The Biden administration's First Amendment violation.

Plus, a question about lobbying.

I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's read: 11 minutes.

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We're covering the Biden administration's violation of the First Amendment. Plus, a question about lobbying.

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Quick hits.

House Speaker Kevin McCarthy (R-CA) plans to formally endorse an impeachment inquiry into President Biden this week. (The decision)
The United States finalized a deal with Iran to release five detained Americans in exchange for freeing up $6 billion of frozen Iranian assets. (The swap)
The FDA approved updated Covid vaccines designed to address more recent strains of the virus. (The approval)
Ukraine says it recaptured oil and gas drilling platforms near Crimea in the Black Sea that Russia seized in 2015 (The claim). Separately, North Korean leader Kim Jong Un arrived in Russia today to meet with President Vladimir Putin. (The arrival)
Lawyers for Donald Trump asked the federal judge presiding over his Washington, D.C. election interference case to recuse herself, arguing her past statements about the former president call into question whether she can rule impartially. (The request)

Today's topic.

The social media censorship case. On Friday, a federal appeals court said the Biden administration likely violated the First Amendment in some of its communications with social media companies, while conversely narrowing a lower court judge's order that had prohibited practically any communication between numerous federal agencies and social media companies.

Back up: In 2022, a group of Republican attorneys general representing private individuals and the states of Louisiana and Missouri sued the Biden administration, alleging it had participated in unconstitutional censorship. The group claimed that the Biden administration had engaged in a pressure campaign aimed at social media companies, in which it regularly flagged posts on platforms like YouTube and Facebook as promoting misinformation that the government thought would contribute to vaccine hesitancy.

In July, U.S. District Judge Terry Doughty ruled in favor of the plaintiffs and ordered the Biden administration and top officials not to communicate with social media companies about certain content. That ruling barred government agencies like the Department of Health and Human Services and the FBI from communicating with social media companies for "the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech."

Now what: On Friday, an appeals court affirmed parts of that ruling, saying that the Biden administration violated the First Amendment when it pressured major social media companies to remove what it deemed to be misleading or false content about the Covid-19 pandemic. A three-judge panel said the White House and Office of the Surgeon General had coerced the platforms to make their decisions "by way of intimidating messages and threats of adverse consequences" and "significantly encouraged the platforms' decisions by commandeering their decision making processes."

The Federal Bureau of investigation had also used coercion in its tactics, the court ruled, noting that social media companies removed roughly 50% of the material that the bureau flagged as worrisome.

"Given the record before us, we cannot say that the F.B.I.’s messages were plainly threatening in tone or manner," the judges said. Nevertheless, "we do find the F.B.I.’s requests came with the backing of clear authority over the platforms."

However, the appeals court also ruled that a blanket prohibition on communication with social media companies limited the government’s speech, and specified that the ruling should only apply to the White House, the Surgeon General's office, the FBI and the Centers for Disease Control and Prevention. It also loosened the lower court’s restrictions on how the government can communicate with social media companies, and it allowed the Biden administration 10 days to appeal to the Supreme Court.

The case is considered one of the most consequential free speech cases in recent memory. Today, we're going to take a look at some commentary about this case from the right and left, then my take.

What the right is saying.

Many on the right say the ruling validates the concerns of conservatives and scientists who were censored for questioning the Covid-19 dogma.
Some celebrate the court's ruling as a major win for free speech on social media.
Others applaud the ruling, but say it raises questions about other decisions where government coercion was permitted.

In The Free Press, Jay Bhattacharya said the government censored him and other scientists, but they fought back and won.

"Unfortunately, during the pandemic, the American government violated my free speech rights and those of my scientist colleagues for questioning the federal government’s pandemic policies," Bhattacharya said. "American government officials, working in concert with big tech companies, have attacked and suppressed my speech and that of my colleagues for criticizing official pandemic policies—criticism that has been proven prescient… On Friday, at long last, the Fifth Circuit Court ruled that we were not imagining it—that the Biden administration did indeed strong-arm social media companies into doing its bidding."

