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Note: This is an unedited rush transcript. Please check any quotations against the audio recording.

Nico Perrino: Welcome back to So to Speak: The Free Speech Podcast where every other week, we take an uncensored look at the world of free expression through personal stories and candid conversations. I am, as always, your host, Nico Perrino. We are coming to you now from ��֭����’s DC office. Last episode was in studio at our Philadelphia office. We like to change it up around here. But, we do have joining with us someone who was on that last episode, Aaron Terr. Aaron , welcome back to the show. You’ve got a new job here at ��֭����.

Aaron Terr: That’s right. Yes. I’m now ��֭����’s Director of Public Advocacy. So, I think we realized we’ve been having these rapid response meetings since our expansion earlier this year trying to address various off campus speech issues, and realized that we really need an entire department that’s gonna be dedicated to this task of engaging in non-litigation advocacy.

Nico: Yeah. Which we have on campus, but we don’t have off campus.

Aaron: Yes. Right. And, that’s probably the way my former department, which is campus rights advocacy. So, yeah. It’s the same sort of idea. Non-litigation advocacy, but for off campus issues.

Nico: Yep. Yeah. And, you’re gonna be building out a team here to help you with that. So, if there’s anyone listening whose interested in that sort of work, reach out. I don’t think we have a job description up now, but hopefully we will soon.

Aaron: Yeah. No, but we’ll be looking. Yeah.

Nico: Yeah. So, very excited about that ‘cause we definitely need that support. There’s a lot going on happening off campus that does not involve ��֭����’s active litigation, much of which we’re gonna discuss today. But, joining us today for the discussion of the news and for a conversation about jawboning by the government is Will Duffield. He’s a policy analyst in the CATO Institute Center for Representative Government where he studies speech and internet governance. His research focuses on the web of government regulation and private rules that govern Americans’ speech online. Will, welcome back.

Will: : Thank you very much for having me.

Nico: I think we’ve met before. You’ve been at CATO for a while, right?

Will: : I have, and I’ve been to lots of free speech events around DC. So –

Nico: We’re probably in the same circle.

Will: : Yeah. Exactly. Either there, or I am natively from just outside of Philadelphia.

Nico: Oh, whereabout?

Will: : Chester County.

Nico: Okay. I lived in West Philadelphia for two years when I first started at ��֭����, but I never got out to the burbs very much.

Will: : Oh. Well, they’re changing.

Nico: Yeah. You’re not from Philadelphia, are you?

Aaron: No. I’m originally from Long Island, New York. Yeah. A New Yorker. I’ve been in Philly about 10 years now.

Nico: Oh, did you go to school in Philadelphia?

Aaron: No. But, I came to Philly right after graduating law school, which was 10 years ago, ‘cause my first job was clerking for a judge on the Pennsylvania State Court. Yeah.

Nico: Okay. Oh, okay. Cool. Well, let’s jump into it, guys. We’re gonna try and do what we’ve been doing, or at least did in the last episode, which is cover the news of the day related to free expression. And then, the second half, we’re gonna kinda do a deep dive into one of your areas of expertise, Will, which is jawboning against speech of an article for the CATO Institute called Jawboning Against Speech: How Government Bullying Shapes the Rules of Social Media.

What is jawboning? And does it violate the First Amendment?

Issue Pages

Indirect government censorship is still government censorship — and it must be stopped.

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But, before we jump into the news of the day, I wanna jump into some breaking news that we didn’t really have much time to prepare for before jumping into this show. ��֭����, as some of our listeners will know, filed a lawsuit against Florida’s Stop Woke Act, and the act essentially – And, I’m just pulling up our press release here because this literally happened 45 minutes ago. Essentially prohibited instruction on eight concepts related to race, color, national origin, or sex in college classrooms. Colleges warned faculty that the law prohibits endorsing, “Any opinion unless you are endorsing an opinion issued by the Department of Education.”

So, it limits offering even critiques of colorblindness, for example, and requires faculty to censor guest lecturers. We filed for a preliminary injunction in the case, and just this morning, a federal court halted enforcement of key parts of Florida’s Spot Woke Act in the state’s public universities. And, you know a decision’s gonna be good when you’re filing a First Amendment lawsuit and the first two lines of the decision quote from 1984. So, the decision says, “It was a bright cold day in April and the clocks were striking 13, and the powers in charge of Florida’s public university system have declared the state has unfettered authority to muzzle its professors in the name of freedom.”

So, the court ruled that the “positively dystopian act” officially bans professors from expressing disfavored viewpoints in university classrooms while permitting unfettered expression of opposite viewpoints. The court, as I mentioned, invoked George Orwell to drive home that if liberty means anything at all, it means the right to tell people what they do not want to hear. Our lawsuit was on behalf of a professor, a student, and a student group, and it argued that the higher education provisions of the act unconstitutionally kill free expression and mandate faculty censorship on state college campuses.

So, it’s a big win for us. I wish I could say more. I think it was something like a 129 page opinion that our lawyers are currently going through. But, the long and the short of it is we won much of what we were asking for in the preliminary injunction. So, an exciting morning here at ��֭����. So, Aaron , let’s jump into the stuff that you guys knew we would be talking about today. Book bans. Book bans, book bans. Aaron , we’ve been seeing a lot of these, haven’t we?

Aaron: Yes, we have. It’s become something of a unfortunate trend. I think it’s funny, too, because I feel like it wasn’t that long ago that there seemed to me to be a pretty broad consensus that banning books is wrong and dystopian. But, that consensus does seem to be breaking down somewhat.

Nico: Yeah. So, ��֭����’s been a part of the banned books week coalition, and banned books week happens every September, I think, for years now. And, you would get criticisms that it was kind of anachronistic. Book bans weren’t happening anymore. And so, they even changed it to book bans and challenges. There’s a lot of efforts for people to take books off the shelf, but nothing would come of them. You saw this a lot with Harry Potter, for example, and witchcraft.

But now, you’re actually seeing proactive efforts and successes in getting books off the shelf, particularly in school libraries, but also within curricula. And, there’s a different way you kind of probably wanna look at those between libraries and curricula. One, I think the state has a little bit more authority to control within public compulsory education. The other one, as we’ll discuss in this case, in Keller, Texas, it’s a little bit more clear-cut. But, Will, I’m curious to hear how you’ve been kind of thinking and observing these issues.

Will: : Well, I think in a way it’s telling that we’re seeing the reemergence of book bans in both of these sort of public, in a state democratic sense, venues. It hasn’t moved to private bookshelves. They aren’t talking about preventing, at least as far as I know, Barnes and Noble or Amazon –

Nico: There actually was one case. Yeah. Aaron . In Virginia, actually, gender queer, there were two state law makers. What was the other one? What was the name of the book? It was something Fury.

Aaron: A Court of Mist and Fury?

Nico: Yeah. I think that’s it.

