Government Censorship by Proxy

for for welcome everyone today to the KO Institute for this conversation on the topic of government censorship by proxy uh right off the bat let me just note that sadly one of our panelists Kristen came down ill last night so we will miss her here today um but we will carry on um with this discussion that is really even more relevant today than my when we first started planning the event as you are all probably aware that the Supreme Court has decided to take up this issue of what is government censorship by proxy and they'll be discussing that in there they'll be taking that up in the next term just to quickly introduce myself um my name is David and Sarah and I serve as the fellow for free expression and Technology here at the KO Institute where I handle issues of social media content policies attempts to regulate online expression and how we can encourage a culture of free expression most with online and offline um previous to KO I was part of meta content policy team that was responsible for crafting the community standards what you can and cannot say on meta's Platforms in this role I also made file decisions on content that were escalated because they were either difficult for reviewers to reach that decision at scale or because of the high-profile nature of the content and so when it comes to today's topic this is one that I'm personally familiar with When developing policies there were times when what governments were doing or threatening to do this was brought to my attention and I had to figure out how to proceed does my team craft a policy that is easiest to enforce ensures user expression or should we remove more speech to align with government requests and maybe fend off government regulation similarly when governments report content to us there were times when we felt pressure to reach a conclusion that might be different than we would otherwi otherwise reach some of our policy IES explicitly require government um perspectives such as reports from law enforcement about potential Veil threats but how should we handle government potential government bias or suppression that could come through those channels and of course this is where the rub is sometimes companies legitimately want government input to help provide expertise context or knowledge that's just simply not available in housee there are important conversations that happen between companies and government that are merely voluntary exchanges of information about important topics or simple requests that might not have any other coercive intent and so the challenges of governments using social media or any other companies for that matter as proxies for surpressing speech the challenge here is how do we determine when the government Communications cross that line when are they coercive and controlling or when are they just mere requests and information sharing based on my knowledge of being inside a tech company and having seen things like the Twitter files and other disclosures government interactions with tech companies have grown substantially and so we need to figure out how we're going to handle this and that's what we're here to discuss today what is going on with government pressures against speech why is it a problem and how as a society can we handle it and so today I'm happy to be joined by one of the authors of a new K paper shining a light on censorship how transparency can curil government social media censorship and more and you can pick up a copy of that on the outside and it's certainly available on the website as well Andrew Grossman uh is an adjunct scholar here at the KO Institute he practices appella and constitutional litigation in the Washington DC office of Baker Hustler he has written widely on Law and finance bankruptcy law National Security Law and the Constitutional separation of powers he is a frequent adviser to Congress on complex legal and policy issues particularly relating to constitutional limits on federal power he has testified numerous times between house and set Judiciary committees and in addition to articles in Professional Publications his commentaries appeared in dozens of Journal uh periodical and newspapers and he's in addition to being a frequent commentator on uh radio and television he has written several miky briefs that have appeared before The Supreme and uh federal courts of appeals he is a graduate of dartman the University of uh Pennsylvania's Fells Institute of government and the George Mason University of Law School of Law and so with that Andrew I'm G to turn it over to you to describe your paper and and what you found thank you David and thank you as well to the KO Institute uh for hosting this event as well as to KO again and K's will dufield uh for encouraging our work uh on this topic um I think it's important to start with the real the recognition that we currently enjoy what I think is the most wide wide openen Communications and media environment in the world's history every citizen now has a megaphone to reach Untold numbers of readers listeners and viewers on the internet in a way that was simply never possible even in the recent past paradoxically at the same time we also face as a quantitative matter more government interference of speech than at any other time in our nation's history simply going by the Numbers more Americans are being censored more speeches being censored and suppressed by government actions than has ever been the case in the past but this isn't primarily the old kind of censorship we're not talking about book bands we're not talking about other types of traditional prior restraints on speech on Publications um what we're talking about is a phenomenon that I call government censorship by proxy I'll freely admit it's not a great name other people call it jawboning and I'm certainly interested if others have suggestions for what to what to call this phenomenon but what we're talking about by this is something different than the government reaching out itself acting as a censor to C to curtail a speech act instead what we're talking about is the government exerting pressure sometimes coercion sometimes other forms of of of force uh to service providers who facilitate speech and facilitate other types of Conduct in our economy so that may include social media companies when the government requests that a user be deplatformed or that a particular post be removed or it may involve for example the provision of financial services to disfavored speakers and people's uh whose associational activities uh are opposed by government officials that's why we call this censorship by proxy the government is undertaking or has the aim of engaging enging in traditional type censorship but rather than doing itself doing that itself is working through a thirdparty private proxy the service provider today I'm going to discuss three aspects of this first we'll talk about the nature of the problem and how we got to this point second I think it's important to focus on why this is a problem how does it impact our rights civil discourse and ultimately our democracy and then third and most important what can be done about it there