New from the Institute for Free Speech
Just in Time for Halloween: The Social Dilemma Frightens with the Fictional Monsters of Big Tech
By Tiffany Donnelly
The Netflix documentary, The Social Dilemma, is making waves…
The main takeaway is that tech companies are stealthily controlling us by using sneaky product designs and thought-implanting algorithms. We, the hapless victims of Big Bad Tech, are the product. The goal of social media companies, the film claims, is to profit from modifying our behavior.
This thesis is riddled with problems. For one, it overstates its case. Presenting information – regardless of how persuasive or deceptive the presentation may be – isn’t mind control.
Early in the film, former Google employee Tristan Harris says, “two billion people will have thoughts that they didn’t intend to have because a designer at Google said this is how notifications work on that screen that you wake up to in the morning.” Harris claims Google has a moral responsibility to solve this “problem.”
But having thoughts you don’t intend to have is the essence of being alive and conscious. Unless you are a Buddhist monk with decades of expert meditation practice, your thoughts are regularly formed in response to external stimuli. When I’m watching a light-hearted television show and that commercial with sad dogs and Sarah McLachlan’s “Angel” comes on, I’m not thinking about hungry, desperate, disease-ridden animals because I independently thought it would be a fun interlude. I’m thinking about them because I just saw them on TV. That doesn’t make the A.S.P.C.A. some type of Svengali.
Supreme Court
Wall Street Journal: Justice Ginsburg and the Value of Anonymity
By Daniel Suhr
Sen. Sheldon Whitehouse of Rhode Island showed up to Judge Amy Coney Barrett’s hearing with a red marker pen and made-for-TV charts. He portrayed her as the product of a right-wing conspiracy organized by the Federalist Society and other nonprofit groups, which he calls “dark money” organizations because they protect donors’ privacy.
Mr. Whitehouse didn’t mention that Justice Ruth Bader Ginsburg spoke at Federalist Society events, which host jurists and legal experts from all sides of the political spectrum-or that Ginsburg’s career as a women’s-rights lawyer was made possible by anonymous donors.
For people who challenge the powerful in the name of individual rights, anonymity and privacy are essential safeguards. As founding director of the American Civil Liberties Union’s Women’s Rights Project, Ginsburg took on high-profile, politically charged cases. Today her work is widely praised, but at the time it was a disruptive assault on the status quo…
The ACLU continues its fight for citizens’ privacy. I recently represented a conservative advocacy group that sued to stop a New Jersey law imposing “donor disclosure” mandates on nonprofit groups. The ACLU joined the challenge. An Obama-appointed judge recognized that today’s donors live “in a climate marked by the so-called cancel or call-out culture that has resulted in people losing employment, being ejected or driven out of restaurants while eating their meals; and where the Internet removes any geographic barriers to cyber harassment of others.”
Washington Post: The Daily 202: First Amendment plays an unexpected starring role in Amy Coney Barrett confirmation hearing
By James Hohmann and Mariana Alfaro
Sen. Ben Sasse (R-Neb.) accidentally stumped Amy Coney Barrett during her confirmation hearing on Wednesday afternoon when he asked President Trump’s Supreme Court nominee to “reflect a little bit on the glories of the First Amendment” by naming “the five freedoms” it enumerates.
“Speech, religion, press, assembly,” she answered, counting them off with her right hand. “I don’t know. What am I missing?”
“Redress or protest,” Sasse answered, referring to what the Bill of Rights describes as the right “to petition the Government for a redress of grievances.” …
Sasse lobbed what he intended to be another softball when he asked Barrett to explain why James Madison clustered those five freedoms together…
“I don’t know what you’re getting at on that one,” said Barrett, 48. “You mean like what is the common denominator?”
“Yes,” Sasse said.
“I don’t know why, actually,” the judge replied. “I’m sure there’s a story that I don’t know there about why those appeared in the First Amendment all together rather than being split up in different amendments.”
