Month: September 2022

On July 16, 2021, the day that Joe Biden accused Facebook of “killing people” by failing to suppress misinformation about COVID-19 vaccines, a senior executive at the social media platform’s parent company emailed Surgeon General Vivek Murthy in an effort to assuage the president’s anger. “Reaching out after what has transpired over the past few days following the publication of the misinformation advisory, and culminating today in the President’s remarks about us,” the Meta executive wrote. “I know our teams met today to better understand the scope of what the White House expects from us on misinformation going forward.”

Murthy had just published an advisory in which he demanded a “whole-of-society” effort to combat the “urgent threat to public health” posed by “health misinformation,” possibly including “appropriate legal and regulatory measures.” Biden’s homicide charge came the next day, and Meta was keen to address the president’s concerns by cracking down on speech that offended him.

The email, which was recently disclosed during discovery in a federal lawsuit that Louisiana Attorney General Jeff Landry and Missouri Attorney General Eric Schmitt filed in May, vividly illustrates how the Biden administration engages in censorship by proxy, pressuring social media platforms to implement speech restrictions that would be flagrantly unconstitutional if the government tried to impose them directly. Landry and Schmitt, both Republicans, argue that such pressure violates the First Amendment.

“Having threatened and cajoled social-media platforms for years to censor viewpoints and speakers disfavored by the Left,” the lawsuit says, “senior government officials in the Executive Branch have moved into a phase of open collusion with social-media companies to suppress disfavored speakers, viewpoints, and content on social media platforms under the Orwellian guise of halting so-called ‘disinformation,’ ‘misinformation,’ and ‘malinformation.’…As a direct result of these actions, there has been an unprecedented rise in censorship and suppression of free speech—including core political speech—on social-media platforms.”

Landry and Schmitt reiterate that point in a “joint statement of discovery disputes” they filed yesterday in the U.S. District Court for the Western District of Louisiana. “Under the First Amendment, the federal Government should have no role in policing private speech or picking winners and losers in the marketplace of ideas,” they say. “But that is what federal officials are doing, on a massive scale—a scale whose full scope and impact [are] yet to be determined.”

So far, Schmitt reports, documents produced by the government in response to a court order have identified 45 federal officials who “communicate with social media platforms about ‘misinformation’ and censorship.” Schmitt and Landry think many other officials are involved in “a vast ‘Censorship Enterprise’ across a multitude of federal agencies,” and they are seeking additional documents to confirm that suspicion.

In response to inquiries, Landry and Schmitt say, “Facebook and Instagram identified 32 federal officials, including eight current and former White House officials,” who have contacted them regarding “misinformation and censorship of social-media content.” YouTube “identified 11 federal officials, including five current and former White House officials,” while Twitter “identified nine federal officials, including at least one White House official.”

Judging from the examples that Schmitt cites, the tenor of these communications has been cordial and collaborative. The social media companies are at pains to show that they share the government’s goals, which is precisely the problem. Given the broad powers that the federal government has to make life difficult for these businesses through public criticism, litigation, regulation, and legislation, the Biden administration’s “asks” for stricter moderation are tantamount to commands. The administration expects obsequious compliance, and that is what it gets.

“Thanks again for taking the time to meet earlier today,” the Meta executive says in a July 23, 2021, email to Murthy. “I wanted to make sure you saw the steps we took just this past week to adjust policies on what we are removing with respect to misinformation, as well as steps taken to further address the ‘disinfo dozen.'” The executive brags that Meta has removed objectionable pages, groups, and Instagram accounts; taken steps to make several pages and profiles “more difficult to find on our platform”; and “expanded the group of false claims that we remove to keep up with recent trends.”

Twitter also was eager to fall in line. “I’m looking forward to setting up regular chats,” says an April 8, 2021, message from Twitter to the Centers for Disease Control and Prevention (CDC). “My team has asked for examples of problematic content so we can examine trends. All examples of misinformation are helpful, but in particular, if you have any examples of fraud—such as fraudulent covid cures, fraudulent vaccine cards, etc, that would be very helpful.”

Twitter responded swiftly to the government’s censorship suggestions. “Thanks so much for this,” a Twitter official says in an April 16, 2021, email to the CDC. “We actioned (by labeling or removing) the Tweets in violation of our Rules.” The message, which is headed “Request for problem accounts,” is signed with “warmest” regards.

Twitter’s desperation to please the Biden administration went beyond deleting specific messages. Landry and Schmitt note “internal Twitter communications” indicating that senior White House officials “specifically pressured Twitter to deplatform” anti-vaccine writer Alex Berenson, “which Twitter did.” In an April 16, 2021, email about a “Twitter VaccineMisinfo Briefing” on Zoom, Deputy Assistant to the President Rob Flaherty tells colleagues that Twitter will inform “White House staff” about “the tangible effects seen from recent policy changes, what interventions are currently being implemented in addition to previous policy changes, and ways the White House (and our COVID experts) can partner in product work.”

Like Twitter, Facebook was thirsty for government guidance. In a July 28, 2021, email to the CDC headed “FB Misinformation Claims_Help Debunking,” a Facebook official says, “I have been talking about in addition to our weekly meetings, doing a monthly disinfo/debunking meeting, with maybe claim topics communicated a few days prior so that you can bring in the matching experts and chat casually for 30 minutes or so. Is that something you’d be interested in?” The CDC’s response is enthusiastic: “Yes, we would love to do that.”

