efficient report-and-censor relationship.” Missouri v. Biden, 680 F. Supp. 3d 630, 715 (WD La. 2023). But much of its evidence is inapposite. For instance, the court says that Twitter set up a “streamlined process for censorship requests” after the White House “bombarded” it with such requests. Ibid., n. 662 (internal quotation marks omitted). The record it cites says nothing about “censorship requests.” See App. 639–642. Rather, in response to a White House official asking Twitter to remove an impersonation account of President Biden’s granddaughter, Twitter told the official about a portal that he could use to flag similar issues. Ibid. This has nothing to do with COVID–19 misinformation. The court also found that “[a] drastic increase in censorship . . . directly coincided with Defendants’ public calls for censorship and private demands for censorship.” 680 F. Supp. 3d, at 715. As to the “calls for censorship,” the court’s
proof included statements from Members of Congress, who are not parties to this suit. Ibid., and n. 658. Some of the evidence of the “increase in censorship” reveals that Facebook worked with the CDC to update its list of removable false claims, but these examples do not suggest that the agency “demand[ed]” that it do so. Ibid. Finally, the court, echoing the plaintiffs’ proposed statement of facts, erroneously stated that Facebook agreed to censor content that did not violate its policies. Id., at 714, n. 655. Instead, on several occasions, Facebook explained that certain content did not qualify for removal under its policies but did qualify for
other forms of moderation.

Justice Alito, in contrast, found enough evidence of jawboning to find standing (and then a likely violation of the law by the government). He relied in part on a report from Jim Jordan’s “weaponization of government” committee in the House, something that itself is quite unreliable.

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“Barnes, Deal lead bipartisan initiative to fight election fraud lies in Georgia”

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AJC:

Some of Georgia’s most prominent bipartisan leaders are uniting behind an effort to bolster confidence in the state’s election system after years of damage from false claims and discredited conspiracy theories about widespread voting fraud in 2020.

The Democracy Defense Project launched its state-based program Tuesday helmed by two Democrats — former Gov. Roy Barnes and ex-Atlanta Mayor Shirley Franklin — and two Republicans — former Gov. Nathan Deal and ex-U.S. Sen. Saxby Chambliss.

The initiative is part of a nationwide effort to strengthen trust in election systems in politically competitive states. Organizers plan a media campaign in Georgia and other battlegrounds to “raise awareness of efforts to subvert elections across the country and help move us beyond polarizing rhetoric.”…

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“What Are the Usual Burdens of Voting?”

voting

Jim Fischer has posted this draft on SSRN (Georgia State U. L. Rev.) Here is the abstract:

When the Court in Crawford v. Marion County Election Board approved presentment of a government-issued photo identification asa requirement to vote, Justice Stevens compared the requirement to what he characterized as “the usual burdens of voting.” SinceCrawford was decided, the concept of “the usual burdens of voting”has been invoked numerous times as lawsuits have been brought challenging state practices that are claimed to unduly burden the ability of voters to vote.
In theory, “the usual burdens of voting” serve as a benchmark against which state conditions imposed on the ability to vote can be measured to determine if the right to vote has been infringed. Yet, despite numerous uses of the phrase, courts have generally left the phrase undefined. In essence, a benchmark exists, but the content, design, and dimensions of that benchmark are amorphous.
This Article examines the development of the “usual burdens of voting” concept by Justice Stevens in Crawford and its use in subsequent decisions. This Article looks at the evolution of voting in the United States to provide some context as to how voting burdens should be understood. This Article concludes with some observations regarding the usefulness of the phrase as a means for determining whether a condition associated with voting, such as a prohibition on providing food or water to those waiting to vote, can be reliably evaluated using “the usual burdens of voting” concept.

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“I Study Disinformation. This Election Will Be Grim.”

cheap speech, election subversion risk

Renee DiResta NYT oped:

This brings us to the present, when another election looms. The 2024 rerun is already being viciously fought. Since 2020, the technological landscape has shifted. There are new social media platforms in the mix, such as Bluesky, Threads and Truth Social. Election integrity policies and enforcement priorities are in flux at some of the biggest platforms. What used to be Twitter is under new ownership and most of the team that focused on trust and safety was let go.