have been a number of proposals and there is of course as David mentioned ongoing litigation that targets this issue we have a novel proposal that tries to shine a light on what it is that the government actors are doing how it is that they're acting to suppress speech um but also recognizes that governments do appropriately participate in the marketplace of ideas so let's start with the nature of the problem I want to be clear that what we're talking about isn't exactly social media sensor ship as that term is commonly used and it what we're talking about is both broader and narrower than that it's broader because this phenomenon of censorship by proxy it goes beyond social media there have been examples of the government um interacting with service providers across the economy um to Target and uh punish disfavored speakers and disfavored organizations so it's not just social media but also this is this what we're not talking about is the P the decisions of private actors about what types of speech they would care to publish uh and what types of customers they would care to provide services to those questions of course uh implicate very important policies and are are centrally important to the practice of free speech culture uh in our country but at the same time in my view they implicate very different issues and in some respects are at least less severe than government censorship of speech the history of this type of sens of this type of phenomenon goes back many years in fact it probably is just about as old as Government so long as government has power to compel uh private actors to act it always has the opportunity to use that power to coers things beyond what is specifically authorized by law the phenomenon of what's called jawboning uh was first applied to actions by the Kennedy administration and particularly by President Kennedy uh in 1962 to sway uh steel producers uh against uh moving forward with a price hike that might that would have added to the overall uh inflation across the economy at that time he gave a speech pointedly targeting the producers and calling them out um and his Department of Justice uh sent uh inquiries and in some cases threats uh to steel companies uh so as to affect their pricing decisions and that quickly became labeled as JW owning but that was sort of a what I would think of as a primitive example of this phenomenon because it didn't exactly involve the proxy concept I think where that first arose was in 2013 during the Obama Administration in what was known as operation choke point this was an initiative by the Department of Justice and federal financial Regulators to pressure Banks to drop a variety of businesses that were disfavored by the administration it included firearms dealers tobacco shops and payday lenders it also included specifically speech-based targeting the fdic's official list of groups of of uh Bank customers of concerned included groups publishing quote racist materials uh as well as producers of pornography operation choke point when it came to light and through litigation was eventually terminated but the same phenomenon of the government working through private actors to do what it couldn't do on its own uh re arose uh in about 2017 following the election of President Trump there the government's efforts were focused more tightly on speech specifically the government was began focusing on so-called election interference misinformation disinformation all those words that we Now understand the government uses when it wishes to uh remove certain types of speech and information ideas and opinions uh from social media and sometimes more broadly from the internet itself and of course this type of this type of censorship reached a new height uh during the pandemic in 2020 and 2021 when the CDC and the surgeon general's office as well as the White House Began issuing thousands of Demands to social media companies to remove so-called misinformation regarding the efficacy of vaccines um regarding the origins of the Corona virus um and numerous other uh claims opinions and sometimes factual and medical information regarding treatments for the Corona virus uh how it spread through populations and how other countries were responding to it and even the types of public polic policies that the Govern that the states and the federal government ought to consider uh in response to the pandemic this was widespread we've learned since from the Twitter files as well as litigation that there were numerous government offices coordinating um to send demands uh to every to all of the major social media networks sometimes focusing on specific speakers whom they wished to be deplatformed um the ad the Biden Administration identified what it called a dirty dozen list of uh persons that it claimed were spreading Corona virus misinformation and that in their view uh ought to be removed from the internet um it also it also targeted specific posts certain types of claims uh the lab leak claim uh comes to mind um and all other aspects uh of ideas and in some cases information that simply contradicted the administration's policies and beliefs uh with respect to the Corona virus and the policy response to it but as I said this phenomenon is not limited to social media and I'll give you one example um around the same time but not dealing with the pandemic um the New York Department of Financial Services uh began targeting insurance companies uh regulated by by the state which is to say all of the nation's largest insurance companies um to urge them to drop uh from insurance um what they describe what what the what the uh agency described as Firearms promotion organizations their target of course was the NRA and the pressure worked the NRA was dropped by its largest by by its primary insurer and it's had difficult subsequently difficulty subsequently obtaining insurance for its basic business operations um that that that is currently being litigated in a case called Volo and while I'm not councel to the NRA in that case I will disclose that I am outside counsel to the NRA but these examples from social media from the economic sphere these are just the things we know about and by all indications they're just the tip of the iceberg one of the major problems uh one of the major aspects of this problem is that censorship by proxy by and large occurs in the shadows of course there have been public statements by the president uh and by the president's press secretary urging social media companies to deplatform certain types of speech but so much so many of these communications are made directly to the social media companies themselves through portals through emails phone calls and in many cases through meetings that are organized between government actors such as the FBI and official at the social media companies none of this is open to the public and so the public doesn't have an understanding of the way that the government by exerting this sort of pressure uh is acting to influence public debate on important policy issues so why has this all come to a head now well I think there are a few reasons for that one of course is simply the rise of social media there's less