Aaron: It’s the one that sounds like Game of Thrones, but isn’t. Like, A Song of Ice and Fire.

Nico: But, there were two state laws.

Aaron: Yeah. And, they invoked some kind of archaic, but still on the books law where you could essentially sue the book, itself, and have it declared obscene.

Will: : I see. Well, perhaps the exception proves the rule here.

Nico: They did not win.

Aaron: Right.

Will: : But, I think there’s something to the reemergence of these sort of demands of public morality in this space, first especially, because there, whether it be the school curriculum, or how our school or merely community library, there’s a sense of democratic communal ownership that you don’t have over Barnes and Noble. So, if someone is worried about the morals or attitudes of the community, it makes sense that they would go there first. But, it speaks to the importance of having private channels of distribution, which aren’t winner take all in the same way as your local library.

If Amazon stops selling your book – I know there have been some controversies around their private decisions there. You can get it elsewhere. But, I think particularly when we look at the groups that we hope for libraries to serve, we would expect them to be a book repository of last resort. And unfortunately, they’re becoming kind of the vanguard for these censorship efforts.

Nico: Yeah. Let’s talk about one that we’ve been talking about in our rapid response meetings, Aaron , involving the color independent school district in Keller, Texas. On Monday, November 14th, it voted four to two to adopt a policy banning books in all public school libraries including high school libraries. Age appropriateness is important to consider in some of the stuff. Banning any books that have any reference to gender fluidity. And, during the meeting, you had members of the school board say things like, “We’re talking about an ideology. A perspective that they’re trying to ban.” And, that’s important for a reason I’ll get into in a moment.

And, they wanted to avoid discussion of “political issues,” which is kind of funny because they have political books in the library already including Donald Trump and Hilary Clinton’s books. So, board members who voted in the four to two majority did have some opposition on the board that said that this was going too far. “So far beyond the original intent” of banning material it described as porn. And, there was even some board members who expressed concerns that it could reach content involving the Disney movie Mulan or the Revolutionary War hero Deborah Sampson.

But, this is a pretty clear-cut case with regard to violations of the First Amendment under a ruling called Board of Education Island Trees Union Free School District v. Pico. Aaron , do you wanna talk a little bit about that?

Aaron: Yeah. So, the Supreme Court in that decision, which was 40 years ago, explained that school officials do have broad discretion over the curriculum, and they even have discretion over what gets stocked in school libraries. But, they can’t exercise that discretion in a narrowly partisan or political way. They can’t restrict access to materials just for the purpose of suppressing a certain political idea or social perspective. And, you said it before quoting the board president. In his own words, he said, “This is about suppressing an ideology or perspective.”

So, yeah. I think it’s a clear-cut violation of the First Amendment. School officials can make judgements about what goes in the library based on viewpoint usual material like age appropriateness.

Nico: Ideology. Educational value. Yeah.

Aaron: Educational value. Right. But here, they’re now doing themselves any favors by just kind of admitting openly that this really is about suppressing certain viewpoints.

Nico: The definition here is both quite broad and, as you point out, doesn’t speak to anything beyond ideological content. It says here, “Any theory or ideology that espouses the view that gender is merely a social construction and on.” But, even that first prohibition would seem to hit a large amount of feminist political thought. You’ve boxed yourself in there to essentially saying that all expressions of gender are biological and there’s nothing else. And, I think on the right, perhaps we’ve been quite critical of the conflation of sex and gender on the left, or the collapse of one into another. And, here you have this school board confusing the two completely, or combining them again, as you point out, in a very censorious fashion.

Aaron: Yeah. Right. You don’t even have to be a hardcore feminist to accept that there’s some cultural influence, I think, on gender expression.

Nico: Yeah. I enjoy hunting. I was raised with that as a man in a way that my sister wasn’t. Can I talk about that in the school? Can I write a book about that?

Aaron: Well, this is the same school that bumbled its way earlier with a new policy involving sexual content in books, and to banning the Bible and the Diary of Anne Frank, which got pulled off the shelves after it passed that policy.

Nico: Yeah. I don’t know that anybody should be trusting their judgement after that. But, the Pico case, and I do wanna quote directly from it because it’s good guidance when thinking through some of these book bans. The court held, in that case, Justice Harry Blackman made clear that school officials may not remove books for the purpose of restricting access to the political ideas or social perspectives discussed in them when the action is motivated simply by the officials’ disapproval of the ideas involved. And, as we saw from that board quote, they’re talking about an ideology. A perspective.

And, in that Island Tree School District v Pico case, what were the books they were going after? Kurt Vonnegut’s Slaughterhouse-Five. Langston Hughes’ Best Short Stories by Negro Writers. And, the group that was seeking to ban them said the books were “anti-American, anti-Christian, anti-Semitic, and just plain filthy.” So, I think banned books week has a new raise on DTRA so to speak. It’s not just challenges. It’s actual bans moving forward. Any other thoughts on banned books before we move on the next item?

Aaron: Yeah. Well, one of the points that we’ve made in these types of cases is that it also just teaches students the wrong lesson about the First Amendment and freedom of expression. I’m just thinking about the recent Supreme Court decision in a high school student speech case in Mahanoy. Justice Breyer, right in the majority opinion, called America’s public schools “nurseries of democracy” and talked about how our represented democracy needs a functioning marketplace of ideas, including unpopular ideas, and that schools have an interest in ensuring that students understand the importance of that principle. And, this Texas school district’s policy is doing the opposite of that.

Nico: Mahanoy. Yeah. We’ll see what happens with it. I’m sure it will get challenged here shortly. I wanna pivot now to California. They’ve passed two laws recently, and we’ll cover both of them. But, I wanna start with the one that I think Aaron , we at FIREcan get behind. So, what was it? September or October they passed a law called the Decriminalizing Artistic Expression Act, which restricts the use of rap lyrics or other artistic expression, although –

Aaron: Creative expression is the phrase they use, which as much as this is billed as a rap lyrics bill, it applies much, much more widely. And, I think that’s where the sort of interesting effects will be.

Nico: Oh, for sure. Yeah. The conversation, as you know, has been around the use of rap lyrics in criminal trials.

Aaron: Yeah. ‘Cause I think there’s been a few high profile examples of that happening in prosecutions of rappers recently. So, that’s the context in which it came up.

Nico: Yeah. And, there was a book, and we covered that book on this podcast called Rap on Trial. It has an introduction written by rapper Killer Mike that talks about the use of rap lyrics to essentially put people in jail, and how it’s usually only applied to rap lyrics. They didn’t throw Johnny Cash in jail for saying, “I shot a man in Reno just to watch him die.” The police didn’t even investigate it.

Aaron: Yeah. Or, Bob Marley, right? I don’t think he actually shot the sheriff, to my knowledge.

Nico: But, some of the discussion around this was that rap lyrics just couldn’t be considered at all in these trials, and that’s not quite the case, right?