Sasse, who earned a doctorate at Yale in American history, explained to Barrett how the five freedoms were clustered because they are interconnecting. “You don’t really have freedom of religion if you don’t also have freedom of assembly,” he said. “You don’t really have freedom of speech if you can’t also publish your beliefs and advocate for them. You don’t really have any of those freedoms if you can’t protest at times and seek to redress grievances in times when government oversteps and tries to curtail any of those freedoms.”
Congress
Wall Street Journal: Senate to Subpoena Twitter CEO Over Blocking of Disputed Biden Articles
By Siobhan Hughes
The Senate Judiciary Committee plans to issue a subpoena on Tuesday to Twitter Inc. Chief Executive Jack Dorsey after the social-media company blocked a pair of New York Post articles that made new allegations about Democratic presidential nominee Joe Biden, which his campaign has denied.
The subpoena would require the Twitter executive to testify on Oct. 23 before the committee, according to the Republicans who announced the hearing.
GOP lawmakers are singling out Twitter because it prevented users from posting links to the articles, which the Post said were based on email exchanges with Hunter Biden, the Democratic candidate’s son, provided by allies of President Trump. Those people in turn said they received them from a computer-repair person who found them on a laptop, according to the Post…
“This is election interference, and we are 19 days out from an election,” Sen. Ted Cruz (R., Texas), a committee member who discussed the subpoena with Senate Judiciary Committee Chairman Lindsey Graham (R., S.C.), told reporters. “Never before have we seen active censorship of a major press publication with serious allegations of corruption of one of the two candidates for president.”
Politico: Republicans widen counterattack on Facebook and Twitter
By Steven Overly
And more GOP leaders joined [President Trump’s] call for Washington to reexamine, water down or revoke a 1996 law that limits people’s ability to sue online companies – a change that would threaten the tech giants’ fortunes.
“Censorship over political differences, whether done by the government or a tech company, is un-American,” said Rep. Cathy McMorris Rodgers of Washington state, the top Republican on the House Energy and Commerce Consumer Protection Subcommittee, Thursday during a POLITICO summit on artificial intelligence.
McMorris Rodgers warned a year ago that weakening the 1996 statute could chill free speech, but on Thursday she urged Chair Frank Pallone (D-N.J.) to hold a hearing on changes to the law. “These top platforms must be held accountable for the content bias and how they’re influencing the election,” she said.
House Minority Leader Kevin McCarthy went even further Thursday by calling for repealing the statute, known as Section 230 of the Communications Decency Act, which gives broad impunity to internet companies to moderate content on their sites. “It’s clear Section 230 in its current form is no longer working,” the California Republican said. “It is time to scrap the law and start over.”
The Post and Courier: Graham broke Senate rules by soliciting campaign funds in federal building, expert says
By Jamie Lovegrove
U.S. Sen. Lindsey Graham used an on-camera interview after the Supreme Court confirmation hearings Wednesday to solicit contributions for his reelection campaign, a move that a congressional legal expert said is a clear violation of Senate ethics rules.
Two formal complaints were filed with the Senate Ethics Committee about the issue Thursday, one by the nonpartisan Campaign Legal Center and another by the South Carolina Democratic Party.
Shortly after Graham finished chairing the Senate Judiciary Committee’s hearings for Supreme Court nominee Amy Coney Barrett, he spoke to reporters outside the hearing room, which was in a federal office building.
Asked how much he could attribute the Supreme Court issue to his recent campaign fundraising haul, which set an all-time record for Senate Republicans at $28 million, Graham said he thinks South Carolina voters are excited about Barrett and then directed viewers to his campaign website.
“I don’t know how much it affected fundraising today, but if you want to help me close the gap – LindseyGraham.com – a little bit goes a long way,” said Graham, R-S.C, who is locked in a highly competitive race.
FCC
CNBC News: FCC Chairman says he will move to ‘clarify’ Section 230, threatening tech’s legal shield
By Lauren Feiner
Federal Communications Commission Chairman Ajit Pai said Thursday he plans to move forward with rulemaking to “clarify” the scope of Section 230…
In a statement, Pai said the decision came after the FCC’s general counsel determined the agency has the legal authority to interpret the statute. The Department of Commerce petitioned the FCC to “clarify ambiguities in section 230” after President Donald Trump issued an executive order in May. The order, which came after Twitter added fact-check labels to Trump’s tweets for the first time, directed the FCC to set new rules on platforms’ protections under Section 230.
