I wanted to point out several factual issues with this ruling, some of which I mentioned yesterday on another post. For starters, the judge severely misquotes an email:
>However, various emails show Plaintiffs are likely to succeed on the merits through evidence that the motivation of the NIAID Defendants was a “take down” of protected free speech. Dr. Francis Collins, in an email to Dr. Fauci told Fauci there needed to be a “quick and devastating take down” of the GBD—the result was exactly that.
In reality, the email[0] actually said this:
>There needs to be a quick and devastating published takedown of its premises. I don't see anything like that online yet - is it underway?
Notice how he removed the word "published" from his quote, making it seem like an instruction to a social media company rather than a published rebuttal. He also mischaracterizes a WH aide's email to FB, claiming that the aid accused FB "of causing 'political violence' by failing to censor false COVID-19 claims", when in actuality he was referring to a WSJ article that detailed actual calls to violence on the platform[1].
He also characterizes Twitter's removal of an account with the handle "AnthonyFauci_" as government-directed censorship of parody:
> NIAID and NIH staff sent several messages to social-media platforms asking them to remove content lampooning or criticizing Dr. Fauci . . . An HHS official then asked Twitter if it could “block” similar parody accounts...
But in reality, the contact was initiated by Twitter, who asked the CDC whether the account was real or fake[2]. Why were they confused about this? Because the account wasn't a parody at all; its name was "Dr. Anthony Fauci", its bio was "Director of the National Institute of Allergy and Infectious Diseases #NIAID", and there was nothing parodic about its tweets[3][4], which purported to be giving out factual info; it was a straight up impersonation.
On the subject of Dr. Fauci, there's a particularly egregious section where the judge accuses him and other members of NIAID of 'censoring' the so-called Great Barrington Declaration. To support his claim that Reddit and Google censored the GBD at the government's behest, he cites an article[5] that describes how Reddit mods (not Reddit the company!) took down links to the GBD, and complains about the top Google search results for the GBD were all disparaging it, without providing any evidence that either NIAID instructed Google to change the results, or even any evidence that Google purposely changed the results at all. His accusation is that Fauci made public statements 'in collusion' with another employee
>Dr. Fauci testified “it’s possible that” he coordinated with Dr. Collins on his public statements attacking the GBD.
Disparaging the GBD, and that Google and these individual mods in turn took independent action against it. So I guess PSAs are censorship?
Needless to say, there's a lot of issues with this injunction, and from just the small sections I've looked at, it doesn't seem like the judge has applied the necessary rigor to justify a nationwide injunction restricting the government from nearly all contact with various companies and nonprofits. I kind of wish Ars Technics had done some of this scrutiny (which really didn't take that long) before publishing this article.
This new crop of politicians in robes seem to be worse than the rest. I’d expect this kind of malpractice from Fox News Channel, not the federal judiciary.
A reminder to others that Trump appointed HUNDREDS of hand picked judges all over, not just the supreme court. All while calling legal challenges to his actual crimes "Legislating from the bench"
Is it? Reading over pages 4 and 5 of the injunction[0], based on points 4, 5, 9, and 10, it seems government employees are now barred in any way from discussing any social media content or company policy protected by the 1st amendment with the companies or nonprofits.
> (4) emailing, calling, sending letters, texting, or engaging in any communication of any kind with social-media companies urging, encouraging, pressuring, or inducing in any manner for removal, deletion, suppression, or reduction of content containing protected free speech;
> (5) collaborating, coordinating, partnering, switchboarding, and/or jointly working with the Election Integrity Partnership, the Virality Project, the Stanford Internet Observatory, or any like project or group for the purpose of urging, encouraging, pressuring, or inducing in any manner removal, deletion, suppression, or reduction of content posted with social-media companies containing protected free speech;
> (9) requesting content reports from social-media companies detailing actions taken to remove, delete, suppress, or reduce content containing protected free speech; and
> (10) notifying social-media companies to Be on The Lookout (“BOLO”) for postings containing protected free speech.
As you'll see from my above post, the judge has a curious idea of what 'inducing' censorship entails (among other things: making public statements that might be heard by Reddit mods, who in turn take it upon themselves to remove links to content).