The victory "is not just for me but for every American who felt the oppressive force of this censorship industrial complex during the pandemic. It is a vindication for parents who advocated for some semblance of normal life for their children but found their Facebook groups suppressed. It is a vindication for vaccine-injured patients who sought the company and counsel of fellow patients online but found themselves gaslit by social media companies and the government into thinking their personal experience of harm was all in their heads."

The Wall Street Journal editorial board called the ruling a "rebuke" to Biden tech censorship.

“The Fifth Circuit Court of Appeals ruled Friday against federal officials for colluding with tech platforms to suppress speech, but you’d hardly know it from the limited press coverage," the board said. "The unsigned 74-page opinion begins by detailing the unprecedented coordination during the pandemic between government agencies and social-media platforms. Tech employees 'attended regular meetings' with government officials and 'seemingly stepped-up their efforts' to remove content to appease them, the decision explains."

"The Biden Administration argued that the tech platforms acted independently, and that communications by federal officials are protected 'government speech.' The Fifth Circuit disagreed, holding that officials crossed the First Amendment line by coercing platforms with threats of antitrust action and legal liability for user content under Section 230," the board noted. The Fifth Circuit narrowed the opinion and clarified how the government can communicate with platforms appropriately by telling "social media companies to 'be on the lookout' for certain posts provided there’s no intimidation." The careful opinion sets up a Supreme Court appeal "if the Biden Administration has the nerve. It may prefer to quit while it’s behind."

In Reason, Ilya Somin said the Fifth Circuit was right in ruling that it’s illegal to coerce social media firms, but wrong to uphold a Texas law requiring firms post material they prefer to keep out.

"I think the court largely got this case right. But the same court (albeit with a different panel of judges) was badly wrong last year when, in NetChoice v. Paxton, it upheld a Texas law requiring many of those same firms to post material they disapprove of," Somin said. “If the First Amendment bars government coercion to take down speech from your website, it also bars the use of coercion forcing you to put it up.” Something noteworthy about Missouri v. Biden, however, is that “the record analyzed by the court doesn't seem to include any examples of direct, unequivocal threats, such [as] ‘If you don't take down X, I will inflict punishment Y.’

"But as the court recognizes, context matters. If a representative of a Mafia boss tells a business owner to pay protection money, because ‘that's one of the easy, low-bar things you can do to make people like me and the Don happy,’ the context strongly suggests a threat of coercion. The same thing is true if a representative of a government agency with regulatory authority over Twitter or Facebook uses similar language to pressure those firms to take down material," Somin wrote. But there is a tension between this ruling and NetChoice v. Paxton... "Texas's law openly states that major social media firms may not refuse to post a vast range of material based on objections to its content. If they don't comply, the state will force them to do so. If that isn't government coercion of speech, I don't know what is!"

What the left is saying.

Many on the left are concerned about the ruling, arguing that it could limit the government's ability to stop disinformation spread.
Some suggest there are many examples of the Biden administration's actions in this case that seem innocuous and should be deemed constitutional.
Others suggest the appeals court may have erred in limiting the scope of the initial decision.

In Inside Higher Education, Tracy Mitrano warned that rulings like this could hamper our ability to defend ourselves from adversaries.

"The implications of this case are not just about augmenting First Amendment jurisprudence in the digital age. This case raises profound public concerns that must be addressed before our country locks itself into a structural and jurisprudential straitjacket that in the long run could have serious deleterious effects on our national security," Mitrano said. "Leaving aside the question of whether government influence on [COVID] issues and not actual regulations amount to state action, the evidence does suggest that the administration overstepped bounds and that there was a need for correction.”

"The problem is that in both decisions the issue of cybersecurity is overlooked," Mitrano said. "It is not clear how much of the COVID disinformation that had such a deleterious effect on public health in the United States originated from Russia, but given its so many other effective campaigns at sowing fear, confusion and distrust, one can assume quite a lot. Russians plant false seeds that flower on the internet. Structural gaps in U.S. governance may be keeping the United States from keeping up with the profusion or knowing how to confront these kinds of cybersecurity events."