Aaron: Right.

Will: : Well, this bill has some enumerated exceptions that seem to make sense. This creative expression, rap lyrics or not, can’t be admitted as evidence unless that expression is created near in time to the charged crime or crimes, there’s a sufficient level of similarity to the charged crime or crimes, or includes factual details not otherwise publicly available. I think all of those are quite anodyne exceptions. And, the last one in particular would seem key if the lyric is to be useful as evidence. If it includes some non-public information about the crime, well it seems like the guy knew something and then wrote about it there.

Aaron: Yeah. I think it’s about balancing that versus prohibiting evidence of artistic expression that the prosecution is seeking to introduce just to infect the minds of a jury with this impression that the defendant is just a generally violent individual or is someone whose prone to engage in criminal conduct.

Nico: Yeah. Can you talk about probative versus prejudicial evidence?

Aaron: Yeah. And, I think this law, if I’m going based off of my memory of taking evidence in law school, ‘cause I’m not a criminal expert. But, yeah. Whenever the state seeks to introduce evidence in a criminal prosecution, there is this balancing test between the probative value of the evidence, meaning the tendency of the evidence to prove the facts alleged by the prosecution, versus its potential to bias the jury against the defendant in ways that don’t so much have to do with the likelihood that they committed this specific crime on this specific occasion. So, I think what this act is trying to do; it’s within that general framework.

Nico: It’s giving guidance to judges.

Aaron: It already exists, and it’s giving more guidance to judges who are still making the ultimate determination in this discretion.

Nico: Yeah. Is there a separation of powers concern when you have a legislative body telling judges that they need to review potential evidences in a certain way? We’ve done rape shield laws, for example.

Aaron: I think they’re the ones criminalizing the things or not in the first place. So, for them to put guardrails around that, to me, doesn’t –

Nico: Yeah. Doesn’t concern you.

Aaron: I think there’s a difference between setting up the guardrails versus if it was to be a blanket prohibition against this type of evidence, I think that would be more concerning. Taking away the discretion of the judges to make that determination on a case by case basis.

Will: : And, it’s contestable, as well. This bill sort of sets up a process for both the defendant and the prosecution to sort of go back and forth on whether certain contested lyrics should be included. You can bring in outside experts.

Nico: Yeah. I think you’re actually required to bring in outside experts. I’m reading Popehat. Ken White, our friend, he did a Tweet thread about this law and he said, “Perhaps the most unusual part of the statute is the way it requires judges to consider, if offered, expert testimony about whether the artistic expression should be taken literally, and whether judges are likely to freak out over it.” So, judges to consider if offered. So, if the defense offers expert testimony? Not quite sure what that means.

But, there is part B of this law that says, “The court shall consider the following, as well as any additional relevant evidence offered by either party. So, credible testimony on the genre of creative expression, experimental or social science research, and evidence to rebut such research or testimony.” So, I know there are other laws like this that are being considered both at the state and federal level. I think there’s one in New York. I believe there’s a federal law, as well. And, FIREparticipated in an advertising campaign sort of encouraging the passage of these laws with Warner Media Group that ran as I think two full page spreads in the New York Times.

So, I’m sure this won’t be the last that we hear about it. Aaron and Will, I’m just kinda dropping this one on you now, but I thought it might be relevant ‘cause we talked about it in one of our rapid response meetings. But, do you remember when New York City or the New York Police Department – This is kind of jawboning, right? It had at least three local New York artists removed from the Rolling Loud music tour that was set to take place in Brooklyn because they thought that their appearance in this show would insight violence. And, I think the Rolling Loud group ended up saying, “Okay. We’ll drop them from the show.” But, it’s just another piece of example about how rappers are under the thumb of government, and maybe unduly –

Will: : Right. Well, before we leap too much into jawboning, how many different levers the state has to pull if they want someone to change their behavior. Nice parade you’ve got there. Would be a shame if you didn’t get a permit for it. And, we don’t usually think about those as potential speech controls, but when you have informal demands, almost any lever the government has is at its disposal can become a tool of speech control.

Nico: Yeah. I realize now we’ve mentioned jawboning a few times because it is, of course, the title of your article here. But, it’s not a phrase that I’ve heard or I was even familiar with prior to four months ago. So, what does it actually mean, Will?

Will: : Okay. Well, we will leap right into it.

Nico: Well, I wanna go back to some other news items. But, I think it’s important for our listeners that they understand what that means.

Will: : Of course. Sure. So, it was traditionally or first used in an economic context. It’s a reference to Samson’s vengeance on the Philistines in the Book of Judges.

Nico: In the Bible.

Will: : Yes.

Nico: Which, if you go to school in Keller, Texas, you won’t have access to.

Will: : Sorry, kids. In which he proclaims with the jaw of an ass, “I have slain 1,000 men.” And, in the late ‘60s, early ‘70s, in kind of an inflationary environment like the one we’re getting into now, presidents and other elected officials were trying to control price inflation. And, because they didn’t have legal tools to do this to set prices, they often resorted to informal speech. Cajoling, pressuring, threatening business owners and banks to keep prices and rates low.

Nico: Isn’t Biden kind of doing that now with oil companies and gas prices?

Will: : A little bit. A little bit, yes, and in the sort of diplomatic foreign policy realm that you’ve always seen this around oil pricing. But, at the time, in perhaps a more religious America, it made a quip that Carter’s speech to these bankers and businessmen was like Samson’s vengeance in that with the jaw of an ass, kind of mocking Carter there, he was slaying thousands of businessmen.

Nico: Yeah. The double meaning of ass.

Will: : Yes. Yes, exactly. So, you’ve heard this term in this economic discourse for a while. But, it’s really only in the aughts, 20-teens, as our speeches moved online that we’ve started to see this informal pressure, this jawboning levied against social media platforms in an effort to control what their users say.

Nico: Yeah. And, maybe we should just jump into the jawboning stuff now. I’ve got two other stories that perhaps we can come back to later. But, I think you’ve really segwayed us nicely into talking about some of the stuff that’s been happening with Elon Musk, which I think some might argue are examples of jawboning. Let’s start with Ed Markey. He is a senator from Massachusetts. He sits on a lot of the committees that regulate industries that Elon Musk’s businesses are in.

And, Markey sent a letter to Elon Musk, and I’m quoting from a story from the Hill right now, asking for more information about how accounts on Twitter are being verified, and accusing the social media company’s new owner, in this case Elon Musk, of allowing the spread of disinformation and “putting profits over people.” He sent this letter after his account was copied by a Washington Post reporter testing how easy it was to impersonate notable figures using Elon Musk’s, at that time, recently launched, now paused new blue check mark verification system.

