Authored by Matt Taibbi vi Racket News,
One of the more brutal legal self-owns you’ll see took place in yesterday’s hearing in the Missouri v. Biden Internet censorship case, in the 5th Circuit Court of Appeals in New Orleans. For more about the hearing generally, click here, but one moment stood out.
Administration lawyer Daniel Bentele Hahs Tenny was under fire all day from judges who appeared unconvinced — or at least in a mood to debate the point — that statements from White House officials about content like, “[I’m] wondering if we can get moving on the process of having it removed ASAP” do not constitute coercion. At one point Tenny was among other things saying the state couldn’t be coercing social media companies if, for instance, the FBI only succeeded in getting material taken down 50% of the time. “The idea that social media companies had to bend to the FBI’s will, when half the time they didn’t, just doesn’t support those theories.”
This inspired the following exchange between Tenny and Judge Don Willett:
WILLETT: Does coercion necessarily entail a threat, either overt or covert? Isn’t a directive itself enough to constitute unconstitutional coercion, absent an “or else” consequence?
TENNY: I guess I’m not sure what a directive means without a threat like—
WILLETT: “Do this, why haven’t you done this? Get this done. F-bomb do this.”
Willet was referring to a series of emails that included a July 15, 2021 communication from White House official Rob Flaherty reading, “Are you guys fucking serious? I want an answer on what happened here and I want it today”:
Tenny tried to defuse Willett’s question quickly. “I mean, so the, the f-bomb thing, to be clear, is not about content moderation at all… No, I don’t think that’s coercion.”
Judge Jennifer Elrod frowned. “It wasn’t about taking something down?”
“No,” said Tenny. “It was about the president’s Instagram account and something that, um, happened to it.”
Elrod kept frowning. Tenny was fortunate no one pressed him about what exactly “happened” to Joe Biden’s Instagram account. It was about censorship — of Joe Biden, whose administration indirectly asked for the treatment!
In the spring of 2021, officials from a variety of federal agencies began reaching out to firms like Facebook, asking them to explain their content moderation policies with respect to, among other things, Covid-19. Facebook responded by proposing a series of algorithmic fixes. One ended up being a review tool that de-amplified accounts that posted too much about vaccine-related topics.
This is the subtext of the “F-bomb” sequence. The POTUS Instagram account was experiencing slow growth. Administration officials wrote demanding to know why. They were told that “from what we understand it was a technical issue that we can’t get into but it’s now resolved.” At this point Flaherty wrote the “Are you fucking serious?” email, which led to a response from Facebook that the problem was a “bug in our recommendation surface.” Further queries led to a Facebook official whose name has been redacted writing to explain.
As you know, we take aggressive steps to reduce the spread of vaccine hesitancy and vaccine misinformation on our platform, and we deploy technology to do so… For two weeks in April… this measure was impacted by over-enforcement on a signal we used - accounts that were posting far above normal vaccine-related content.
This episode showed one of the insanities of “anti-disinformtion.” In designing its Covid algorithm, Facebook identified posts with “risks,” and listed several categories, including reports of health care workers refusing the vaccine, posts about alleged vaccine-related deaths, and news and reports of severe vaccine side effects. In correspondence from Facebook to the CDC just days after Biden’s inauguration, Facebook explained that such posts included some news of bad side effects, but also included “some content meant to educate the public (including from the CDC).”
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