intermediation to speech and therefore there is more speech on a broader array of topics and simply more noise and more uh whatever type of speech that one might disfavor um its quantity has increased astronomically and so from the government's point of view there are simply more targets a second reason I think is the concentration of service providers not only in the social media space but in the financial space as well think about banks for example many years ago uh most banking customers were served by local banks that didn't necessarily have much interaction with The Regulators in Washington DC today when so when you have large National Banks that serve such a substantial proportion of Americans for their banking services there now is a point of Leverage that government Regulators can access to reach all kinds of different all kinds of different customers and so there really is sort of a One-Stop shop or a several Stop Shop uh for the government to be able to exert force in this fashion and of course these larger organizations whether they social media companies or financial institutions they're used to dealing with the government and they of course have teams of officials who interact with their counterparts in government on a regular basis and that goes into another phenomenon which is the increasing pervasiveness of Regulation across the economy the more power the government actors have the more leverage they have to be able to compel uh private entities to act and that's especially true where regulation is pervasive such as in the financial sector and then finally and I think it shouldn't be discounted officials have simply learned that censorship by proxy works that was the lesson of operation chokepoint in which large numbers of businesses lost their access to banking services and it's the lesson that we've seen since 2017 17 uh when government requests have led to the deplatforming uh of many people using social media uh as well as to the suppression of many genres of speech the government knows that if it asks for social media companies to do something not always but frequently they will be inclined to act so why is this a problem one could argue as the Administration has as as as well as its supporters that what we're talking about here is misinformation disinformation people simply misleading the public and in some cases criminal or other types of unlawful behavior and that may well be true in some instances but of course in the United States we don't have a Ministry of Truth and it's not difficult to find examples of speech that the government sought to suppress that later turned out to have a kernel of truth to it if not being entirely true that will include of course course certain types of claimed election misinformation um in the runup to the 2020 election and it includes as well much of the early commentary on the Corona virus pandemic including regarding its Origins and in some instances the efficacies of vaccines the vaccines of course were a modern Marvel but it doesn't mean at the same time that they were infallible the government however Drew little distinction between those types of criticism in its request to social media networks to remove content that argued for example that the vaccines did not always prevent infection or they wouldn't necessarily always prevent the spread of the disease first and foremost this has an obvious impact on our rights and the first amendment is the one that comes to mind everybody agrees and recognizes that the government can't and shouldn't impose prior restraints on speech consistent with the First Amendment and there's a good reason for that we have a culture here free and UNH uninhibited speech that informs every aspect of our lives and our democracies this is how we reach decisions it's how the public informs itself and it's how people think about public policies assess different options and ultimately decide on the effectiveness of their government and their choice of leaders but it's not just the first amendment that's being impaired um we've also seen the threat to Second Amendment rights I gave the example of the New York uh Financial regulators and that and the targeting uh of of so-called gun advocacy organizations and I think what this demonstrates is that the government can use this type of Leverage censorship by proxy to really impair any sort of right it doesn't simply have to be speech rights if somebody is engaging in conduct that the government disfavors whether or not that conduct is unlawful the government has the Leverage to deplatform and otherwise punish that speaker and thereby curtail our most basic associational and expressive rights uh as well as our rights to engage in any type of conduct that might be disfavored by the by by the government and what's and and the problem here is that this sort of Leverage allows the government to do what what would be forbidden if the government attempted to do it directly the government can't of course simply uh stifle the speech of advocacy organizations because it disagrees with the positions that they're pressing but what it can do and what it has done to dat is operate by proxy to limit and restrict the speech of those entities so that they're in part removed uh from the public debate and are unable to pursue their advocacy objectives now of course there's also an impact on civil discourse the public has a right to information and people have a right to listen and the government is exercising when it uses censorship by proxy an influence over the views opinions ideas and information that can be aired and that can be discussed in public it can shut down entire sides of a debate this is bad in and of itself because it is an unseen a hidden influence on the course of public debate that may mislead the public about what it is people believe and ultimately what it is that's true and what it is the government is doing doing and whether the government is right or wrong uh in its views but it also has secondary Effects by stifling debate in this fashion the government can lead to paranoia people who think their speech is being uh is being restricted when in fact maybe it isn't and maybe nobody is listening because their speech is not valuable it can lead to conspiracy theories both about what the government is doing and why the government is doing it we saw this with respect to speech regarding the origins of the Corona virus as the government exercised a heavy hand with respect to the lablak theory it led many to speculate that perhaps the US government was involved uh in the development of the Corona virus pandemic a factually unfounded claim but one that from a conspiratorial mindset makes some sense if that is the genre of speech that the government is targeting and of course this type of censorship leads to radicalism people who hold heter ideas don't simply abandon those ideas because they might get pushed off of the major social media platforms not only do they become conspiratorial but in many cases they migrate to minor platforms to private forums to mailing lists where they find themselves in an echo chamber with other people who hold their VI who hold the same