Fake audio generated by artificial intelligence has already been deployed in a European election, and A.I.-powered chatbots are posting on social-media platforms. Overseas players continue to run influence operations to interfere in American politics; in recent weeks, OpenAI has confirmed that Russia, China and others have begun to use generative text tools to improve the quality and quantity of their efforts.

Offline, trust in institutions, government, media and fellow citizens is at or near record lows and polarization continues to increase. Election officials are concerned about the safety of poll workers and election administrators — perhaps the most terrible illustration of the cost of lies on our politics.

As we enter the final stretch of the 2024 campaign, it will not be other countries that are likely to have the greatest impact. Rather, it will once again be the domestic rumor mill. The networks spreading misleading notions remain stronger than ever, while the networks of researchers and observers who worked to counter them are being dismantled….

osts, both financial and psychological, have mounted. Stanford is refocusing the work of the Observatory and has ended the Election Integrity Partnership’s rapid-response election observation work. Employees including me did not have their contracts renewed.

This is disappointing, though not entirely surprising. The investigations have led to threats and sustained harassment for researchers who find themselves the focus of congressional attention. Misleading media claims have put students in the position of facing retribution for an academic research project. Even technology companies no longer appear to be acting together to disrupt election influence operations by foreign countries on their platforms.

Republican members of the House Judiciary subcommittee reacted to the Stanford news by saying their “robust oversight” over the center had resulted in a “big win” for free speech. This is an alarming statement for government officials to make about a private research institution with First Amendment rights.

The work of studying election delegitimization and supporting election officials is more important than ever. It is crucial that we not only stand resolute but speak out forcefully against intimidation tactics intended to silence us and discredit academic research. We cannot allow fear to undermine our commitment to safeguarding the democratic process.

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“The Ballot Measures Aim to Reduce Partisanship. Can They Fix American Politics?”

alternative voting systems, political parties, primaries

Michael Wines for the NYT:

Americans of both parties routinely express deep concern about the state of the country’s democracy. This fall, many voters may have a chance to do something about it, by voting on state ballot measures related to the nuts and bolts of elections and governance.

Eight states, including Ohio and seven others largely in the West, appear all but certain to field ballot measures that would either overhaul redistricting or rewrite election rules to discourage hyper-partisanship and give voters a greater voice in choosing candidates.

Redistricting ballot measures are not uncommon, but since the advent of citizen-backed ballot initiatives in the early 1900s no other year has had more than three election-system initiatives, according to the online elections database Ballotpedia….

Closed primaries, the argument goes, rob independent voters — a growing segment of the electorate, and in some states now the largest one — of a voice in choosing general election candidates. Candidates in open primaries have an incentive to court not only independents but also voters of the opposing party, which, in theory at least, should steer them closer to the political center.

And gerrymandered maps make elections so lopsided that parties with little chance of winning often don’t bother to field general-election candidates. (Nationally, about four in 10 state legislative races have only one candidate.) In those cases, the general election winner only has to win over primary voters, not the broader electorate that turns out in November.

Advocates of ranked-choice elections say they not only give voters a greater say in choosing the ultimate winner of a political contest, but also reward candidates who try to win over a broad swath of the electorate.

It is no accident that electing more moderates would change the conditions that have made the G.O.P. a hothouse for far-right extremists, said Richard L. Hasen, an election-law expert and director of the Safeguarding Democracy Project at the University of California, Los Angeles, School of Law.

“So much of this has to do with the battle for the soul of the Republican Party,” he said.

Not everyone buys the logic. Academic research suggests that ending gerrymandering and adopting certain versions of ranked-choice voting can indeed dampen hyper-partisanship and promote cooperation. But the evidence favoring open primaries is more mixed….

However laudable, many experts and activists say that the proposed fixes are weak medicine to cure what ails American democracy.

“Everyone agrees that our political system is dysfunctional,” said Nate Persily, a leading expert on voting and democracy at Stanford Law School. “But this is not a particularly effective way to deal with our hair-on-fire moment. When insurrectionists are breaking down the Capitol doors, there’s only so much that changing primary election rules is going to do.”…

Ned Foley responds to Nate’s comments here.

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