Monthly Archives: March 2023

“Fiction vs Reality: My Texts with Michael Shellenberger”

Renee DiResta:

For several months earlier this year, I’d been chatting with Michael Shellenberger about the Twitter Files. He’d reached out to me in a Twitter DM on December 30th, telling me he wanted to better understand social media content moderation and transparency policy. Via phone, email, and text, we discussed topics ranging from state-sponsored disinformation campaigns, to the basics of content moderation (he was unfamiliar), to online speech. We talked about public trust on Sam Harris’ podcast. I treated him with respect, even in disagreement, regularly asking, “What do you think should be done?”

But then Shellenberger submitted testimony for a March 9 Congressional “Twitter files” hearing, and I learned we’d been having different conversations. He wrote about me extensively, mentioning me 45 times and characterizing me as a “government-funded censor” with hidden ties to the CIA. Things I’d written or said were decontextualized or applied to other topics entirely. Things I had not written or said were wrongly attributed to me or my organization. The full litany would take hours to refute and I’m not going to bother. But to briefly address the characterization: I’ve never worked at a platform or censored anything.

Details about Stanford Internet Observatory’s funding, and refutations to claims about our work in the Twitter Files are here and here; we received an NSF grant after our 2020 election and 2021 covid projects had ended and no government funding went into this work. My purported secret-agent double life was an undergraduate student fellowship at CIA, ending in 2004 — years prior to Twitter’s founding. I’ve had no affiliation since. It is additionally worth noting that Shellenberger believes that all content moderation — including labeling — is “censorship” unless the content is illegal; I disagree. I’ve long advocated against content and account takedowns in favor of the context – the counter-speech – of a label in the majority of relevant situations.

Had it just been the testimony, I would have ignored the smear. But in a second Congressional testimony, and then an appearance on Joe Rogan’s podcast, Shellenberger continues to mislead. He cited fabricated statistics and claims from a crank he recently met, and now promotes. The claims that come from this individual are not only false but absurd — i.e., that SIO somehow flagged and got Twitter to censor 22 million tweets during the 2020 election. Shellenberger’s tales get taller each time — by the time of his appearance on Rogan, the number had ballooned into hundreds of millions, and we had censored Shellenberger, his book, and Rogan himself. These are lies.

There is also innuendo — SUNY Stony Brook, where I went to college, he intones, has ties to the NSA; I don’t know if that is true, or how it is relevant, and I have no such ties. There are, once again, too many sloppy mistakes to address — ie, Shellenberger correctly notes that I did work for the Senate on Russia, then name-checks Adam Schiff, recently a Twitter files villain, who I have never done work for and who is not a Senator. Finally, Shellenberger has begun escalating into personal grievances: calling me a “snob”; speculating about whether I’m a good mom; saying he could tell that I “felt like [I] was an expert on climate”, that I thought I knew more than him despite his years of research (we never discussed climate; I don’t know much about it).

Smears like this, which throw dozens of little insinuations together, are often effective because it takes an order of magnitude more effort to refute bullshit than to put it out, and the audience often doesn’t see, or doesn’t trust, the rebuttal.

So in this post I’m publishing our full WhatsApp chat, and a wide-ranging January interview that I agreed to do with him (long version | abridged by him). It focused on content moderation and the Twitter Files; he pulled things from it in his Congressional testimony, put some of it into novel contexts, but never released it. The messages and interviews provide a view into not only our interaction, but my actual opinions about moderation and free expression.

One of the strangest parts of this situation is that despite being in regular, good-faith contact for two months, Shellenberger — who identifies as a journalist — never asked me about these ‘undisclosed CIA ties’ or ‘millions of censored tweets’ or other accusations he presented as fact. Misrepresenting opponents, turning them into caricatures, claiming they hold opinions they don’t, and ascribing false actions to them is counter to having productive debate about important issues. It does, however, likely have a positive impact on Substack subscriptions….