views and who simply one up one another in their radicalism and extremism we've seen this not only with respect to p mic related speculations but also with respect to foreign policy and other types of extremism domestically and foreign finally all of this affects the conduct of our democracy as I mentioned it affects the way that we talk about and debate public policies it affects the information that we assess when considering policies but even worse is that this type of censorship by proxy simply circumvents the Democratic the Democratic process none of this has been legislated there's not a law that you can point to that gives government officials this type of authority even worse this Authority is being exercised in a free floating manner based on the Discretions views and opinions of the government officials who are exercising this power and seeking to remove content from the internet and it's actually worse in the sense that the conduct that is being targeted by these actions is conduct that in nearly all instances is lawful in other words there's no law prohibiting having a wrong idea or stating an incorrect fact and yet those sorts of th and yet that sort of speech is being curtailed by the government along with facts that are maybe merely debatable uh or opinions that simply May contradict the government's policies and points of view this is what happens when the government can leverage its powers to do things and curtail and curtail rights that are otherwise Beyond its powers finally there's no accountability to any of this as I said this occurs in the shadows if the public agrees or disagrees with what the public is doing in this regard if people wish to defend their rights there's the fundamental hurdle that nobody knows the full scope of what it is government actors are doing there's nothing there's no policy document regulation there's simply nothing nothing that one can point to and say this is wrong I disagree with this or you shouldn't be doing this or in some instances there's no ability to know I was deplatformed because a government official demanded that and therefore there's no ability to obtain relief in court so what to do about this I've seen and I think there are about three different genres of responses to the phenomenon of censorship by by proxy the first and the one that's I I think made the greatest inroads to date is simply litigation the Supreme Court is recognized for many years that government coercion uh to restrict speech uh violates the First Amendment the seminal case of course is Bantam Books versus Sullivan which involved uh threats of criminal criminal prosecution by the Rhode Island commission to encourage Morality In youth uh that was regarding certain nov no s that the state believed may have been obscene um and of course book sellers who re and book distributors who received those threatening letters were deterred from selling their books within the state of Rhode Island not withstanding that the commission itself had no legal enforcement Authority whatsoever as I said the court recognized that that violated the first amendment in other cases the court has recognized that significant encouragements by the government upon a private actor May convert that private actor actions into State action in other words into government action that would then be subject to the normal limitations on government action which would include the First Amendment these are the types of theories that underly the suit Missouri versus Biden which is now before the Supreme Court under the title um Murthy versus Missouri the claims in that case involve government government censorship by proxy of social media primarily but not only concerning the Corona virus pandemic the the plaintiffs in that case which include States as well as a number of private individuals uh whose social media activities were restricted were able to obtain Discovery and obtained a vast wealth of information about the government's censorship campaign requests that were made to deplatform specific speakers posts that were that the government urged to be withdrawn um and entire topics uh that the government and and modes of opinion and and factual assertions that the government simply requested be removed from social media networks and that the as well as Communications asking the social media networks to ADI to revise their content moderation policies so as to preemptively block this these types of targeted speech the plaintiffs in Missouri versus Biden were able to obtain an injunction from the district court that was very far-reaching uh including not only them but any types of activities by three government entities the White House the FBI and the surgeon general's office um that sought to encourage or coers social media companies uh to violate the First Amendment uh with respect to any users on those platforms and with respect to any social media platform whatsoever the government managed to obtain a stay of that injunction recently by the Supreme Court which also agreed to hear the case in its current term the issues in the case are complicated but it fundamentally comes down to the question of what degree of government pressure suffices to transform a Content decision made by a social media Network into government action that violates the First Amendment and there isn't a lot of case law in that area there's also a significant issue in the case with respect to the extent of the remedy the government complains before The Supreme Court that both the nature of liability and the breadth of the of the remedy effectively prohibit the government from so much as speaking with social media networks for examples who advise them that certain speech might be criminal uh or criminally fraudulent for example uh or that or that it might cause widespread public harm and that the social media networks themselves may wish to consider that as they make their own decisions litigation for this reason has a number of complications un and uncertainties and I sure we'll discuss uh as we go forward uh in this event uh some of the aspects and some of the complications of the Missouri litigation but suffice it to say that litigation is not and cannot be a silver bullet for the reason that I said earlier so much of this activity occurs in the dark and the people targeted simply don't know what they may know is that a post has been removed or that their account is is deactivated they have no way of knowing that the government was involved in that decision and if so in what Manner it was involved and so it's a very difficult thing for an for an individual faced with those circumstances to go into court and simply speculate that the government was the one behind it those types of cases and all likelihood will be and have been dismissed at the earliest stages of litigation even before the pl if can obtain any sort of discovery that might be able to substantiate his or her claims the second type of the second type of policy response that's been put forward is legislation specifically legislation that bans the government from undertaking this type of activity the difficulty with legislation is that it's very easy to describe