Prediction: Murtha will prevail in Murtha v Missouri
Paging Dr. Schellenberger... Heads up, Taibbi, Weiss, et al.!
Michael Schellenberger of Public, Matt Taibbi of Racket, and Bari Weiss of The Free Press landed what should go down as the scoop of the decade when they reported the Twitter Files from material made available to them by Elon Musk, the then-new owner of what was formerly known as Twitter. (Of course, now known as “X”.)
Since then, we have seen a mountain of evidence characterized as “censorship.” I am purposely being coy about this description if only to provoke a combination of curiosity and self-awareness. There is an angle to this that appears entirely missed—both in independent media coverage and in the legal reasoning of the cases being brought against the Biden administration.
I provide consultation and expert witness services in cybersecurity and, more generally, in information technology. I am not a lawyer. However, I grew up in a family of lawyers and police officers, taught undergraduate critical thinking, and made my career in information technology. Below, I will do a deep dive into various sources, including the transcript of oral arguments before the Supreme Court in Murtha v Missouri and the lawsuit just filed by Robert F. Kennedy and others. (Full disclosure: I am volunteering for Mr. Kennedy in San Diego County.)
But first, the TL; DR version:
I believe the government in Murtha v. Missouri will prevail. There will be a lot of contretemps along the lines of “How could they?” We’ll hear a lot of hyperbole about the end of the First Amendment.
But the problem will not be with the Court. The original Missouri v. Biden lawsuit was litigated from a precedent captioned as Bantam Books, Inc. v. Sullivan (1963). This case revolves around whether or not the government is engaging in coercion concerning publishers and distributors. In the recent oral arguments at SCOTUS, a lot was made of the aggressive, angry, and vulgar nature of government personnel communicating with platforms like Facebook and Twitter (now X). The matter involves more, however, than how the government interfaces with private businesses. 47 U.S.C. § 230 (the infamous “Section 230”) protects social media from liability arising from content posted by their users. It seems Justices like Samuel Alito want to subject the government to increased scrutiny regarding social media because choosing not to do the government’s bidding can be perceived as a risk to their Section 230 protections - even if no actual threat is made concerning it.
There is another precedent, however. Lamont v. Postmaster General (1965). Rather than turning on coercive behavior, this case turns on requiring the reader/hearer to bear an unconstitutional burden before certain kinds of publications (i.e., those considered by the government to be “communist propaganda”). The essence of the distinction between Bantam Books and Lamont is between the right of the speaker/writer and the right of the hearer/reader. We’ll see below that the fact pattern in Missouri v. Biden does not fit the precedent in Bantam Books. (The facts were tried by the District Court in Missouri v. Biden. The District Court’s application of the law (its ruling) is being appealed in the name of the U.S. Surgeon General - Vivek Murtha - as Murtha v. Missouri.) This fact pattern fits the precedent in Lamont far better than in Bantam Books.
Buckle up, boys and girls; this will be a long one.
The Internet is the ultimate library, and social media and search engines are the ultimate card catalogs.
Let’s go back in time before the digital age. Imagine for a moment you write a book. A publisher shares your perspective and publishes it. The government thinks your ideas are wrong and believes (even in good faith) that those convinced by your argument might suffer harm. But they don’t “ban” your book from the shelves of bookstores or libraries. Instead, they communicate their perspective with non-governmental organizations (NGOs) - many of which have contracts with, or grants from, the government. As a result, privately organized lobbying emerges and is directed toward bookstores and libraries. Private businesses like bookstores perceive a threat to their brand reputation and avoid the problem by not carrying your book.
Local libraries, however, don't have a “brand” to protect, and the public is rightly sensitive to efforts to ban books. So, the NGO takes a more subtle approach. They pressure libraries to remove the index card for your book from the Author and Title Card Catalogs. Your book can be on the shelf, but by causing the catalog index cards to be removed, a significant amount of “friction” has been deliberately created between the public as a reader and you as a writer. (The Kennedy lawsuit makes mention of Meta admitting to creating such “friction.”)
What has happened here? Whose rights have been invaded? Compare these precedents: Bantam Books, Inc. v. Sullivan (1963) and Lamont v. Postmaster General (1965). In Bantam Books, a Rhode Island commission published a list of books it felt contained obscene materials. Its communication with distributors claimed it had a “duty to recommend prosecution of purveyors of obscenity.” Four publishers sued on Fourteenth Amendment grounds and prevailed in their claim that the commission’s work amounted to unconstitutional coercion. The Missouri case will stand or fall on whether the Biden administration’s actions involved similar coercion.
