Unwinding the Mess of Online Jawboning
Plus: John Adams on democracy, three-part harmonies, and artificial insemination.
The Supreme Court has agreed to hear Murthy v. Missouri, the vaunted social-media “jawboning” case. The justices will decide whether the Biden administration’s attempts to influence social-media platforms’ content-moderation decisions violated the First Amendment.
The 5th Circuit’s injunction against the government raises as many questions as it resolves — a fact lost on many, including some Supreme Court justices. In the media, the case has become hopelessly politicized, with partisans advancing whatever legal conclusions happen to benefit their team most.
But this case deserves careful, detail-oriented consideration. Its facts are many and complicated, and its conclusion will have great import for the future of free speech.
From a recent blogpost:
Solving complex problems requires measured and considered solutions. The 5th Circuit’s ruling has many merits but also some gaping flaws. First off, although the its opinion articulated clear and compelling broad-strokes standard of prohibited conduct, its application of that standard and analysis of the factual record seemed cursory and at times scattershot. Moreover, its injunction correctly identified much clearly violative conduct, but the reasoning became muddled in other instances, causing confusion and even potentially limiting the rights of private companies.
The high-running partisan emotions that animate politicians, media members, and even this case’s district judge have already distorted national coverage, but the Supreme Court must navigate these raging storms. Free-speech advocates should view skeptically all calls to stretch the law or in this case to gain an immediate “victory.” Murthy’s resolution will impact the future of online speech greatly, and liberty-minded observers understand well the havoc activist judicial decisions can cause. Setting nonsensical precedent will, in the long term, only cause further trouble.
This case illuminates a grave political and cultural problem facing the country. On certain topics, many politicians, bureaucrats, and tech executives believe that gatekeeper platforms ought to limit the dissemination of speech that contradicts (a generally left-wing) intellectual orthodoxy. Much of the suppressed speech had no basis in reality (see: Robert F. Kennedy, Jr.) but the First Amendment protects wild conspiracy theorizing as unequivocally as it protects sage wisdom.
Oddly, some portions of the 5th Circuit’s injunction could limit private actors’ rights rather than government abuses.
The [5th Circuit’s] determination that the CDC’s conduct constituted significant encouragement raises similar questions. The agency held information sessions with platforms and suggested content-moderation strategies. However, the platforms voluntarily “asked CDC officials to decide whether certain claims were misinformation” and “came to heavily rely on the CDC” (emphasis in original). In short, the platforms chose to accept official guidance credulously.
While such…behavior should appall any free society, the Supreme Court must consider the implications of the 5th Circuit’s finding regarding the CDC. Given that the platforms — particularly Facebook — often enthusiastically [solicited] the CDC’s input, the panel’s reasoning seems to suggest that some limit on a private business’s right to request and act on scientific or technical information from authorities may exist. Such a limitation of private liberty would almost certainly violate the First Amendment. It would be an odd outcome for a case that putatively champions free speech.
The judiciary’s difficulty applying its quite sound legal standard suggests that a purely judicial response to government pressure campaigns cannot suffice. When the Constitution does not ban a given government abuse, Congress should enact a law to do so. First off, Congress should require officials to document — and whenever feasible, to publicize — their speech-related conversations with platforms. It should attempt, moreover, to craft sensible restrictions largely to prevent officials from interfering with content moderation per se, although this approach presents many difficulties.
The piece contains much, much more.
Some Wisdom
Winston Churchill famously said something like, “Democracy is the worst form of government, except for all the others.” (The quote’s exact wording varies depending on the source.)
John Adams, in a 1814 letter to John Taylor, expressed similar sentiments.
In your fifth page You Say “Mr. Adams calls our Attention to hundreds of wise and virtuous Patricians, mangled and bleeding Victims of popular Fury.” and gravely counts up several Victims of democratic Rage as proofs that Democracy is more pernicious than Monarchy or Aristocracy.” Is this fair, sir? Do you deny any one of my Facts? I do not say that Democracy has been more pernicious, on the whole, and in the long run, than Monarchy or Aristocracy. Democracy has never been and never can be so durable as Aristocracy or Monarchy. But while it lasts it is more bloody than either.
Adams offers a clear-eyed understanding of humanity's shortcomings, which, absent virtue and a well-formed constitution, wreak havoc no matter the form of government.
It is in vain to Say that Democracy is less vain, less proud, less selfish, less ambitious or less avaricious than Aristocracy or Monarchy. It is not true in Fact and no where appears in history. Those Passions are the same in all Men under all forms of Simple Government, and when unchecked, produce the same Effects of Fraud Violence and Cruelty. When clear Prospects are opened before Vanity, Pride, Avarice or Ambition, for their easy gratification, it is hard for the most considerate Phylosophers and the most conscientious Moralists to resist the temptation. Individuals have conquered themselves, Nations and large Bodies of Men, never.
Some Beauty
Despite the better judgement of this “news”letter’s editorial board, Irish folk music makes an appearance for the third consecutive week.
This week’s selection comes from a non-Irish artist. Boygenius — a super group consisting of Julien Baker, Phoebe Bridgers, and Lucy Dacus — arranges some of the most beautiful, interesting, and at-times contrapuntal harmonies in modern pop music.
The trio recently covered the Irish folk song “The Parting Glass.”
Many, though not all, pop artists who cover Irish folk music butcher it. Boygenius exceeded expectations.
Some Humor
From P. J. O’Rourke’s Parliament of Whores, regarding the federal government’s ag policy:
The government began formulating agricultural policy in 1794, when the residents of western Pennsylvania started the Whiskey Rebellion in response to an excise tax on corn liquor. The agricultural policy formulated in 1794 was to shoot farmers.
My old friend George, who'd done all sorts of madcap stuff such as join the marines, go to Vietnam, learn to fly a stunt plane and get married, decided to raise cattle. To that end George bought a farm in New Hampshire, along with some cows (the technical term for female cattle), and now it was time for the cattle to fructify.
Getting a cow in a family way is not accomplished, as I would have thought, with a bull and some Barry White tapes in a heart-shaped stall. It's like teenage pregnancy, only more so. The bull isn't even around to get the cow knocked-up. Instead, there's a liquid-nitrogen Thermos bottle full of frozen bull sperm (let's not even think about how they get that) and a device resembling a cross between a gigantic hypodermic needle and the douche nozzle of the gods.
George got a real farmer to come by and actually do the honors. So while I held the cow's head and George held the cow's middle, the real farmer, Pete, took the bovine marital aid and inserted it into a very personal and private place of the cow's. Then Pete squirted liquid dish soap on himself and inserted his right arm into an even more personal and private place of the cow's, all the way up to the elbow. Pete did this not in order to have Robert Mapplethorpe take his photograph, but in order to grasp the inseminator tube through the intestine wall and guide the tube into the mouth of the uterus. It's an alarming thing to watch, and I'm glad to say I didn't watch it because I was at the cow's other end. But I'll tell you this, I will never forget the look on that cow's face.
The same look — and for the same reason — appeared on my own face when I began reading the 1990 omnibus farm bill. Every five years or so the U.S. Congress votes on a package of agricultural legislation that does to the taxpayer what Pete and George and I did to the cow.
Sundry Links, &c.
Blog: “GOP Senators Support Environmentalist Protectionism”
The Blaze: “Foolish subsidies won’t make Democrats’ EV dreams come true”
290,000 people came out to the National Mall to support Israel.