censorship by proxy in the abstract but it's incredibly difficult to describe what exactly would be covered by a Prohibition as we saw in the EV through the Twitter files as well as the evidence in the Missouri case the government very rarely makes explicit threats with respect to content removal uh content removal requests sometimes it simply just says you should be aware of this sometimes there's no requests at all it simply provides factual information for example that certain accounts might be Bots and not and don't correspond to any human beings or that some bot may be part of a network that is being operated by a foreign country this is information it's not a request the government's information might be right or wrong and the social media networks might or might not operate on it um but ultimately at least going by the face of these requests it is the choice of the social media networks themselves and indeed the evidence in the Missouri Case indicates that the social media networks only uh only resp only agree to approximately half uh of the government's request to remove content and so it's difficult to say exactly what it What genre of cover of excuse me of conduct by government actors one would prohibit through through through legislation because if it's coercion well we see very little coercion at least on the face of the requests and as I said many of them are informational if it's merely making suggestions or providing information well that surely cuts too broadly because the social media networks may want to know for example if certain posts uh are tied up in fraud and are part of fraudulent schemes if they otherwise violate criminal laws um or that people are being misled on their networks or that other of their moderation policies are implicated based on facts that the government may have in its possession the social media the social media networks as well as other service providers have a right to listen to the government if they want the information and so any anything that would ban the government from providing that sort of information May well raise its own First Amendment issues finally there's the proposal that we put forward in our KO paper and it's a takes a very different approach from litigation as well as legislation our focus is simply transparency we know the government is undertaking these actions and we know that it's very difficult to draw a clear line be between what what everybody agrees ought to be prohibited or at least what many agree ought to be prohibited as against what many agree is a legitimate use of of the government's ability to provide information to speak and in some instances to exercise its bully pulpits what we've Pro what we what we propose is simply radical transparency the paper lays out a s a a a system by which government officials that make requests and requests could be suggestions all the way through to coercion it requires that government officials who make these types of requests simply report it to the Office of Management and budget which would then publish them uh quickly in a centralized repository that is deidentified so that people aren't being doxed um but that provides a window to the public as well as to targeted individuals about how it is the government is exercising this power what speech it is targeting and the frequency with which it's doing it the proposal that we put forward is modeled on other government government transparency measures including Foya and the Privacy Act and includes the same types of redactions to Pro to protect confidential government information uh that are applied in those acts so these are - tested protections that ensure that the government's legitimate interests with respect to its information are observed at the same time we also propose that the that as possible the indiv indviduals who are targeted by government by government censorship H proxy receive notifications so that they can connect what's happened to them to both the deidentified public reports um as well as ultimately to the government actions that cause them to be deplatformed or to otherwise have their speech restricted in terms of the mechanism uh including the centralized Administration by om The Proposal is modeled off of ordinary government uh ordinary government reporting mechanisms that apply to federal employees across the administrative State and so the burden would be very low um in our view um reports of this sort could be made to the Office of Management and budget in the in in in a matter of a minute or two through a centralized web portal uh operated by that agency and it should be easy based on experience for the Office of Management and budget to provide those reports online and make them available to the public in short order uh certainly no longer than a week after they've been provided uh to the agency the benefits of transparency are severalfold one it gives us an idea of what the problem is if there's going to be some type of legislative approach that's more nuanced than a ban we as well as Congress need to have an understanding of the scope of the problem and how the government is exercising this power and to date that's something that we do not have second transparency and simply the sunshine of public attention is itself a deterrent if you look through the discovery materials in the in the Missouri litigation many of the requests that were made to social media networks were and I don't use this word lightly ridiculous the White House and other other government actors were jawboning social media networks to review to remove information and opinions that were simply inconvenient to the administration or potentially politically damaging and I think everybody would agree that that is simply an improper use of government Force but what's important is that we've seen in the past that when these types of abuses come to light they tend to stop because the government officials depend on be on the ability to operate in the shadows to make these kinds of untenable requests and to wield their power uh in this improper manner simply requiring that these types of requests be disclosed to the public May well curtail the worst abuses and force the government to Think Through more clearly how it is exercising this power and to limit uh the way the way in which it does so so as to better respect rights or at the very least avoid political embarrassment finally we propose an enforcement mechanism for this disclosure regime the government uh government actors are subject to uh you know know enforcement penalties for example for violations of the Hatch Act which which prohibits certain types of politicking on the job our proposal would apply the same types of penalties to failure to report uh requests uh to undertake censorship by proxy we would we would combine this with a six-year statute of limitation so that no government actor could feel that he would simply be shielded by the current Administration and so there would always be the risk that failure to report might lead to liability in the future uh when there's a new Administration in office ultimately the idea of our proposal is that by shining a light on these things