“Communist Propaganda” and “Disinformation”
In contrast, procedures took effect on March 15, 1965, based on Section 305(a) of the Postal Service and Federal Employees Salary Act of 1962. These procedures required the Postmaster General to hold mail deemed “communist propaganda.” A postcard was sent to the addressee, who was required to check a box indicating they wanted to receive the publication. If the postcard was not returned within 20 days, it was presumed the addressee did not want to receive the publication or any others deemed “communist propaganda.” The Court ruled that “...the Act, as construed and applied, is unconstitutional, since it imposes on the addressee an affirmative obligation which amounts to an unconstitutional limitation of his rights under the First Amendment.”
In this decision, Justice William O. Douglas articulates what is now summarized as the "right to receive publications" in this paragraph - presented here in full for appropriate context:
“It is true that the First Amendment contains no specific guarantee of access to publications. However, the protection of the Bill of Rights goes beyond the specific guarantees to protect from congressional abridgment those equally fundamental personal rights necessary to make the express guarantees fully meaningful. See, e.g., Bolling v. Sharpe, 347 U.S. 497; NAACP v. Alabama, 357 U.S. 449; Kent v. Dulles, 357 U.S. 116; Aptheker v. Secretary of State, 378 U.S. 500. I think the right to receive publications is such a fundamental right. The dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them. It would be a barren marketplace of ideas that had only sellers and no buyers.”
When reading the record of Missouri v Biden (now Murtha v Missouri), if we transport the "digital" fact pattern back to the time before the digital age when publications were on store shelves, in the library, or sent by “snail mail,” we see clearly that the First Amendment right being invaded is more properly the “right to receive publications” litigated in Lamont. However, the ability to recognize this depends on the legal profession’s understanding of the path between an author and a reader in the digital age.
Alex Berenson and Pre-Elon Twitter
California Civil Code § 2100 - known as its “Common Carrier Law” - has been widely interpreted as including companies in carrying messages. In Alex Berenson v Twitter, Berenson’s third claim asserts a violation of California’s Common Carrier Law. While the lawsuit was settled out of court, Berenson insisted in pursuing the matter into discovery. In a subsequent lawsuit against the Biden administration, he shows a graphic of an email obtained during discovery. As I will explain below, one sentence is profoundly jam-packed with potentially explosive information.
Independent media (that means you, Taibbi, Weiss, Schellenberger, & others) just needs to know what questions to ask.
“[] Andy Slavitt suggested they had seen data viz that had showed [Berenson] was the epicenter of disinfo that radiated outward to the persuadable public.”
Let’s unpack this little gem:
1) Exactly what is a “data viz?” This is shorthand for “data visualization.” This is a graphical representation of “graph data.” In contrast to “tables” of rows and columns, this approach to data breaks everything into subjects/objects (nouns or “nodes”) and interactions between them (predicates or “edges”). Nodes are circles joined to each other with lines (edges). Descriptions are modeled as labels that can attach both to nodes (adjectives) and edges (adverbs).
2) “Berenson” is a noun - a person, place, or thing. This makes him a “node” in the “data viz.” That he is the “epicenter of disinfo” tells us two different things: First, in a data visualization such as this, they will show nodes in the middle (the “epicenter”). Second, someone has “labeled” Berenson (and others) as a source of “disinfo[rmation].” There is an important distinction here: Misinformation simply means someone is mistaken - they are misinformed. Disinformation implies intent. The person is not simply mistaken; they are intentionally spreading falsehoods with malicious intent to deceive.
3) “Radiated outward...” Graphically, this shows one or more nodes in a circle’s (epi)center. There are other nodes (see #4 below) to which the nodes in the “epicenter” are connected with “edges,” which represent actions (predicates) like reading and commenting.
4) “...outward to the persuadable public.” Well. We know the “public” are persons. That means they are nodes in the data viz. But how, exactly, does the Biden administration know they are “persuadable?”
Cambridge Analytica, Brexit, Trump, and “Psychographics”
By now, it is commonly known that if a Big Tech product is free, you, as the user, are the product. But what does this really mean? You - as in your consumer interests? Sure... that’s comfortable... It squares with our expectations. Companies want to know what kinds of products we’re interested in so they can target their ads. Who knew?
But what if this isn’t about your interests as a consumer? What if this is about an emotional dossier where you are profiled according to the following five traits - OCEAN: Openness, Conscientiousness, Extroversion, Agreeableness, and Neuroticism. What if these traits are broad domains of human behavior and account for differences in personality and decision-making?