The fake account was set up with Markey’s permission. It sounds like from the Hill’s reporting here that he coordinated with the Washington Post, presumably to make a point or to test the verification system. But –

Will: : So, to me, this is classic jawboning. Markey in a, I think, follow-up Tweet or interview here, discusses the FCC’s consent decrees against Musk and other Musk companies, and demands that Twitter implement guardrails around disinformation. Now importantly, the consent decrees don’t have anything to do with speech or content moderation. One of them has to do with Musk’s speech.

Nico: Yeah. Like, he needs to get all of his tweets run by the Tesla’s general council before tweeting.

Will: : Can’t alter the stock price by meeting.

Nico: Yeah. Which is a full time job if you see how much Musk has been tweeting lately. But, yeah.

Will: : But, Markey raises the specter of these consent decrees and the potential for them to harm Musk and Twitter if he violates them or is seen to violate them. But then, demands something that isn’t covered by them, and frankly that Markey can’t demand or pass legislation to achieve: Twitter cracking down on disinformation. And, he finishes with this line, “Fix your companies or Congress will.”

Which to me, was incredibly reminiscent of Senator Dianne Feinstein’s 2017 demand that sort of inaugurated this new age of social media jawboning when she said, “You’ve created these platforms, and now they’re being misused, and you have to be the ones to do something about it, or we will.” That was in the context of Russian disinfo.

Nico: And, the platforms did do something about it, right?

Will: : It seems like they did, yes. You can never really – And, part of the difficulty of jawboning is that causality is very hard to tease out.

Nico: Yeah. Well, Elon Musk was kind of egging him on, wasn’t he?

Aaron: Well, yeah. So, Markey posted this letter on Twitter and is demanding answers from Musk about how was this person able to create a Senator Ed Markey account with a blue checkmark. And then, I think Musk’s response was, “Maybe because your account is a parody.”

Nico: Perhaps it’s because your real account sounds like a parody. And then, he took another dig. “And, why does your personal profile have a mask?” Very Musky, right?

Aaron: Right. So, I could see Markey responding to an accusation of jawboning by saying, “Well actually, the things I was talking about, yes, they were other things. Other real problems that Musk has. His Teslas are running people over, and I’m telling him be better fix those problems or Congress will.”

Nico: Yeah. It’s the running relevance to the fact that he sits on the committee that regulates those industries and those sorts of actions of those mitigating circumstances when we think about jawboning.

Will: : That’s all well and good. But, once you start talking about disinfo guardrails in the same breath, I think you’ve crossed a line.

Aaron: Right.

Nico: Crossed a line because of First Amendment concerns.

Will: : Yes.

Nico: It started with the disinfo concerns, right? That’s where this whole dispute began.

Will: : Exactly. It’s hard to divorce that letter if it wasn’t like Markey was on the grind about Tesla recently and this just spilled over. It was very much the other way that he was worried about Twitter under its new ownership. At the end of the day, platforms can implement bad or poorly thought through policies, and it isn’t really Congress’s role to step in and correct their mistakes for them. Imagine that in other business contexts. Lockheed Martin. The new design you’re going with, I’m not sure I like it. So, let’s think about this. Or, car companies.

Nico: Yeah. Right. And, this is a probably a good place to point out that misinformation is not an exception to the First Amendment. There’s no general First Amendment exception for false speech. There are certain types of false speech that may be punishable like fraud. But, there’s just no general exceptions for just anything that the government deems misinformation.

Aaron: Well, the Supreme Court had that stolen valor case where someone was pretending to be a Medal of Honor recipient and wasn’t. And, I think there was probably a law that said you couldn’t pretend to be a Medal of Honor recipient, and this person was prosecuted under it, and it went up to the Supreme Court and the Supreme Court said, “No, you can lie about your credentials.” I’m sure there are certain contexts in which you can’t, but in that case.

Nico: Yeah. I think if, for instance, that person had used that lie to try and gain something of value in turn.

Aaron: Like a job, perhaps?

Nico: Then, maybe you’re entering fraud territory.

Aaron: But, just saying on social media, and I’m not saying that’s what happened or the facts of this case are.

Will: : Trying to make himself look better for women. Be more attractive. But, as the court gets into, there are all kinds of lies that people tell in the context of dating, and if the state were to get involved in that, well, this country has fertility problems as it is. That would only make it worse.

Nico: Well, misinformation is different from disinformation. I think we covered this in the last podcast.

Aaron: And, malinformation.

Nico: Yeah. We were having an article kind of breaking down all these different words and phrases that literally were not in my mind, much like jawboning, it seems like two years ago. Misinformation used to just be lies. Or, when Trump came into power, fake news, he would say. But now, there’s this whole lexicon surrounding it and I don’t know where it came from precisely. Perhaps nowhere. But, disinformation is like you know it’s a lie and you’re deliberately spreading it anyway. That’s just like the Russian bot farms versus someone who just gets something wrong like Lebron James.

That was gonna be another topic of our conversation today. He tweeted out at Musk essentially after there were allegations that there was a rise in hate speech on the platform after he took over. Turns out that to the extent, there was a rise in hate speech. It came from a few accounts, probably bot forums.

Will: : Yes.

Aaron: Right.

Will: : Well, and just chat trolls. As soon as Musk took over, there were a certain segment of people who felt let’s push this as far as we can. Let’s see exactly what we can get away with. And, yes, scare all the libs now that Musk is in charge. So, you had a fairly concerted effort by a group of channers to just create new accounts and use them to shout racial slurs at people. It was nasty. A lot of them were banned right off the bat. [Inaudible] [00:33:16] Roth had a good thread about how Twitter responded to this.

Nico: Yeah. He was Twitter’s safety person, I think.

Will: : Yes. Was. Oh.

Nico: But, when I say misinformation, I mean there’s Lebron James who tweeted at Musk during that conversation around hate speech. He said, “So many damn unfit people saying hate speech is free speech,” which I think those of us at this table know and our listeners who’ve been listening to us for a while know there is no First Amendment exception for hate speech to the Constitution. And so, we kind of did a brush back against Lebron James that surely, he did not see, but we felt was warranted.

Will: : Well, I think it’s interesting in our conversations about misinformation versus disinformation that that kind of eliteness info. The misperceptions of celebrities and people in power don’t get more criticism as disinfo because in terms of both their power to set standards and perhaps to act on the work around them, they have a lot more than your average voter who you’re worried will miscast a vote because he believes the wrong thing about vaccines or recent bills. But, these sorts of rumors or accepted truths that are not truth at the elite or sort of blue check level seem to get a pass, but that’s where it can do much more harm.

I said the other day the idea that the Eli Lilly false Twitter account was responsible for a decline in its stock when really there was a decline in the demand for one of its drugs. Lots of prominently placed –

Nico: So, wait. I didn’t know that that was actually – So, the facts here are that Elon Musk launches his new verification system. Someone creates a fake Eli Lilly account and says, “As of now, all insulin is gonna be free,” or something like that.

Will: : Yes.