The FCC’s two Democratic commissioners, Geoffrey Starks and Jessica Rosenworcel, criticized Pai’s decision.
Starks said in a tweet that Trump’s executive order “was politically motivated and legally unsound. The FCC shouldn’t do the President’s bidding here.”
“The FCC has no business being the President’s speech police,” Rosenworcel tweeted…
In his statement, Pai referenced a recent filing by conservative Supreme Court Justice Clarence Thomas, where he wrote it “behooves” the court to determine the “correct interpretation” of Section 230.
The Media
National Review: The Censors Will Never Give Up
By Charles C. W. Cooke
In the New York Times, Emily Bazelon reminds us once again that an enormous number of journalists, law professors, and other academics simply cannot be trusted to defend the First Amendment – and, in fact, that they spend an increasing amount of time coming up with what they believe are new arguments for censorship…
There is nothing novel about the arguments presented in Bazelon’s piece. Indeed, they are exactly the same arguments that have always been made by people who would like to be more powerful than they are. And we are by no means obligated to buy into her euphemisms. When Bazelon writes that “democracies, in Europe and elsewhere, have taken a different approach,” or that the “principle of free speech has a different shape and meaning in Europe,” she means that governments in Europe use violence to prevent people from saying things that they don’t want them to say. When she refers to “regulations on speech” she means “censorship enforced by the police.” When she observes that “some liberals have lost patience with rehashing debates about ideas they find toxic,” she means that those people have abandoned freedom of expression both legally and culturally, and, having privately decided what is true and what is false, have decided to ruin the lives of anyone who dissents. When she proposes that “our formulations are simplistic,” she means that people cannot be trusted with the unalienable liberties they inherited, so experts must step into the breach…When she suggests “our way of thinking about free speech is not the best way” she means that we should tear up the First Amendment. She can put it how she likes; the answer is No.
Independent Groups
New Yorker: The Ad-Hoc Group of Activists and Academics Convening a “Real Facebook Oversight Board”
By Sue Halpern
The Real Facebook Oversight Board is a self-appointed proxy for the official Facebook Oversight Board, which was designed to function as a kind of independent appeals court, adjudicating various challenges to the company’s decisions on whether to remove content…
From now until the election, its members will use their various platforms to expose the many ways in which Facebook’s algorithms promote divisive, inflammatory, and extreme content; amplify disinformation and misinformation; and promote deceitful political advertising…”The most valuable thing this board can do is to inoculate voters, by giving them the facts,” [Roger McNamee, an early Facebook investor] told me. “Facebook’s model is that everything is content and it’s all equally valid. They call that free speech. But there is no definition of free speech that has any intellectual value that suggests the systemic destruction of truth, of fact, and of democracy is something that was guaranteed by the First Amendment.”
Online Speech Platforms
Politico: Twitter changes policy on hacked materials – but links to N.Y. Post story still blocked
By Cristiano Lima
Twitter announced late Thursday it’s changing its policies against posting hacked materials after facing widespread backlash for its handling of unverified reporting by the New York Post about Democratic presidential nominee Joe Biden and his son.
But the platform said it will continue to block users from posting links to the Post’s recent reporting on the matter for violating other rules against sharing private personal information.
What’s changing: The platform will no longer remove hacked content from the platform “unless it is directly shared by hackers or those acting in concert with them,” Twitter executive and safety lead Vijaya Gadde said in a tweet thread Thursday night. And the company will add labels with context to such posts instead of blocking users from sharing them, she said.
Gadde said the company is making the changes “to address the concerns that there could be many unintended consequences to journalists, whistleblowers and others in ways that are contrary to Twitter’s purpose of serving the public conversation.”