In the Knight First Amendment Institute, Mayze Teitler said the initial ruling from Judge Doughty raised more First Amendment questions than it answered.

"There are lines that could potentially be drawn to guide these interactions, but this opinion doesn’t provide them... Not all government speech directed at private parties raises constitutional concerns, nor should it. The government needs to speak—including to private actors—in order to govern. Courts have recognized this interest through the government-speech doctrine, which gives government officials the latitude to decide which of the many statues to display in a public park, or, to use a hypothetical cited by the Supreme Court, to create and distribute millions of pro-war posters during World War II without an obligation to 'balance the message' [with] millions of anti-war posters," Teitler said.

Some interactions on Judge Doughty's list of infractions "don’t seem nearly as troubling on their face; to the contrary, they seem merely to reflect responsible efforts on the part of private platforms to ensure, in a period of confusion, that their content-moderation practices were defensible in light of a global pandemic. For instance, when COVID vaccines became publicly available, Facebook content-moderation officials reached out to CDC employees to understand whether posts about the vaccines were accurate—particularly given the enormous reach of vaccine-skeptical content on the platform—as part of the site’s misinformation policy efforts."

In Racket News, Matt Taibbi applauded parts of the ruling, but shared concerns over how the initial injunction was narrowed.

"On the surface it’s a huge win for the plaintiffs, especially on the broad-brush question of whether or not the First Amendment is being violated on a mass scale by the executive branch. But further down in the ruling, there were disturbing passages for the same plaintiffs," Taibbi said. "As one of a handful of people who’s read communications between tech companies and government in bulk (including many that haven’t been made public), I thought the scariest behaviors revealed so far involved, in no particular order, the FBI, the White House, the Department of Homeland Security (and its sub-unit, the Cybersecurity and Infrastructure Security Agency, or CISA), and the State Department, via the Global Engagement Center.

"A crucial part of the case seemed to involve the Election Integrity Partnership, set up by Stanford University in connection with CISA in 2020, rerun in 2022 and reportedly set to run again in 2024 (more on that soon)," Taibbi said. "Not only did judges rule that CISA’s content-flagging, which we saw in volume in the Twitter Files, was conduct that fell on the permitted 'attempts to convince' spectrum as opposed to 'attempts to coerce,' they removed EIP-type projects from the injunction. This is important because the EIP is likely to be a central vehicle for monitoring of 2024 election speech."

My take.

Reminder: "My take" is a section where I give myself space to share my own personal opinion. If you have feedback, criticism, or compliments, don't unsubscribe. Write in by replying to this email, or leave a comment.

It's important to remember how this effort from the Biden administration undermined important discourse.
They clearly overstepped, and the court was right to draw a line here.
This ruling is a reminder of the negative consequences of attempts to limit misinformation.

In discussing this ruling, I think the first and most important thing to emphasize is how damaging the government’s effort to influence social media platforms was to important discourse about Covid.

Remember: Some of the key people who were censored online were scientists like Bhattacharya who were making recommendations that now appear not just sensible, but maybe superior to what we actually did during Covid. If you’re going to read one thing about this latest decision, I suggest reading Bhattacharya’s perspective (under “What the right is saying”).

I've written about the negative consequences of trying to limit misinformation, and this case is a prime example of why I am so staunchly opposed to censorship — and so strongly in favor of letting the debate play out in the public. I'm sure the Biden administration limited the spread of some objectively false (and viral) social media posts about Covid-19. But in the process it also stifled important debates about how to navigate Covid-19 restrictions, tipping the scales of the public discourse in favor of its preferred policy, all through the means of coercing private companies to suppress speech it didn’t agree with. That's a fundamentally dangerous thing to happen in the United States, and it’s precisely what First Amendment rights are supposed to protect against.

This case is also an example of how identifying instances of government limiting speech can be so fraught. Biden officials didn’t simply write to Twitter and say, “remove this post criticizing us or we’re going to regulate your company into oblivion.” It wasn’t that simple, and it rarely ever is. In its ruling, the appeals court points to the context and manner of these takedown requests. Namely, some government agencies making the requests had certain regulatory and legal power over these entities, which turned their suggestions into implied or obvious threats to the parties involved, and that their contact was sometimes unrelenting.