Nico: There was a decline in Eli Lilly’s stock price that people attributed to that. But, you’re saying there was something else going on?

Will: : Yes. There was, I believe, a retroviral drug that Eli Lilly and a couple of other competing firms created versions of, which apparently the demand for available alternatives, too, declined and increased such that they all took a hit.

Nico: There was some sort of announcement about that that just so happened to coincidentally be timed with –

Will: : Yeah. Indeed. And, despite that and several sort of debunking threads from finance types, it seemed as though all of the platform watchers just chose to believe or accept that it was the false Eli Lilly account that had prompted this. In general, when false news on Twitter particularly kind of clearly false announcement like that, if it were to effect the stock price, it’s going to be very short term because unless there’s truth beyond the lie –

Nico: Unless our news ecosystem is really screwed up.

Will: : Then, you’ve just created a three percent bounce back opportunity for anybody who buys on the false news. So, when we see that, it tends to autocorrect almost immediately.

Nico: Yeah. We keep circling back to the topic – No, no, no. This is good. We keep circling back to the topics that we jumped over when we got into jawboning. Circling back to Lebron James and hate speech, but also misinformation. And, I did promise that there were two California laws, one good and one bad. The other one that is bad involves misinformation. Aaron , do you wanna tell us a little bit about that? That’s surrounding Covid, right?

Aaron: Yeah. This is a California law that is targeting alleged misinformation spread by doctors about Covid-19. So, the law deems it unprofessional conduct for a doctor to disseminate disinformation or misinformation about Covid in the course of providing treatment or advice to a patient. And then, misinformation is in turn defined as information that’s contrary to the scientific consensus. So, two groups have filed lawsuits challenging this law under the First Amendment, and the ACLU of Northern California recently filed an amicus brief in support of one of those suits.

Nico: Yeah. I think there were two ACLU – not state chapters ‘cause they have a number in California.

Aaron: Oh, is that right? Okay.

Nico: I’m just trying to look at the reporting here to make sure I do have that right. But, yes. The ACLU – My printout cut out. Yeah. There were two ACLUs. ACLU of Southern California and then the ACLU of – I don’t know. My thing cut off. But, there were two.

Aaron: I think that’s the brief that I read. But, don’t state medical boards, in this case the medical board of California, already regulate standards of care? Like, if you’re a doctor, you can’t engage in standards of care that would be considered, perhaps, pseudoscience to try and treat your patients. They have a fiduciary responsibility as doctors to give their patients the best medical treatment possible.

Nico: Yeah. So, why do you need this? That was kinda the ACLU’s argument. This is either just superfluous or you are trying to reach something that goes beyond unprofessional conduct. What would typically be considered unprofessional conduct. And, some of the debates surrounding this law would suggest that that was the motivating fact for lawmakers is they didn’t like the doctors or other public intellectuals or people speaking publicly. Some of the things they were saying, they were critical of what was then the scientific consensus about Covid, but has since been maybe proven true?

When we first started the Covid-19 pandemic, remember that the Center for Disease Control was saying, “Masks, unless you’re wearing an N95, aren’t gonna do anything for you.” And then, they said, “Wait. No, they are. Everything should be wearing masks.” And now, they’re saying, “Wait. If you’re wearing a cloth mask, it really doesn’t do anything for you. You gotta be wearing an N95.” So, it’s been shifting constantly.

Aaron: Right. The debate over whether or not it was airborne when it seemed like there was plenty of evidence early on that you had airborne community transmission. And, there were a few months of putting our heads in the sand about that. And then, they came out and accepted that. And so, would you have gotten to that point as early as you did where you recognized that airborne community spread under this sort of regime or this scientific consensus is that it’s just large droplets that sit on surfaces? I don’t know.

Nico: Right. Remember everyone in the beginning was spraying bleach.

Aaron: Lysol. I had to stop my parents from doing that, like, a year later. Come on, guys.

Nico: I remember there was a time, too. I think it was Fauci who said that the vaccines would be dead ends for the virus, too. But now, we know even if you’re vaccinated, you can still transmit the virus. Maybe you don’t get as sick. But, all of this is to say that science is shifting, and that is okay. But, this law would seem to threaten the licensees of doctors who maybe are ahead of the scientific consensus or expressing their opinions as part of their doctor patient relationship.

Aaron: Yeah. And obviously, in the sense, this is intended to be limited to that doctor patient relationship, whatever. Any time that they’re providing medical advice. But, the line between scientist and doctor is often blurry, and I do worry about this sort of ossifying a given consensus. Setting it in place and preventing the scientific community from moving on from one set of understandings to another.

Nico: Yeah. So, I think we can get back to jawboning now. Now that we’ve taken our detour into the misinformation rabbit hole which Aaron , as we continue to do these podcasts, I think we will continue to find ourselves in that rabbit hole and have to climb out given how much of the misinformation and disinformation conversation dominates the free speech conversation right now.

Aaron: Yes.

Nico: Elon Musk was in the news, as well. Biden was asked during a press conference whether Elon Musk is a threat to national security, and in response to that, he said what?

Will: : “Uh, I’ll look into it. I don’t wanna prejudge the situation.” Frankly, to me, that felt less like a instance of jawboning. Biden didn’t demand anything from Musk in that context, and the whole episode was really prompted by a journalist saying, “Do you think this is a threat to national security?” And, sort of conflating Musk’s Saudi investment, perhaps, with Saudi influence on or control over the platform. I think they’ve had an investment in it for a long time, and that didn’t stop them from smuggling their own spies in, as well. So, I don’t think the investment is getting them a lot in terms of intelligence.

But, yeah. I wouldn’t consider that jawboning. I do sort of worry when journalists seem to prod elected officials into perhaps taking harsher, stronger stances, particularly around speech disinfo then they otherwise would or can constitutionally take.

Nico: Yeah. Well, there were a lot of people who were rubbed the wrong way about this. And, whether that’s a jawboning or free speech concern, I think they were rubbed the wrong way because it’s perhaps the most powerful man in the country who has had his run ins with Elon Musk before. He doesn’t invite Elon Musk to any of his conferences around electric vehicles because of Elon Musk’s stance on unions. He’s obviously a critic of the democratic party. And now, you’ve got journalists prodding him to say, “Hey, are you gonna look into this guy?” And, he’s saying, “Yeah, he should probably be looked into.” What that means, I don’t know.

Will: : No. And, the president’s bully pulpit is profound. So, I think any time he’s singling out private companies, it raises an eyebrow.

Nico: Right. Maybe it’s not jawboning, but I think there is a good argument that it’s irresponsible, if nothing else. And, especially in that context of Biden and Musk’s relationship, they’ve been trading insults and criticism for kind of a while now. What did Biden say to him earlier this year? “Lots of luck on your trip to the moon.” Sarcastically. And, when Musk acquired Twitter, Biden said something to the effect of, “He went out and purchased the platform that spews lies all across the world.”

