Censorship Lawsuit Against Disinformation Researchers Dismissed — After Succeeding At Actual Censorship

from the three-years-too-late dept

Trump-appointed Louisiana federal judge Terry Doughty has spent years bending over backwards trying to help some MAGA faithful manufacture nonsense claims about “censorship” for some grifters getting moderated on social media. As you’ll recall, he issued a bizarrely problematic ruling on July 4th three years ago, in which he said of perfectly reasonable, non-coercive communication between the Biden admin and social media companies “arguably involves the most massive attack against free speech in United States’ history.” He then banned all sorts of perfectly normal and reasonable communications, even between private parties. In order to do that, he literally fabricated quotes or took other quotes entirely out of context (for example, quoting a Biden official sending an expletive-laden email to Instagram officials as proof of coercion, leaving out the email was not about content moderation, but about Biden’s official Instagram account not allowing new followers).

The Fifth Circuit walked back nearly all of Judge Doughty’s injunction soon after, realizing how out of touch with reality it was. Eventually, after the Biden admin finally spoke up about all the false things in the lower court’s fact finding, the Supreme Court threw out the entire thing, noting that Judge Doughty appeared to push “clearly erroneous” facts into his ruling, and repeatedly finding “no evidence” of any actual censorship effort by the Biden administration.

But that was just one case of a bunch along these lines. Another one, filed soon after the Murthy case, also in Judge Doughty’s court, was brought by two of the same plaintiffs in that case, Jill Hines and Jim Hoft, and was filed by Stephen Miller’s “America First Legal.” Rather than being filed against actual government officials, this one directly targeted a variety of academic researchers and their institutions… because they studied disinformation.

The complaint is a complete joke and should have been thrown out the next day.

Instead, the case has gone on for over three years, and in the process many of the researchers have cut back on their research or moved to other jobs, and at least one academic institution, the Stanford Internet Observatory, effectively shut down because it became such a huge target of all this nonsense litigation.

First off: academic researchers are not the government and cannot censor anyone. They cannot violate someone’s First Amendment rights. Indeed, the lawsuit itself is an attack on their First Amendment rights, abusing the judicial process to create chilling effects and silence researchers for their research.

It took over three years (i.e., way longer than it should have), but even Judge Doughty can find no reason to keep that case going, and has dismissed it. Clearly chastised from the Supreme Court’s evisceration of his silly over-the-top ruling in Murthy, here, Doughty admits that (as SCOTUS found in the previous case) there’s no traceability to any suppression and therefore no standing. This is despite Hines and Hoft bending over backwards to pretend that actions taken by social media towards their accounts was somehow the fault of these researchers. But even Doughty can’t manufacture something out of complete nothing:

Here, no one placed anything on Facebook’s radar. Unlike the OEC’s flagging of posts to Twitter through the Portal in O’Handley, Plaintiffs do not provide any evidence that Hines’ post was flagged to Facebook. The subject matter of Hines’ post, political activism to end the public health emergency, is exactly the type of content that is out-of-scope of EIP’s election-related content monitoring. The Jira ticket data confirms the post was out-of-scope and counsel for Defendants, Elisabeth Theodore, testified in a sworn declaration that discovery didn’t reveal any documents of VP or EIP flagging posts from Hines to any social media platforms

Also, Doughty finally acknowledges what the Supreme Court told him in Murthy: that social media platforms have their own reasons and rules for moderating content that are unrelated to whatever a government official tells them (though, in this case, there isn’t even a government official, so none of this should even matter):

Facebook has had “longstanding content-moderation policies” in place for years. Id. at 50. Examples of its policies targeting speech it deems to be false or misleading include but are not limited to: factchecking and demoting posts containing misleading claims about elections beginning in 2016, removing health-related misinformation beginning in 2018, and taking action against users or posts that questioned the integrity of the 2020 Presidential election results. Id. at 50–51. Plaintiffs do not claim Facebook lacked independent incentives to moderate their content; in fact, Hines testified she received Facebook’s own content-policy justification in her notification.26 Absent evidence to the contrary, this notification demonstrates that Facebook acted pursuant to its own “independent incentives to moderate content” rather than Defendants’ coercion. Murthy, 603 U.S. at 61. Accordingly, Plaintiffs have failed to establish traceability from Facebook’s censorship actions to any “coercion” or “significant encouragement” by Defendants necessary under Murthy.