The court also distinguished the details of this case from instances of non-coercion, citing a separate case involving Sen. Elizabeth Warren (D-MA) and Robert F. Kennedy Jr. as an example. In that instance, Warren asked Amazon to modify its algorithm to make Kennedy Jr.'s book harder to find. Kennedy Jr. sued. But Warren said her letter was a request, not a command, and there is no evidence Amazon viewed her letter as a threat. The court found that since the letter did not contain any warnings about adverse consequences and Warren had no regulatory authority over Amazon, her speech was permitted.

In contrast, the Biden administration used veiled threats of new regulatory liabilities backed by antitrust enforcement. From the ruling:

Officials threatened—both expressly and implicitly—to retaliate against inaction. Officials threw out the prospect of legal reforms and enforcement actions while subtly insinuating it would be in the platforms’ best interests to comply. As one official put it, “removing bad information” is “one of the easy, low-bar things you guys [can] do to make people like me”—that is, White House officials—“think you’re taking action.”

... And unlike the requests in Warren—many of the officials’ asks were “phrased virtually as orders.”... Officials made express threats and, at the very least, leaned into the inherent authority of the President’s office. The officials made inflammatory accusations, such as saying that the platforms were “poison[ing]” the public, and “killing people.” The platforms were told they needed to take greater responsibility and action. Then, they followed their statements with threats of “fundamental reforms” like regulatory changes and increased enforcement actions that would ensure the platforms were “held accountable.”

This contact between the Biden administration officials and social media platforms didn't just relate to Covid-19 policy, but also to social media posts about Hunter Biden and election security. As the court explained, we’ve “rarely been faced with a coordinated campaign of this magnitude orchestrated by federal officials that jeopardized a fundamental aspect of American life.”

These aren't always easy distinctions to make, but in this case I think the appeals court got it right. It is okay for a government entity to make requests or flag potentially dangerous posts or assist in moderation policies, especially when social media platforms (like Facebook) voluntarily seek their help. It's not okay for those agencies to incessantly pester moderators, make explicit or veiled threats of regulation, and coerce them into doing what they want.

There are certainly some valid arguments about the free speech hypocrisy of some Republicans, but they amount to little more than whataboutism here. Biden officials overstepped, and their actions were legitimately some of the worst I've seen from this administration. I'm glad to see a line — any line — drawn in the sand.

Your questions, answered.

Q: I have a question about the fact that Big Pharma spent $373.7 million on lobbying in one year: What are they spending that money on? What can possibly cost that much? I'm no lobbyist, but I can't imagine the costs of hiring some lobbyists could be that much — so where exactly is that money going?

— Carrie from Fredericksburg, Texas

Tangle: In general, to play offense and defense. We all have an idea about lobbyists “playing defense” by buying TV ads to endorse their viewpoints, talking to Members of Congress, gladhanding politicians to vote for the bills they support, and “encouraging” them to do so with generous campaign donations.

However, as I’ve written in the past, that’s only half the story; lobbyists can also “play offense” by getting contracted out to draft legislation that members of Congress then sponsor. Except instead of Congress paying for the legislation, corporations pay lobbyists to research what kind of legislation they should draft to support their industry, then offer that legislation to politicians.

That’s kind of the general story on lobbying. For gobsmacking sums of money, industries hire out (or often retain) lobbying firms. Those firms fundraise for politicians, draft legislation for them, and offer them consulting jobs after serving their terms (walking into the firm “through the revolving door” from Congress). If you think that sounds unethical, you aren’t alone. A 2022 Gallup poll found lobbyists to be the profession Americans see as the least ethical.

That being said, I agree the $373.7 million sum, which we referenced from Statista, is stunning. According to opensecrets.org, which very thoroughly tracks spending on lobbying across all industries, the total is over $375 million. And it might not surprise you at all to learn that that's more than any other industry spent in 2022.