Will: : Oh, geez. Biden said that?

Nico: Yeah. Biden said that. And, he has criticized him for being an anti-labor billionaire. So, it’s not unreasonable to think that maybe Biden standing up there and saying, “Yeah. Maybe we should look into his companies,” he wouldn’t have said that but for the fact that he just has this antipathy towards Musk, towards Musk’s criticism of the president, and/or the way that he manages Twitter and his companies. But, those things, of course, should have no effect on the likelihood that Musk or his companies face any sort of investigation.

Aaron: Yeah. But, there’s something separate from that. He owns Space X, which probably its biggest client is the United States government.

Will: : Well, I think that’s worth point to and dragging things back toward my paper for a moment because while the paper focuses on jawboning by members of Congress who can drag you in for hearings, they can pass bills, but that’s about it. Jawboning isn’t limited to legislators or threatened legislation. Legislative threats are often the most visible, but the government presiding over anti-trust cases at the state and federal level, dolling out fiber optic subsidies, picking partners for launches of all kinds of government stuff into space. Then, there’s always some lever that the government can pull, or individual government actors can often pull or influence when they want to apply –

Nico: Yeah. You often aren’t seeing that pressure. It’s the seen and unseen. To take from Frédéric Bastiat, it’s easier to see the stuff that’s happening. It’s harder to see the stuff that isn’t.

Will: : Well, and even when the decision isn’t influenced by stated antipathy, you can’t get rid of the appearance of corruption that it creates. When a large – it was called the Jedi Contract was awarded to Microsoft rather than Amazon for kind of military computing and Cloud storage, Amazon contested it and appealed the decision, alleging that Trump had tipped it to Microsoft because he’d said nasty things about Jeff Bezos and didn’t like him.

Now, I have no idea and no way of determining whether that’s true or not. There wasn’t any smoking gun there. But, we feel as though we live in a less lawful, perhaps, or rule bound society when yes, the president has kind of bullied or shouted at Bezos, and then his competitor gets this contract instead of him. And, I think that’s one of the sort of underappreciated harms of jawboning is it’s not just the potential for speech suppression. But, when it’s a normal enough tactic and we know it’s happening, it’s very hard for us to trust that particular decisions weren’t jawboned or aren’t implicated in jawboning efforts.

Nico: Yeah. And, as a matter of law, as you write in the paper, jawboning requires an explicit threat or challenge, right?

Will: : Tends to. Yes. And, this sort of social media jawboning is even more difficult to challenge than its analog cousins. There’s an older case involving a telephone operator and a sex line. The operator was threatened by a local prosecutor and bounced the sex line. Everyone can tell that that’s happened. You either get a dial tone or you don’t. It’s a one off, binary decision. But, platform content moderation includes all sorts of algorithmic promotion or demotion.

So, when you aren’t getting the followers you used to or your content isn’t seen the way that it used to be, you can worry that that might be the result of some government jawboning pushing the platform to treat your speech differently. But, proving that that has happened is so much harder than the sex hotline recognizing that it’s been disconnected after the telco was threatened.

Nico: Yeah. Can you talk a little bit about this one case involving Ivan the something? Do you know what I’m talking about?

Will: : Ivan the troll. Yes. So, he’s a fellow on Twitter who –

Nico: Or, was a fellow on Twitter?

Will: : I believe he’s back under a different account. As long as you aren’t sort of a public figure or carrying a big reputation with you, it’s actually very easy to evade bans on social media. You just can’t carry your stardom. If Alex Jones creates a new account, he could do that tomorrow. He just can’t announce that he’s Alex Jones or he’ll get banned again. But, yeah. There was a fellow in the 3D gun printing community named Ivan the troll who often prodded politicians and anti-gun activities about the futility of their efforts in light of 3D printing. And here, he was singled out in a letter written by Senator Menendez.

Nico: Yeah. Of New Jersey.

Will: : Yes. Asking that he be banned. That Twitter remove him. And, low and behold, shortly after this letter was set, he was. Now, this hasn’t been litigated, so it’s very hard to tell or prove beyond a reasonable doubt that –

Nico: But, the thing that’s interesting about that case is that Senator Bob Menendez engaged in misinformation, himself, right? In his letter to Twitter, he says that Ivan the troll’s sharing 3D gun printing instructions violated the law based on a recent court decision. And, he didn’t.

Will: : Yes. He tries to present what Ivan was doing as a potential ITAR violation.

Nico: What’s ITAR?

Will: : The International Traffic and Arms Regulation. A kind of defense regulation that was implemented in the mid-Cold War to prevent missile technologies from leaking to the Soviets. That sort of thing. And, there have been allegations. There’s been litigation around whether or not contemporary 3D printed gun files can be regulated by these ITAR rules. But, what Ivan was doing involved old designs for the AR15, which are already publicly available because they were released by the government years ago so many different private contractors could build guns for them.

So, yes. In an attempt to prod Twitter to remove this, he paints this as potentially illegal when it just clearly isn’t. And, that’s a fairly common jawboning tactic. You’ll often see politicians really stretch the law in an attempt to present some user speech or activity as illegal, and prompt the platform to remove it because you don’t want this illegal speech or conduct on your platform when if it were actually litigated, the speech would be protected by the First Amendment. I believe that Richard Blumenthal also really exampled that approach when talking about –

Nico: Yeah. Well, I wanna take one second –

Will: : Doctor Fauci. Sorry.

Nico: Yeah. Let’s go back to Fauci. But, I do wanna say one interesting thing about Twitter in that Ivan the troll case is they didn’t have a policy against sharing that sort of information on the platform. But, in suspending Ivan the troll, they informed Menendez, whose the last name of the account owner, that the account had been suspended for violating “Twitter’s longstanding policy that prohibits the promotion of weapons.”

However, the quoted policy governs advertising, and the policy’s page header reads, “This policy applies to Twitter’s paid advertising product.” It does not apply to user submitted content. Now, Twitter then later, in kind of like a post hoc justification, changed the policy to be more specific and to reach arguably the sort of speech that Ivan the troll was engaged in.

Will: : That’s almost even more concerning because it’s not just banning Ivan on a one off fashion. Menendez has sort of pushed them to change their policies. To adopt a new policy prohibiting a whole variety of speech.

Nico: Right. That would otherwise be protected by the First Amendment.

Will: : That is protected by the First Amendment, but now is no longer allowed on Twitter because they were browbeaten or jawboned.

Nico: Yeah. But, you were looking for what? It was a Blumenthal story?

Will: : Yes. I need to know my own paper a little bit better.

Nico: Well, it is like a 30 page paper.

Will: : Here we go. Steve Bannon.

Nico: Oh, yeah. I remember that.