The Intercept: Facebook and Twitter Cross a Line Far More Dangerous Than What They Censor
By Glenn Greenwald
The grave dangers posed by the censorship actions of yesterday should be self-evident. Just over two weeks before a presidential election, Silicon Valley giants – whose industry leaders and workforce overwhelmingly favor the Democratic candidate – took extraordinary steps to block millions, perhaps tens of millions, of American voters from being exposed to what purports to be a major exposé by one of the country’s oldest and largest newspapers…
At the very least, the perception, if not the reality, has been created that these tech giants are using their unprecedented power over political and election-related information to prevent the dissemination of negative reporting about the presidential candidate they favor. Whatever that is, it is not democratic or something to cheer.
The rationale offered by both Twitter and Facebook to justify this censorship makes it more alarming, not less. Twitter claimed that the Post article violates its so-called “Hacked Materials Policy” …
The company added that their policy “prohibits the use of our service to distribute content obtained without authorization” because, they said, they “don’t want to incentivize hacking by allowing Twitter to be used as distribution for possibly illegally obtained materials.”
But that standard, if taken seriously and applied consistently, would result in the banning from the platform of huge amounts of the most important and consequential journalism. After all, a large bulk of journalism is enabled by sources providing “content obtained without authorization” to journalists, who then publish it.
Wall Street Journal: Facebook Has Made Lots of New Rules This Year. It Doesn’t Always Enforce Them.
By Jeff Horwitz
Facebook Inc. this year has made a flurry of new rules designed to improve the discourse on its platforms. When users report content that breaks those rules, a test by The Wall Street Journal found, the company often fails to enforce them.
Facebook allows all users to flag content for review if they think it doesn’t belong on the platform. When the Journal reported more than 150 pieces of content that Facebook later confirmed violated its rules, the company’s review system allowed the material-some depicting or praising grisly violence-to stand more than three-quarters of the time.
Facebook’s errors blocking content in the Journal’s test don’t reflect the overall accuracy of its content-moderation system, said Sarah Pollack, a company spokeswoman.
NBC News: YouTube bans QAnon, other conspiracy content that targets individuals
By Brandy Zadrozny and Ben Collins
YouTube said Thursday that it would no longer allow content that targets individuals and groups with conspiracy theories, specifically QAnon and its antecedent, “pizzagate.”
“Today, we are taking another step in our efforts to curb hate and harassment by removing more conspiracy theory content used to justify real-world violence,” the company announced on its blog.
The new rules, an expansion of YouTube’s existing hate and harassment policies, will prohibit content that “threatens or harrasses someone by suggesting they are complicit in one of these harmful conspiracies, such as QAnon or Pizzagate,” the post read.
YouTube said it would be enforcing the updated policy immediately and plans to “ramp up in the weeks to come.”
Reuters: YouTube bans coronavirus vaccine misinformation
By Elizabeth Culliford and Paresh Dave
Alphabet Inc’s YouTube said on Wednesday it would remove videos from YouTube containing misinformation about COVID-19 vaccines, expanding its current rules against falsehoods and conspiracy theories about the pandemic.
The video platform said it would now ban any content with claims about COVID-19 vaccines that contradict consensus from local health authorities or the World Health Organization.
YouTube said in an email that this would include removing claims that the vaccine will kill people or cause infertility, or that microchips will be implanted in people who receive the vaccine.
Candidates and Campaigns
Politico: Trump threatens ‘big lawsuit’ after Twitter briefly locks campaign account
By Quint Forgey and Nancy Scola
President Donald Trump’s reelection campaign complained Thursday that Twitter had briefly locked its account, escalating a day of Republican anger over online companies’ handling of unproven allegations against Joe Biden and his son Hunter.
Mike Hahn, a social media staffer on the Trump campaign, shared a screenshot early in the day of an official-looking notice informing the campaign that its Twitter “account has been locked.”
The notice said the campaign account had violated Twitter’s “rules against posting private information,” citing a tweet that accused the Democratic presidential nominee of being a “liar” and “ripping off our country for years.”
The tweet also included a link to what Hahn said was a video related to a New York Post report, published Wednesday, that leveled allegations against the Bidens that have drawn widespread skepticism…
Nearly three hours after Hahn’s initial tweet, the Trump campaign posted a message saying that access to its account had been reinstated, tweeting, “We are back and we are re-posting the video Twitter doesn’t want you to watch.”