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In Dominion Defamation Suit Against Fox News, Trial Court Grants Partial Summary Judgment on Falsity of Fox Statements About Election, Leaving Open Issues of Actual Malice, Corporate Responsibility, and Damages

This is quite a loss for Fox, depriving them of the chance to raise all kinds of legal and factual issues. See the 130-page opinion:

Through its extensive proof, Dominion has met its burden of showing there is no genuine issue of material fact as to falsity. Fox therefore had the burden to show an issue of material fact existed in turn. Fox failed to meet its burden. The evidence developed in this civil proceeding demonstrates that is CRYSTAL clear that none of the Statements relating to Dominion about the 2020 election are true.

Via Law & Crime.

Fox emails this statement: “This case is and always has been about the First Amendment protections of the media’s absolute right to cover the news. FOX will continue to fiercely advocate for the rights of free speech and a free press as we move into the next phase of these proceedings.” 

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“Social Media Influencer Douglass Mackey Convicted of Election Interference in 2016 Presidential Race”

DOJ Release:

Douglass Mackey, also known as “Ricky Vaughn,” was convicted today by a federal jury in Brooklyn of the charge of Conspiracy Against Rights stemming from his scheme to deprive individuals of their constitutional right to vote.  The verdict followed a one-week trial before United States District Judge Ann M. Donnelly.  When sentenced, Mackey faces a maximum of 10 years in prison.

Breon Peace, United States Attorney for the Eastern District of New York, and Michael J. Driscoll, Assistant Director-in-Charge, Federal Bureau of Investigation, New York Field Office (FBI), announced the verdict.

“Mackey has been found guilty by a jury of his peers of attempting to deprive individuals from exercising their sacred right to vote for the candidate of their choice in the 2016 Presidential Election,” stated United States Attorney Peace.  “Today’s verdict proves that the defendant’s fraudulent actions crossed a line into criminality and flatly rejects his cynical attempt to use the constitutional right of free speech as a shield for his scheme to subvert the ballot box and suppress the vote.”

In 2016, Mackey established an audience on Twitter with approximately 58,000 followers.  A February 2016 analysis by the MIT Media Lab ranked Mackey as the 107th most important influencer of the then-upcoming Presidential Election.

As proven at trial, between September 2016 and November 2016, Mackey conspired with other influential Twitter users and with members of private online groups to use social media platforms, including Twitter, to disseminate fraudulent messages that encouraged supporters of presidential candidate Hillary Clinton to “vote” via text message or social media which, in reality, was legally invalid.  For example, on November 1, 2016, in or around the same time that Mackey was sending tweets suggesting the importance of limiting “black turnout,” the defendant tweeted an image depicting an African American woman standing in front of an “African Americans for Hillary” sign. The ad stated: “Avoid the Line. Vote from Home,” “Text ‘Hillary’ to 59925,” and “Vote for Hillary and be a part of history.” The fine print at the bottom of the deceptive image stated: “Must be 18 or older to vote. One vote per person. Must be a legal citizen of the United States. Voting by text not available in Guam, Puerto Rico, Alaska or Hawaii. Paid for by Hillary For President 2016.”  The tweet included the typed hashtag “#ImWithHer,” a slogan frequently used by Hillary Clinton.  On or about and before Election Day 2016, at least 4,900 unique telephone numbers texted “Hillary” or some derivative to the 59925 text number, which had been used in multiple deceptive campaign images tweeted by Mackey and his co-conspirators.

Several hours after tweeting the first image, Mackey tweeted an image depicting a woman seated at a conference room typing a message on her cell phone.  This deceptive image was written in Spanish and mimicked a font used by the Clinton campaign in authentic ads.  The image also included a copy of the Clinton campaign’s logo and the “ImWithHer” hashtag. 

No doubt, any appeal would raise issues under the First Amendment as well as on questions whether the statute covers this conduct. I wrote about this case in my Cheap Speech book, and Eugene Volokh expressed skepticism in this Table Mag piece.