Will: : You have Steve Bannon on his radio show back in 2020 complaining about Covid lockdowns and saying that if Trump gets another term, he ought to go medieval on these types. On the CDC folks. “If I were president, I’d put Anthony Fauci’s head on a pike for everybody to see.” And, a kinda nasty thought. But, he’s not president. He has no power to be beheading people and putting their heads on pikes. And, it’s all clearly presented as a hypothetical. If I would, I’d be Tudor England style. But, Blumenthal –

Nico: Yeah. Clearly hyperbole. Protected as not a true threat.

Will: : Yes.

Aaron: Definitely protected. Yeah.

Will: : But, Blumenthal presents this as illegal speech. He says to Mark Zuckerberg in the hearing, “How many times is Steve Bannon allowed to call for the murder of government officials before Facebook suspends him?” And then, he asked more specifically, “Will you commit to taking that account? Steve Bannon’s account?” So, he’s calling out a particular speaker, again, for speech that’s protected, even though he’s presenting it as unprotected. And finally, he pivots to threatening anti-trust action when Zuckerberg, showing some backbone here, refuses to remove or pledge to remove Bannon’s account for this.

Nico: Yeah. So, government officials can’t compel private companies to do what they, themselves, as government officials cannot do, right?

Will: : Exactly.

Nico: But, if someone wanted to challenge – Like, Steve Bannon wanted to sue, for example, in that case. Your paper makes it sound like the recourse would be limited because of Article 1 Section 6 of the Constitution, the speech and debate clause for members of Congress, right?

Will: : Indeed. It’s what makes this congressional jawboning sort of the most difficult to get at.

Nico: Yeah. Can you explain that clause, and what it means, and why it’s relevant?

Will: : So, there are good reasons to have it. You don’t want members of Congress to be sued for things they say in the course of debate.

Nico: Yeah. They essentially have immunity for what they say.

Will: : Yes. It grants them, essentially, total immunity for anything said in the course of a congressional debate or in relation to legislation.

Nico: Right.

Aaron: They can have open and frank discussions, and not have to worry about a barrage of lawsuits. Yeah.

Will: : Exactly. But, it means that unless they’re doing their jawboning at fundraising, perhaps, or maybe the sort of letter that Menendez sent, you essentially cannot challenge or litigate on their side the pressure that they’ve put on platforms.

Nico: So, when we think about the speech and debate clause, we’re talking about discussion and debate that’s happening during committee hearings or on the floor of the House of Representatives and the Senate. We’re not talking about courts, though it’s arguable that it doesn’t apply or reach to letters sent.

Will: : Yes. It can depend a little bit on the context of the letter. That’s been litigated in the past. There were these Golden Fleece Awards given out by William Proxmire in the 1980s. He was sued over one of these, which –

Nico: Golden Fleece?

Will: : Yes. He would single out academics, contractors, government employees who he felt were stealing money from the taxpayers, essentially. Who’d been given handouts that they didn’t deserve. And, he singled out someone’s, I believe, ape research at one point, and managed to defame them in his letter to constituents announcing this awards. So, there, because it was seen as kind of a constituent information letter and really, in a sense, a sort of campaigning material.

He was drawing attention to his accomplishments rather than debate. Then, he did not receive the protection of the speech or debate clause. However here, when you have a letter that is ostensibly requesting information from a platform which might be useful to your debate or legislation, it’s less clear-cut.

Nico: Oh, okay. Yeah.

Aaron: And so, I have a question about that. The speech and debate clause will provide immunity to the Congress member themselves. But, let’s say that what they say in the House or Senate chamber rises to the level of coercion so that a private platform might be considered a state act.

Will: : That’s where it gets really difficult.

Aaron: Yeah. And, I know it’s a very difficult argument to make in court. But, that argument’s still available, even if it’s jawboning –

Will: : It is available. But, I think the difficulty there is that all of your potential remedy is landing on the platform, and it essentially would be punishing them for having been jawboned or not resisting the government demand as fiercely as they should’ve.

Aaron: Yeah. So, the plaintiff in that sort of case would need the be the platforms, and they’re probably very reluctant.

Will: : Because again, there are all these levers that government officials can use.

Nico: Like the threat to take away Section 230, which provides them immunity for the content posted by users on their platforms. And, there have been a lot of talk, particularly from the Biden administration and very many prominent members of Congress that they wanna remove that. Why poke the bear with a lawsuit, right?

Will: : Yeah. Sometimes that, in particular, I think you’re hitting upon an important distinction here: Is it really jawboning? Because if they’re complaining about speech that say, they would like removed, and discussing potential legislative changes that might see that speech removed, then they aren’t really jawboning. The more orthogonal or oblique the threat is to the demand, the more likely it is to be jawboning.

Nico: So, say Facebook, unless you de-platform Steve Bannon and do this sort of thing voluntarily, we’re gonna pass Section 230 legislation that’ll take away your immunity.

Will: : Yeah. Or, even imagine the Liability for Steve Bannon Act.

Nico: That would almost be a bill of attainder.

Will: : It would. It would, but the whole thing would look must less like jawboning. However, when you say or when Blumenthal says, “Well, we’ll have to look into expanding anti-trust law because you won’t remove Steve Bannon,” well, even if you split Facebook up into Instagram, WhatsApp, and Big Blue, you’d still have Bannon on all of them. It wouldn’t compel either of those new parceled off pieces to remove him. So, that looks much more like jawboning ‘cause you’re just threatening something that will harm the platform, but won’t get you what you want.

Nico: Right. There’s actually – I wanna find this. When we talk about the other available avenues of communication on the platform, I believe you have a note about it in here. Biden and Jen Psaki, his then press secretary, were talking about how these platforms need to do more to eliminate mis or disinformation. Oh, yeah. Okay. So, in August 2021, President Biden accused Facebook of killing people by questioning the safety and efficacy of Coronavirus vaccine. Jen Psaki, Biden’s press secretary, insisted that Facebook needs to move more quickly to remove harmful and violent posting, and called from cross platform action, saying, “You shouldn’t be banned from one platform and not others for providing this information.” Which again, is another word for a fossil.

Will: : Yeah. And, I think that’s very concerning because it’s not just jawboning, but jawboning that subverts the vitality and value add of a free private internet. All of these platforms can have their own policies. What one platform does shouldn’t require other platforms to follow suit. And, you get a speech ecosystem where different speech that appeals to different people can find different homes. And, her demand here just sort of runs roughshod over that entire model, and instead demanding uniformity.

Nico: Yeah.

Aaron: And, by the way, after Biden said that, didn’t Twitter, or Facebook, or one of the platforms almost immediately remove or suspend the account of somebody whose considered a prominent spread of Covid misinformation? Or, am I thinking of a different –

Nico: No. I know who you’re talking about. Collin Beren?

Aaron: Berenson, right?

Nico: Yeah. I think it’s –

Aaron: Alex Berenson?

Nico: Alex Berenson. That’s right. Yeah.