I’ll point out that, interestingly, most of that money is spent on what I would call “playing defense.” According to opensecrets.org, Big Pharma lobbyists focused on campaigning against the Inflation Reduction Act (which authorized Medicare to negotiate drug prices) and the Lower Drug Costs Now Act.

Further, over half of the 1,834 lobbyists employed by Big Pharma came from Congress through the “revolving door.” Where I think they’re getting ready to play serious defense, though, is over Moderna’s and Pfizer’s plans to quadruple the price of their Covid vaccines, following their record profits in 2022.

Last year, I had a very interesting conversation with Anna Massoglia, Investigations Manager at opensecrets.org, and for more background I encourage you to listen to that interview here.

Want to have a question answered in the newsletter? You can reply to this email (it goes straight to my inbox) or fill out this form.

Under the radar.

A cluster of 31 small-to-midsize towns in Northwest Arkansas is now the 15th fastest growing area in the U.S. and on pace to hit nearly 1 million residents by 2045. That's more than double its current size and about equal to the population of Austin, Texas. The growth is being driven in part by Walmart’s headquarters, but the area is also packed with cultural establishments, all while becoming a test market for driverless trucks and drones. Entrepreneurship is booming. The region, once known for the Ozarks and vast farmland, is already the 100th-largest metropolitan area in the U.S., with an estimated 576,000 residents. Axios has the story.

Numbers.

55%. The percentage of Americans who say the U.S. government should take steps to restrict false information online, even if it limits freedom of information, according to a 2023 Pew survey.
39%. The percentage of Americans who held that view in 2018.
65%. The percentage of Americans who say tech companies should take steps to restrict false information online, even if it limits freedom of information, according to a 2023 Pew survey.
56%. The percentage of Americans who held that view in 2018.
42%. The percentage of Americans who say freedom of information should be protected by the government, even if it means false information can be published, according to a 2023 Pew survey.
70%. The percentage of Democrats who say the U.S. government should take steps to restrict false information online, even if it limits freedom of information, according to a 2023 Pew survey.
39%. The percentage of Republicans who say the U.S. government should take steps to restrict false information online, even if it limits freedom of information, according to a 2023 Pew survey.

The extras.

One year ago today we covered the death of Queen Elizabeth II.
The most clicked link in yesterday's newsletter was our 'Have a nice day' story about my friends who got married after meeting in a support group for those with loved ones who died on 9/11.
Go to the source: 808 Tangle readers responded to our poll asking what the most important step the government could take in response to the migrant crisis, with 48% saying the #1 priority should be limiting border crossings. 30% said it should be cutting red tape with more judges and better policies, 5% said better distribution of migrants to destinations across the country, 4% said more aid to countries migrants are coming from, 2% said more housing, and 1% said more aid for arriving migrants. "Let them work and pay taxes. There are many job openings and no one to fill them and the tax dollars would benefit our country," one respondent said.
Nothing to do with politics: The Brady Bunch house sells for $3.2 million.
Take the poll. Do you think the Biden administration violated the first amendment with its suggestions regarding content on social media? Let us know!

Have a nice day.

Mary Foss Starn and several of her friends were packing eggs into cartons at an Iowa factory in 1951 when they hatched a goofy plan to liven up their workday. The young women decided they would each sign their names and hometowns on a few eggs they picked at random, slip them into cartons, and send them out like notes in a bottle. “Whoever gets this egg, please write me,” Starn wrote on several eggs. She then added, “Miss Mary Foss, Forest City, Iowa” along with the date — April 2, 1951. Starn said she hoped someone in New York City would open an egg carton, find one of her eggs and become her pen pal. “I’d never been to New York City — still haven’t — so I signed four or five eggs and off they went on the truck to who knows where,” said Starn, now 92. Last month, 72 years after Starn shipped out the eggs, that moment finally arrived. John Amalfitano of New Jersey had posted that he’d received the egg about 20 years ago from a neighbor, Miller Richardson, while he was living on Staten Island. “It was pretty strange,” said Starn. “I thought somebody must have had a really good refrigerator.” The Washington Post has the story.

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