With Hoft and his nonsense-peddling site, Gateway Pundit, Judge Doughty now acknowledges what he refused to acknowledge in the other case: that just because some private researchers flag some content as possibly violating rules, it doesn’t mean that the platforms agree or take action based on those reports, since they review everything under their own rules.

Nineteen tickets from the EIP and the VP involved speech from Hoft’s website, The Gateway Pundit, or posts from The Gateway Pundit’s social-media accounts. On some of the tickets, Defendants made recommendations to social media platforms to remove posts from Hoft. However, none of the tickets reveal what actions the social media platforms took because of Defendants’ flags. Responses from social media platforms to Defendants’ tickets varied among the nineteen tickets. Sometimes the social media platform would simply respond that it was reviewing the content, sometimes it would respond saying the content didn’t violate community standards, sometimes the ticket stated the original post “was actioned” by the social media platform, and sometimes the ticket detailed that the social media platform had “already taken labeling action on the post.”

Defendants admit that some Jira tickets linking Hoft’s The Gateway Pundit were sent to social media platforms. However, Defendants maintain Hoft cannot establish standing as “he cannot plead or show that anyone at EIP or VP ever colluded with the federal government to pressure or coerce any social media platform to moderate his content.” Defendants concede that social media “[p]latforms sometimes took action after EIP sent them information.” Be that as it may, Defendants assert that discovery revealed the EIP’s files did not contain evidence of any communication with Twitter about The Gateway Pundit or Hoft in the lead-up to his account’s alleged suspension on February 6, 2021, “much less a coercive communication of the type that Murthy requires.” They maintain “discovery confirmed that social media companies responded to flagged posts pursuant to their pre-existing policies and independent judgment[,]” not due to coercion by any Defendants.

Doughty goes on to point out how little evidence there is that content flagged to platforms regarding the plaintiffs’ posts resulted in any action. I’m still perplexed as to why that even matters though. Again, the defendants were all private academics exercising their own First Amendment rights to flag content on a social media platforms, saying “hey, we think this violates your rules.” Even if Facebook, Twitter, TikTok and whoever else accepted every single one of those flags… it’s still not the government doing it and the case should have been over immediately.

Either way, here, Doughty still goes through the details and finds that Hines and Hoft simply can’t show any evidence that any of the moderation on their accounts was due to these researchers.

Incredibly, Judge Doughty initially ordered that the case be dismissed with prejudice (meaning it can’t be refiled in an amended form), but then quickly followed that up by issuing a second order saying it was dismissed without prejudice (with no explanation), so unfortunately this might not be over yet.

Two of those targeted by the lawsuit, leading disinformation researchers and experts, Kate Starbird and Renee DiResta, have written threads about the dismissal, noting the impact of the lawsuit on their research and their lives:

This entire lawsuit was a massive attack on the free speech of academic researchers, and on those grounds it succeeded. Many of the researchers named have been forced to move on, and one of the organizations targeted, the Stanford Internet Observatory, has shut down. The chilling effect worked.

And that’s not to mention that these academic researchers, who just wanted to understand the flows of disinformation had to spend the last three years of their lives fighting a clearly bogus lawsuit.

This was always a bad faith attack on academic research, brought by people who peddle disinformation and hate being called out on it. A good and functional judicial system would have (1) thrown out the case much more quickly, (2) forced the plaintiffs to pay the defendants’ legal fees, and (3) sanctioned them for filing frivolous, censorial lawsuits attacking the free speech of the academics.

This is why we need to keep fighting for better and stronger anti-SLAPP laws. This case is a perfect example of where those laws should apply, even outside of the defamation context.

Filed Under: content moderation, disinformation, disinformation research, free speech, jill hines, jim hoft, kate starbird, murthy v. missouri, renee diresta, stephen miller, terry doughty

Companies: facebook, stanford, twitter