we can put together more tailored policy responses we can have greater accountability and oversight as to the government's exercise of its powers Congress will be able to do its job and the public and targeted individuals can understand what's happening to them and how the government is operating and how it is influencing public debate uh as well as uh public discussion of its own policies and operations so with that I thank you thank you so much for that uh significant explanation of the paper and please do uh I said read it it's online and available outside um a quick a couple questions from me and then we've got some questions online and and we'll also be able to send some microphones around the room um so just for us worth if you're thinking about a question right now um online questions you can join the conversation and submit questions directly on the event web page Facebook and YouTube and on X formally known as Twitter um using the hashtag um K hash k1a so feel free to submit those questions right now um as we as I have a little bit of a conversation with Andrew before we start um one one quick question and just to note this is in the paper while the proposal you've just mentioned is one that uh is legislative of nature in theory this could also be undertaken through uh executive action if you had an executive that was serious about providing uh radical transparency to the public is that right that's exactly right um the president wields broad authority over the regulation of the agencies and the administrative State and it would be within the power uh of the president to Simply establish this type of reporting program via executive order uh nothing pres nothing prevents the president from doing it tomorrow and that even includes in a general sense the the enforcement Provisions that we've proposed um they could be uh done through a government certification that would be uh undertaken by relevant government officials um in the same way the same type of proposal would be readily adoptable to state governments as well yes the only prohibition is their unwillingness to give up this informal coci of power that they re essentially that's exactly right I mean when you think about it what is the objection to transparency of the government's exercise of power I mean it's typically what we expect and demand in every other aspect of government operations we have no thing in this country that's as secret law um and yet that's effectively what's being wielded here because the government is leveraging the laws that are on the books to reach Beyond them and address conduct that hasn't been the subject of any law and so if the government is going to undertake that type of leveraging you would think uh it's the kind of thing that everybody would expect would be transparent and you know would be made available to the public so the public can understand what it is the government is doing and where the government thinks the guardrails are um but in the months since we've put forward this proposal um the only objection that we've seen to it is simply that the government officials wielding this power might not like it um they might be embarrassed it might curtail their ability uh to to make requests that in some cases they view as sensitive um but it strikes me that that is not a very persuasive objection and indeed it only highlights the the need for this type of approach wonderful um with that I think we'll open it up to questions from the audience and from online um I'll take one here from our audience and then I'll take one from online so I think there's one right here and if you could just uh an announce your name and affiliation and end with a question oh I think Anonymous speech is a KO tradition isn't it I'm John samples I work here at Ko uh first of all great paper great idea I don't think it's being discussed enough and there's a problem of getting it out there but it's a very good uh paper and worth reading I want to ask you about you've discussed briefly and somewhat obliquely that you recognize exceptions to your transparency regime and it makes you know I think everyone can agree that there's a set of cases where we would agree we don't want the the government official doesn't has have to disclose it relates relates to trials law enforcement and uh certainly some National Security I want to ask you about a particular case that I believe happened and get your response to it and whether your regime your transparency regime would cover it or not so uh in um October of 2020 the New York Post ran a story about a laptop that was thought to was thought and subsequent was found to be belonging to Hunter Biden that contain and they drew implications about that for the Democratic presidential candidate about two days before that story ran an FBI agent said to Facebook employees that there was a Russian disinformation story about to break and they should be on the lookout for it so my question to you is now the other thing we know that because about two years later Mark Zuckerberg said that this happened now let's just assume that he's telling the truth and I'm not sure there's been any serious doubts about that um but let's assume he is uh under your regime your transparency regime would that FBI agent have to disclose what he said to Facebook which after all seems to have led Facebook to essentially not suppress that speech but to uh fix it so no one could link to the story on Facebook three billion people 200 million Americans um and that linking is not some people think that's not uh a limit on speech but I noticed you mentioned the rights of listeners and so many many people that might have known about that story probably did not uh because of Facebook's decision now just to finish I mean a couple of things it seems to me that there's two things you can say why it shouldn't be part of transparency a it wasn't coercive by the government agent in question a second possibility is that we don't have to worry about this because Mr Zuckerberg has uh voluntarily disclosed it so I'm I don't know I think this is a tough case in some respects but you may not view it that way and I wanted to get your thinking on it I do not view it that way um the great thing about a transparency based approach as opposed to a Prohibition based approach is that it can be over inclusive um there's not as much of an imperative to Define coercion with uh Precision because nothing is being prohibited it's merely being disclosed um and our under our proposal any type of request or encouragement by the government uh to suppress content uh would have to be reported um and we we don't have any exceptions to that it's and and so we're able to Define what is included within that reporting requirement exceptionally broadly because again it's merely reporting and The Government Can undertake whatever activities it's otherwise able to undertake and the fact that that may be from time to time over inclusive uh is certainly not a vice um and you know that's the you know rather than take an exception-based approach our our proposal attempts to cover the field and then allow the government to redact information from what's publicly