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Wisconsin: “Dan Knodl says he would consider impeaching Janet Protasiewicz if he is elected to the Senate”

Milwaukee Journal-Sentinel:

Republican state Senate candidate Dan Knodl says if his election gives Senate Republicans a two-thirds majority, he would “certainly consider” support launching impeachment proceedings against Wisconsin Supreme Court candidate Janet Protasiewicz.

Wisconsin Republicans are defending a two-thirds majority in the state Senate that they achieved in November but quickly lost after the retirement of longtime GOP state Sen. Alberta Darling of River Hills. If Knodl replaces Darling, Senate Republicans will have enough members to be able to remove state officials who are impeached by the state Assembly.

The Wisconsin Constitution allows lawmakers to remove state officials “for corrupt conduct in office, or for crimes and misdemeanors,” but Knodl said Sunday he would consider launching impeachment proceedings for criminal justice officials “who have failed” at their jobs.

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“Nonprofits, campaign finance and more blows to democracy”

Lucy Bernholz blogs, responding to my draft paper, Nonprofit Law as the Tool to Kill What Remains of Campaign Finance Law: Reluctant Lessons from Ellen Aprill:

In a nutshell, Professor Hasen uses Professor Aprill’s work to show the intellectual and legal history that will likely use religious freedom to deregulate political donations. How? Via the deregulation of political activity in churches and houses of worship. There’s much more to it (read the paper) but that gets us started. 

What does this mean for nonprofits? More politics. More money laundering. Less trust. 

What does it mean for democracy? More blurring of boundaries between nonprofit and commercial corporations. More anonymous money in politics. Less trust. More plutocratic control. 

It’s not a positive tale. But thanks to Professors Aprill and Hasen, we’ve been warned. So, what are we going to do about it?

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“Many Democracies Have Prosecuted Ex-Leaders. The Politics Can Be Tough.”


“It’s always a big deal when a former president or prime minister is indicted, but in most democracies, it is normal when they’re credibly accused of serious crimes,” said Steven Levitsky, a professor of government at Harvard who has written about dozens of countries’ transition to democracy. The United States, he said, has been an outlier in its reluctance to charge a former leader.

“Political systems have to handle it,” he added. “They have to. Because the alternative — saying some people are above the law — is much worse.”

Prosecutions can reflect that the rule of law is strong, that even the powerful are not above the courts and can be held to account. But they can also show that the rule of law is weak, that the legal system is easily weaponized against political enemies.

“Many people are going to immediately assume that it’s for political reasons, and it’s going to be very hard, if not impossible, to persuade them that it’s a legitimate, nonpolitical prosecution,” said John B. Bellinger III, an adjunct senior fellow at the Council on Foreign Relations in Washington and a top legal official during President George W. Bush’s administration.

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“Why This Indictment Can’t Stop Donald Trump From Being Elected President”


Former President Donald Trump was indicted by the Manhattan district attorney on Thursday for his role in paying alleged hush money to a porn star. The move raised a number of legal questions as Trump vies for the 2024 Republican presidential nomination; one of them being—do criminal charges disqualify Trump from being elected president?

The short answer is that even if Trump is convicted, the charges against him won’t disqualify him from the presidency, legal experts tell TIME.

“There is no constitutional bar on a felon running for office,” says Richard Hasen, an election law professor at UCLA Law School. “And given that the U.S. Constitution sets presidential qualifications, it is not clear that states could add to them, such as by barring felons from running for office.”

Under the constitution, all natural born citizens who are at least 35 years old and have been a resident of the U.S. for 14 years can run for president. There is no legal impediment to Trump continuing his presidential campaign while facing criminal charges—even if he were jailed, legal experts say….