Aaron: Who I think is now sued, right?

Nico: Yeah. He sued, and he got some discovery that did suggest there were communications behind the scenes where they asked Twitter or whatever platform, “Why is this guy still on the platform?” And, that’s another concern.

Will: : Well, and there are these fascinating Missouri and Louisiana lawsuits around CDC and DHS jawboning, which frankly started to bear fruit just as this was finalized and going to the printers, which is why it doesn’t make –

Nico: I did want to ask you about the Election Integrity Partnership, which I think is kind of where you’re going here.

Will: : But there, you can do more about the jawboning when you find it because it’s not coming from members of Congress. But –

Nico: It’s coming from agencies.

Will: : Yes. But, it’s occurring in private. So, absent that sort of AG discovery fishing expedition, it’s very hard to discover that it’s happened in the first place, unlike the congressional jawboning which occurs out in public in congressional hearings, but you can’t do as much about it. But, there’s nothing protecting the employees of administrative agencies here.

And, Cathy McMorris Rodgers has actually proposed an interesting bill in light of those discoveries to expand the Hatch Act to cover demands by agency employees that platforms remove speech. Which I think, looking at all of the options on the table here, it’s a small step, but it’s a good first step to take to see how that, especially on this agency administrative side, changes this sort of behavior. With Congress, the best we can do are internal congressional rules because they can set their own rules for themselves as a club, or simply electing representatives who have more respect for our speech.

Nico: Yeah. Well, this was a hell of a timely article there, Will. I imagine it came out or was finished ahead of the news about the Election Integrity Partnership, which I know Aaron , we’ve been talking a bit about in our rapid response meetings. For those who are listening who aren’t familiar with it, ahead of the 2020 election, a group called the Election Integrity Partnership was set up to monitor election related disinformation and misinformation.

It was established in partnership with the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency, and they sort of knew as an agency couldn’t lead this effort because it would raise – And, one of the partners says this. Serious First Amendment concerns. So, they set up a consortium of members including Stanford Internet Observatory, Washington University Center of an Informed Public, the Atlantic Council’s Digital Forensics Research Labs, and Graphika to run an essentially informal – or formal, I should say, ticketing system whereby they would investigate false rumors and misinformation about election related processes and procedures.

And, they claim they had a narrow focus on misinformation related to procedural interference, or participation interference, or fraud and de-legitimization efforts of election results. So, what was the outcome of this? During the investigative process, EIP, the Election Integrity Partnership discussed the tickets with social media platforms that were submitted to them, as well as their government and civil organization partners, and 79% of these tickets were created internally by EIP personnel. 16% of the tickets came from an independent nonprofit election integrity information sharing group.

But, five percent or a little bit less than five came from a division of the Department of State. The government. A little bit more concerning. There are also a small handful of tickets that came from the NAARONCP and the DNC, which raised this kind of specter of partisan work, but I guess they claim that they reached out to the RNC, too, about participating in the information sharing, and they didn’t respond to them.

Aaron: Yeah.

Will: : Did the platforms see where the tickets were coming from in all of these scenarios? ‘Cause that would seem sort of key there, to me, where if you don’t, then it’s almost healthy to have the government requests comingled with everyone else’s so the platform never knows that this is from the state.

Nico: Yeah. Sort of just blind grade it.

Will: : But if not, then it would be very interesting to see the difference in rates upon which they were acted upon.

Nico: Yeah. Well, there were 4,000 URLs that were shared with the social media platforms. The platforms investigated 75% of the items, and they took some sort of moderation action that’s removed, added fact check language, etc. And, 35% of the items flagged. But, as you can imagine, this was concerning to some folks. And, what was also interesting for us at FIREwhen we were discussing this, Aaron , as you’ll recall, all of the work that the Election Integrity Partnership was doing, a lot of it was written up. It was public information.

They had, like, a 200 and something page report called the Long Fused Misinformation in the 2020 Election. But, nobody was reporting on it until this conservative news outlet, Just the News, reported on it. So, we almost felt like are we being misinformed? We see all this primary source document and it seems concerning to us from the jawboning perspective, but nobody’s reporting on it. And still, really, nobody has reported on it.

Now that Republicans are taking over the House of Representatives, I think some have indicated they wanna hold hearings on this sort of thing. But, I almost felt a little gaslit. Should I not believe my own eyes?

Will: : Well, I think part of the difficult with stuff like that is that those in the know, those that Stanford Internet Observatory that were involved in this have been in the water so long that it seems anodyne, especially when the focus is on that election process. But, having looked at some of the materials that were forwarded on, and again, I don’t know if it was acted upon, but there were also just sort of dumb parodies of official state accounts in there. Which shouldn’t be expected to confuse anyone capable of casting a vote, I guess I would say.

Nico: But, some of the stuff they were forwarding along, you can call it jawboning or you can call it whatever. Information sharing I think is what they call it. Might have compromised the election or confused people. Things like telling people your polling place is in one place and it’s not. The government arguably has an interest in ensuring that that sort of information doesn’t get spread with the purpose of undermining the integrity of the election. But so, there’s difficult lines to draw, right?

Will: : I think the best way of approaching that difficult line drawing is for the government to offer its own counter speech publicly. Post all of those 4,000 examples that you’ve identified in real time as you’re identifying them and say, “From this URL posted on this server is saying this, and we’re considering it false.” Or, “We believe it to be false.” Because doing it out in public that way is the only real way of dealing with the appearance of corruption that is created when you have this private sort of off the record clearing house, even if it’s ostensibly just for process related misinformation.

Nico: Yeah. Screen transparency. Well guys, we’ve gone long on this one, and I’ve got a lunch meeting that I gotta make. But, it’s a fascinating conversation. I really appreciate you writing this article, Will. Again, for our listeners, it’s called Jawboning Against Speech: How Government Bullying Shapes the Rules of Social Media. I’ll have it linked in the show notes. Yeah. He’s got the fancier copy that’s bound over there. But, this topic isn’t going away, Will. I think you wrote an article at a very important time in the conversation, and I know we’ve been talking about these sorts of issues a lot, Aaron . And Aaron , congratulations on your promotion.

Aaron: Thank you.

Nico: Listeners are gonna be hearing a lot more from Aaron . But, Will, Aaron , thanks for coming on the show.

Aaron: Thank you.

Will: : Thank you for having me.

Nico: So, I forgot my outro for this podcast, but you can check out the show on Facebook, Twitter, Instagram. On Instagram, we’re @FreeSpeechTalk. On Facebook, we’re at Facebook.com/SoToSpeakPodcast. And, as listeners know, you can always email us feedback at sotospeak@thefire.org. We take a look at that and we respond where we can. Reviews help listeners or new potential listeners find the show. Please leave us a review on Apple Podcasts, Google Play, or wherever you get your podcasts. And, until next time, I thank you all for listening.