disclosed based on the traditional types of redactions that apply to foyer requests and in some instances to privacy act request so the government isn't forced to show all of its cards about necessarily why it's making the request or what information is behind that but it is required it would be required to disclose that the request was made and I'll take I'll combine two questions from online speaking to the question of breath and how how how widely we're trying to cast The Net here there's two questions here first about um mostly in the conversation and in the paper we're discussing the executive branch um so that's been the main sort of gist of the The Talk today and um and so the question is what about other branches of government you mentioned state for instance state governments as well what about the legislature what about the courts and similarly to combine the two questions what about how do we how does this relate to other countries uh the EU being particularly aggressive in this realm of trying to regulate speech obviously we're focused on the us on this paper but just to sort of combine talk about the breadth of the way this could apply how do you think this applies to other parts of the US government and then how does foreign governments how does this interact with foreign governments as so far as the legislative branch is concerned as we described in the paper uh Congress certainly could adopt a similar approach in its own rules um but it would be very difficult um for you know there are different considerations with respect to Congress because of course members of Congress aren't exercising enforcement Authority and so they lack the ability to make the precise types of threats that we've seen as well as implicit threats that we've seen from the Executive Branch the legislature is the branch that writes the laws it's not the one that's carrying them into execution um that said we have seen um a lot of jawboning um by the by members of Congress and in some cases by congressional committees um speaking out against speech that they disagree with or view as incorrect In some respect uh putting pressure on the social media companies to restrict certain types of speech and in some cases uh threatening legislation um the problem of course is that Congress and members of Congress have the right to threaten legislation um that's what they do to all of us uh when they come forward with their legislative proposals um and Congress has the right uh like it or lump it um to look at uh current events and how things are operating in the real world and to Fashion legislative responses to those things um as it views appropriate to the circumstances um so there could certainly be there could certainly be uh something that would that would regulate in some manner or require transparency of these types of requests made by members of Congress but I think some of the considerations that are a little bit different as for other countries I don't think there's any reason that they couldn't adopt a similar type of transparency regime but you know to some extent a lot of the speech you know when we're talking about us Affairs and US policies and us uh political campaigns um it relates more to the interests of the United States and isn't necessarily being regulated uh or being targeted uh by foreign countries um you know we certainly have the ability to set an example for the World by adopting a transparency regime that brings these sorts of things into light and sets a model um but ultimately we don't really have the power to force other countries uh to follow that approach um one other question online um asks about the specific nature of the penalties you describe um so it asks about what penalties should the government or especially the the individuals who might be engaging in in appropriate use of of of of their their of government pressure what what effect should when it's found out let's say through a trans your transparency based regime what should the impact be to the person the individual the state actor who has done that misdeed sure um let me take that in in two steps so under our proposal the penalties would be on government officials who fail to report uh demands and requests uh made to third party providers um and the penalties there mirror the ones in the Hatch Act which include employment penalties um and financial penalties uh as well and I believe uh potentially imprisonment although I believe that's that's very uh very rare um in a broader sense um currently there aren't really any penalties on the books uh for government officials undertaking this type of conduct um theoretically they might be subject to an injunction for violation of the First Amendment um but in general they're not going to be subject to uh monetary penalties or or any other sort of um any any any any any other sort of Remedy um that's something that Congress may wish to consider in the future uh but currently as I understand it the laws in the book simply don't reach this sort of conduct got it um another question from online is uh a question about your view on sort of the threat between misinformation versus censorship and essentially asking what can the government do about what they view to be misinformation on social media without running a foul of the First Amendment or jawboning well the government has a great deal of power at hand to deal with disinformation uh you know to the extent that one views that as a proper function of government which many people of course do not um but to the extent that the government is going to do that I mean first and foremost the government has its bully pulpit the government has the ability to publish its own information rebutting claims that are made by others um and setting forth the facts as it understands them and attempting to substantiate them based on the facts and the resources that are available to the government in other words fight speech with more speech um the government also has the ability and in much the same mode um to explain to third party to to social media providers what it believes is misinformation or disinformation and harmful um service providers um including social media networks you know do have content moderation policies and in some instances is they do seek to restrict for their own reasons uh certain types of misinformation and to the extent that they wish to listen to what the government has to say uh with respect to those topics um the government certainly can offer them that type of information so that they can make their own informed decisions I had a question um getting into the weeds a bit about um the the fifth circuit and its view um on how sort of to handle that line between if if you think about litigation as being the way that I said some folks would say this should be handled um looking at the fifth circuit that you mentioned how there's often look a look looking for a clear causal connection of this government communication led to this in content being deplatformed or suppressed and that's sort of the traditional coercion based approach but the fifth circuit largely issued that kind of direct line to oneto one um comparison instead