The context for this part of the picture is narrated in a Netflix documentary titled The Great Hack. It tells the story of Brittany Kaiser, an idealistic Progressive who goes to work for the Obama campaign’s digital outreach team. She was later hired by Cambridge Analytica to work on the Brexit campaign, then later for Texas Senator Ted Cruz, and ultimately, for Donald Trump's 2016 campaign. It is told in even greater depth by Kaiser in her book Targeted. Chapter 13 is easily the most important part of the book. There, the reader will learn how “psychographics” was turned into a political campaign weapon.
Consider how “Openness” is described in the OCEAN model:
“Openness to Experience is characterized by imagination, intellectual curiosity, an appreciation for art and beauty, flexibility, tolerance for ambiguity, non-conformity, and a broad range of interests. Communication with individuals high in Openness to Experience should involve being open to new ideas, encouraging intellectual discussions, providing opportunities for learning, embracing creativity and innovation, being flexible and adaptable, sharing diverse perspectives, appreciating aesthetics, and respecting their need for personal space.”
Now read the email from the Berenson case again (emphases added):
“[] Andy Slavitt suggested they had seen data viz that had showed [Berenson] was the epicenter of disinfo that radiated outward to the persuadable public.”
A member of the “public” interacting with Berenson (and others) will need to be labeled as “persuadable” for that larger public to be segmented for this kind of “data viz.” Exactly how was this segmentation done? Was some firm contracted by the government to “scrape” social media to feed the psychographic analytics needed for this sort of segmentation? Was a successor firm to Cambridge Analytica, or were any of the people known to have been involved tapped to provide the needed historical information? We should know enough from The Great Hack and Kaiser’s book to see why these questions must be asked. (Ahem... Paging Dr. Schellenberger...)
Back to Lamont Vice Bantam Books
Reprising: The Bantam Books case revolves around what amounts to coercion by the government. The Lamont case revolves around “labeling” publications as “communist propaganda” and then creating friction between the publisher and the reader. While the record in Murtha v. Missouri is haunting, in the oral arguments before SCOTUS, we can see how tenuous the link is between aggressive speech, anger, and vulgarity on the one hand and “coercion” on the other. SCOTUS will look for some reasonably objective test or standard lower courts can apply to determine when government “requests” cross the line into coercion. Murtha v. Missouri has left the Justices wallowing in a shallow pool of subjectivity. The volume of instances in the record does not change that unfortunate reality.
In contrast, in Lamont v. Postmaster General, the implementation of a law passed by Congress “...impose[d] on the addressee an affirmative obligation which amounts to an unconstitutional limitation of his rights under the First Amendment.” The rights being spoken of here are not the speaker’s rights but those enjoyed by the “addressee”—the recipient of the publication. The First Amendment right invaded here is the right of the hearer.
The whole point of the “data viz” in the Berenson case reveals a clear effort to block the path between him as a writer and the public as readers. This came in the blunt form of canceling his Twitter account. It can also come by suppressing how posts are made visible to the public based on a government characterization (i.e., “disinformation”). This is not a shallow pool of subjectivity. Rather, it is an observable behavior by the government or private organizations acting at the government’s behest. These actions are intended to interrupt the path between a writer and his readers. They are easily understood as the digital age’s version of invading the public’s right to receive publications.
The facts in Missouri v. Biden are easily understood as the digital age’s version of invading the public’s right to receive publications.
If litigated from the Lamont precedent, the Justices should have no problem devising a suitable test. If the government's request (direct or indirect) is to label content (a “post” is also a noun, and as such a node in a data visualization) such that its availability to the public is inhibited in a manner it would not have been without the government’s request, the government is invading the public’s right to receive publications. A straightforward analogy can be drawn by having the 1960's Postmaster General arbitrarily “label” a publication “communist propaganda” and asking today’s tech platform to “label” a social media post “disinformation.”
Missouri v. Biden and the body of reporting done on the Twitter Files (and now what are being called the Facebook Files) show that these requests include the government flagging posts as potentially violating a platform’s Terms of Service. It has also recommended changes to the Terms of Service to turn an otherwise compliant post into a non-compliant one. The Biden administration characterizes this as using the “bully pulpit.” But that would involve asking for the administration’s message to be carried alongside messages with which the administration disagrees. As long as such “bully pulpit” requests do not cross the Bantam Books line into coercion, no First Amendment right is being invaded.
However, that is not the facts of the case, as they were found at trial in Missouri v. Biden. The administration went beyond the bully pulpit in seeking to “label” content it disagreed with so that the public would not be able to engage with it. Any governmental effort to attach a label to privately created content to suppress the public’s ability to engage with it can easily be argued to be pretextual to inhibiting the public’s right to engage with the speaker's ideas. As such, it should be considered an unconstitutional infringement of the “right to receive publications” under Lamont v. Postmaster General.
Unfortunately, that wasn’t the argument brought before SCOTUS in Murtha v. Missouri.