> Reading over pages 4 and 5 of the injunction[0], it seems government employees are now barred in any way from discussing any social media content or company policy that isn't explicitly illegal with social media
Whether or not any involved content is “explicitly illegal”, they are explicitly permitted to discuss that content so long as it is related to threats to public safety and security of the US, content that may be misleading voters on voting processes, or about content that isn’t Constitutionally protected, among other exceptions; see the explicit exceptions on pp. 5-6. As framed, the exceptions are cumulative and trump the restrictions, so, e.g., a BOLO for content whose context was efforts to protect the public safety and security of the US would permissible under the injunction even if the content was itself Constitutionally protected free speech.
Lying about an election to mislead voters on election processes (i.e. time, place, and manner) is illegal.[0] "Threats that threaten the public safety or security of the United States" are also illegal. The judge lists several other things that are also illegal, such as malicious cyber activity and criminal conspiracy, so it doesn't seem like that section is intended to contains exceptions to section 8.
> Lying about an election to mislead voters is illegal
The big exception is, of course, the last, which covers any content that isn’t protected by the Free Speech Clause whether or not it is expressly illegal.
Ah, you're right; I think most of that speech (fighting words, obscenity, etc.) is already illegal anyway, but in case there's any that isn't, I will edit that to say speech that's "protected by the 1st amendment".
>However, various emails show Plaintiffs are likely to succeed on the merits through evidence that the motivation of the NIAID Defendants was a “take down” of protected free speech. Dr. Francis Collins, in an email to Dr. Fauci told Fauci there needed to be a “quick and devastating take down” of the GBD—the result was exactly that.
In reality, the email[0] actually said this:
>There needs to be a quick and devastating published takedown of its premises. I don't see anything like that online yet - is it underway?
Notice how he removed the word "published" from his quote, making it seem like an instruction to a social media company rather than a published rebuttal. He also mischaracterizes a WH aide's email to FB, claiming that the aid accused FB "of causing 'political violence' by failing to censor false COVID-19 claims", when in actuality he was referring to a WSJ article that detailed actual calls to violence on the platform[1].
He also characterizes Twitter's removal of an account with the handle "AnthonyFauci_" as government-directed censorship of parody:
> NIAID and NIH staff sent several messages to social-media platforms asking them to remove content lampooning or criticizing Dr. Fauci . . . An HHS official then asked Twitter if it could “block” similar parody accounts...
But in reality, the contact was initiated by Twitter, who asked the CDC whether the account was real or fake[2]. Why were they confused about this? Because the account wasn't a parody at all; its name was "Dr. Anthony Fauci", its bio was "Director of the National Institute of Allergy and Infectious Diseases #NIAID", and there was nothing parodic about its tweets[3][4], which purported to be giving out factual info; it was a straight up impersonation.
On the subject of Dr. Fauci, there's a particularly egregious section where the judge accuses him and other members of NIAID of 'censoring' the so-called Great Barrington Declaration. To support his claim that Reddit and Google censored the GBD at the government's behest, he cites an article[5] that describes how Reddit mods (not Reddit the company!) took down links to the GBD, and complains about the top Google search results for the GBD were all disparaging it, without providing any evidence that either NIAID instructed Google to change the results, or even any evidence that Google purposely changed the results at all. His accusation is that Fauci made public statements 'in collusion' with another employee
>Dr. Fauci testified “it’s possible that” he coordinated with Dr. Collins on his public statements attacking the GBD.
Disparaging the GBD, and that Google and these individual mods in turn took independent action against it. So I guess PSAs are censorship?
Needless to say, there's a lot of issues with this injunction, and from just the small sections I've looked at, it doesn't seem like the judge has applied the necessary rigor to justify a nationwide injunction restricting the government from nearly all contact with various companies and nonprofits. I kind of wish Ars Technics had done some of this scrutiny (which really didn't take that long) before publishing this article.
[0]https://i.dailymail.co.uk/1s/2021/12/18/23/51969841-10324873...
[1]https://news.ycombinator.com/context?id=36619117
[2]https://storage.courtlistener.com/recap/gov.uscourts.lawd.18...
[3]https://twitter.com/merrymanlab/status/1239321484297998336
[4]http://web.archive.org/web/20200313170022/https://twitter.co...
[5]https://storage.courtlistener.com/recap/gov.uscourts.lawd.18...