was looking at sort of the sum total of of of government communication so not saying that any individual communication was coercive but when you look at the sum total of of communications being um you know given to social media companies that in their words imparted a lasting influence on the platform's moderations decisions or that it quote um ensured that the platform's decisions were not made by independent standards but were instead marred by modifications from government officials um so what is your view on this sort of broader significant encouragement view of job Bing and also importantly what do you if if you wish to Hazard a guess what do you think the Supreme Court will have to say anything it because clearly they will have to consider the fif the fifth circuit's opinion it's always a complicated task to attempt to disentangle um private decisions and from and state action when the two are in some sense intertwined and the evidence in the Missouri Case indicated that the government was simply directing a barrage of requests and demands um to the social media networks uh sometimes in public uh from the bully pulpit of the white house uh and many many many more times in private through email messages through phone calls um through meetings um through Outreach by government actors in a variety of different agencies and offices and it's difficult to tell uh it's as I said it's difficult to disentangle you know to what extent the decisions that were made by the social media networks were in fact their own decisions versus to what extent they were motivated by the government in some instances there was a one-to-one correlation where the government requested a specific piece of content or specific person uh to be deplatformed and the social media networks followed that request although again there may still be a question as to what extent the government's action was coercive as opposed to Simply being something that prompted the social media networks to make their own choice but the fifth circuit as you as you explained did look at this more holistically looking at the entire field of government Communications particularly regarding the pandemic uh as well as some election related speech um and I think recognized this as a government effectively a government program that had gone off the rails and so it made sense to look at it from a programmatic approach rather than one that was necessarily tailored to specific in instances of content removal I think that was a fair and realistic appraisal of the situation if you look at it from the point of view of the people who were being arguably coerced that is the social media Networks you're not talking about a single email you're talking about the full field of government force that was brought to bear upon them and so it wouldn't make sense to Simply disregard that broader context and look at everything individually at the same time it raises a very difficult question as to how exact you know what exactly is the line when you look at things with that type of breadth between coercion and merely encouragement or suggestion or providing information all things that the government may do in general uh without violating the First Amendment or without convert and without converting private entities like social media networks into State actors when they act on that information and I think the fifth circuit's approach to that while realistically reflecting the situation may well give the Supreme Court pause because it's because and I think this is apparent on the face of the fifth circuit's decision as well reasoned as it was it's very difficult to draw a clear line here and ultimately the injunction that the fifth circuit partially upheld prohibits government officials from violating the First Amendment through these sorts of activities and it can be very unclear from the point of view of of a government official what type of request what type of information what type of Outreach might well violate that prohibition um and so there are possibly insuperable line drawing problems here if you look at this from a programmatic point of view because again you're talking about a variety of different Conta contacts that have to them a variety of different content different things the government was asking for different ways it was putting its requests and different types of threats or implied threats or sometimes suggested threats or implicit threats um it's difficult to take that all at once and say this amounts to unlawful coercion or significant encouragement because you're involved with the the platforms decision-making and then think how that applies to other cases and how it ought to regulate government actors going forward so the government officials know what they can lawfully do and what they can lawfully say and what falls on the other side of the line so that's going to give the court pause and it may well be that the court res that that the court ultimately settles on a narrower view of things when you have that type of onetoone correlation when there's a closer Nexus when there's an Express threat that is attached to a specific request that's something that courts can deal with and draw a clear line but when you're dealing with the greater breadth it becomes a lot fuzzier and a lot less clear about where exactly the law reaches and finally I mean there is also the issue of Remedies I mean the remedy in this case uh that is the injunction extended beyond the particular plaines in the case to all users of social media networks and all social media networks and the government does have a point that an injunction of this breath that covers that effectively tells government officials don't violate the First Amendment with respect to anybody anywhere um is kind of what lawyers call like a follow the law injunction in other words it doesn't give them specific information about what it is they need to do to comply with the injunction and so from the government's point of view there is certainly a problem here about how it is it's supposed to uh ensure you know what what type of rule it is it's supposed to follow and how and from the Court's point of view there's going to be a question well how do you define that what is you know what do you if there's going to be an injunction what does it say so that it's something that government officials can actually follow uh you know if they intend to undertake that in good faith so similar to the prohibition the legislative Pro prohibition approach the line drawing question once again rears its head and how do the courts Define that line just it's a similar problem um the only only only difference being that it's a court rather than the legislature um and so with that we are we are just over time so I think with that we will wrap our event thank you to the to everyone who's asked the question thank you for the questions I was unable to get to and thank you Andrew for uh this great discussion thank you thank you [Applause] all [Music] [Music] [Music] for

Channel: The Cato Institute

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Id: 8plW2xN6UV0

Length: 64min 17sec (3857 seconds)

Published: Fri Nov 03 2023