And while Trump is the first former president to be charged with a crime, he’s far from the first presidential candidate to run despite criminal charges. At least two candidates with criminal convictions have even run for president in the past, albeit unsuccessfully. Hasen, of UCLA Law, noted that in 1920 a candidate named Eugene Debs ran for president while in a federal prison in Atlanta as the nominee of the Socialist Party. Debs was convicted of violating the Espionage Act over an anti-war speech, and won more than 3% of the vote nationally. Another convicted presidential candidate, Lyndon LaRouche, ran for president in every election between 1976 and 2004. LaRouche, a fringe candidate who embraced conspiracy theories, was convicted of tax and mail fraud in 1988 and ran his 1992 campaign from prison.

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CNN: “Donald Trump indicted by Manhattan grand jury on more than 30 counts related to business fraud”


Donald Trump faces more than 30 counts related to business fraud in an indictment from a Manhattan grand jury, according to two sources familiar with the case – the first time in American history that a current or former president has faced criminal charges.

Trump is expected to appear in court on Tuesday.

The indictment has been filed under seal and will be announced in the coming days. The charges are not publicly known at this time.

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Breaking: NYT Reports Grand Jury Votes to Indict Donald Trump for a Felony Related to “Hush Money” Payments; No Information Yet on Whether There is an Attempt to Bootstrap a Federal Campaign Finance Charge (Which May Not Work)

Breaking NYT:

A Manhattan grand jury voted to indict Donald J. Trump on Thursday for his role in paying hush money to a porn star, according to four people with knowledge of the matter, a historic development that will shake up the 2024 presidential race and forever mark him as the nation’s first former president to face criminal charges.

The felony indictment, filed under seal by the Manhattan district attorney’s office, will likely be announced in the coming days. By then, prosecutors working for the district attorney, Alvin L. Bragg, will have asked Mr. Trump to surrender and to face arraignment on charges that remain unknown for now.

Mr. Trump has for decades avoided criminal charges despite persistent scrutiny and repeated investigations, creating an aura of legal invincibility that the vote to indict now threatens to puncture.

His actions surrounding his 2020 electoral defeat are now the focus of a separate federal investigation, and a Georgia prosecutor is in the final stages of an investigation into Mr. Trump’s attempts to reverse the election results in that state.

But unlike the investigations that arose from his time in the White House, this case is built around a tawdry episode that predates Mr. Trump’s presidency. The reality star turned presidential candidate who shocked the political establishment by winning the White House now faces a reckoning for a hush money payment that buried a sex scandal in the final days of the 2016 campaign…

To turn a misdemeanor false records charge into a felony under NY law, the falsification must be in furtherance of “another crime.” I’ve expressed some skepticism about whether a federal campaign finance crime could be used in state court (and whether there is a campaign finance crime at all). But we’ll have to see the indictment to know.

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“Here’s how protected election system blueprints are making their way into far-right circles”

LA Times:

On the third day of the Conservative Political Action Conference earlier this month, two men delivered on experts’ biggest concerns about attempts to access election machines after the 2020 election.

Using copies of election software — improperly removed from multiple counties — that has been circulating among election deniers, they presented an unfounded narrative that they had discovered evidence of fraud and foreign interference. They also discussed their goal to secure jobs as election officers and build a team of computer experts to access elections systems in more than 60 counties in order to prove their theories.

“This is exactly the situation that I have warned about,” said election technology expert Kevin Skoglund, a senior technical advisor at the National Election Defense Coalition. “Having the software out there allows people to make wild claims about it. It creates disinformation that we have to watch out for and tamp down.”

Skoglund is among the election security experts concerned that bad actors are using the time between the 2020 and 2024 elections to study election systems and software in order to produce disinformation during the next presidential election, such as fake evidence of fraud or questionable results.

Described as an election integrity presentation, the event wasn’t on the official CPAC agenda or sanctioned by the organization, but took place in a guest room at a nearby hotel. Some CPAC sponsors hold their own sessions, which are planned and produced by them and not CPAC.

Only a small number of people attended the event in person. At least 2,800 people watched live online through a far-right broadcast, according to that show’s host. That broadcast included commentary from election deniers before and after the presentation.

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