The communications uncovered so far mainly involved anti-vaccine messages, many of which are verifiably false. But Americans have a First Amendment right to express their opinions, no matter how misguided or ill-informed. That does not mean social media platforms are obligated to host those opinions. To the contrary, they have a First Amendment right to exercise editorial discretion. But that’s not what is really happening when their decisions are shaped by implicit or explicit threats from the government. Notwithstanding all the friendly words, Facebook et al. have strong incentives to cooperate with a government that otherwise might punish them in various ways.

Ostensibly, the Biden administration is merely asking social media companies to enforce their own rules. But those rules are open to interpretation, and the government is encouraging the companies to read them more broadly than they otherwise might.

Maybe Twitter would have banished Alex Berenson even if White House officials had not intervened, but maybe not. Multiply that question across the myriad moderation decisions that social media platforms make every day, and you have a situation where it is increasingly difficult to tell whether they are exercising independent judgment or taking orders from the government.

“Although a ‘private entity is not ordinarily constrained by the First Amendment,'” Supreme Court Justice Clarence Thomas noted in a 2021 concurrence, “it is if the government coerces or induces it to take action the government itself would not be permitted to do, such as censor expression of a lawful viewpoint….The government cannot accomplish through threats of adverse government action what the Constitution prohibits it from doing directly.” That is the gist of the argument that Landry and Schmitt are making in their lawsuit.

The danger posed by the Biden administration’s creepy crusade against “misinformation” is magnified by its broad definition of that concept, which encompasses speech that the government deems “misleading,” even when it is arguably or demonstrably true. “Claims can be highly misleading and harmful even if the science on an issue isn’t yet settled,” Murthy says, and “what counts as misinformation can change over time with new evidence and scientific consensus.”

In other words, the “scientific consensus,” however Murthy defines it, can be wrong, as illustrated by the federal government’s ever-evolving advice about the utility of face masks in preventing COVID-19 transmission. The CDC initially dismissed the value of general masking, then embraced it as “the most important, powerful public health tool we have.” More recently, it has conceded that commonly used cloth masks do little, if anything, to stop coronavirus transmission.

“Twitter’s ‘COVID-19 misleading information policy,’ as of December 2021, noted that Twitter will censor (label or remove) speech claiming that ‘face masks…do not work to reduce transmission or to protect against COVID-19,'” Schmitt says. “Other platforms had similar policies. Both Senator Rand Paul and Florida Governor Ron DeSantis were censored by Youtube for questioning the efficacy of masks.” Twitter even removed a mask-skeptical tweet by Scott Atlas, a member of the Trump administration’s coronavirus task force. But “now,” Schmitt says, “a growing body of science shows that masks, especially cloth masks, are ineffective at stopping the spread of COVID-19, and can impose negative impacts on children.”

Landry and Schmitt’s lawsuit also notes Twitter’s blocking of the New York Post‘s story about Hunter Biden’s laptop, which was deemed “disinformation” prior to the 2020 presidential election but turned out to be accurate. Social media companies have made similarly questionable decisions regarding discussion of the COVID-19 “lab leak” theory, which remains contested but has not been disproven.

Even acting on their own, social media platforms are bound to make bad calls. But  when the government demands that they all hew to an officially recognized “consensus,” the threat to free inquiry and open debate is far graver.

The post These Emails Show How the Biden Administration's Crusade Against 'Misinformation' Imposes Censorship by Proxy appeared first on Reason.com.

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In the face of impending power blackouts, the California State Assembly and Senate did abrupt turns toward sanity and voted to extend the operating life of the Diablo Canyon nuclear power plant. “This is a victory of pro-civilization values, including love of humanity and reason, over the forces of pro-scarcity nihilism,” tweeted Michael Shellenberger, founder of the pro-nuclear power activist group Environmental Progress.

Due to pressure from anti-nuclear activists, California’s Public Utility Commission voted 5-0 in 2018 to shut down both of the Diablo Canyon reactors by 2025. The new legislation reverses this ill-advised decision and extends their operating life by at least another five years. The Diablo Canyon reactors generate enough electricity to supply power for 3 million of the Golden State’s 13 million households.

Growing dependence on unreliable wind and solar power generation led not only to rolling blackouts in California in 2020 but also increased the price of electricity for California’s consumers. Shutting down Diablo Canyon’s reactors is counterproductive for those people who are concerned about the effects of greenhouse gas emissions on climate change. A point made, according to the New York Times, by Democratic Sen. Dianne Feinstein in a letter sent to California state legislators: “The alternative to the closure of the reactors at Diablo Canyon will most likely be additional natural gas generation, which would reverse progress on emissions reductions and worsen air quality,” she wrote.

This consideration was apparently lost on numerous other politicians who supported the closure of nuclear power plants in their states. These include New York’s Democratic Gov. Andrew Cuomo (Indian Point 2021), Massachusetts’ former Democratic Gov. Michael Dukakis and Democratic Sen. Ed Markey (Pilgrim 2019), and Vermont’s Democratic Gov. Peter Shumlin (Vermont Yankee 2014). The closure of these nuclear power plants has not surprisingly resulted in an increase in greenhouse emissions in those states.

More broadly, subsidized wind and solar power along with the advent of cheap fracked natural gas have made it hard for the ridiculously overregulated nuclear power industry to compete. Recognizing that both nuclear and renewable generation does not emit greenhouse gases, some states have adopted zero emissions credits to subsidize nuclear power generation as a way to level the playing field by countering the renewable energy credits their wind and solar power competitors receive. But as I argued back in 2016:

If man-made global warming is a problem, it is self-defeatingly idiotic for environmentalists to oppose nuclear power, a safe and reliable source of climate-friendly electricity. I just wish the nuke boosters would aim to roll back restrictions rather than adding yet more subsidies to the marketplace.

Shellenberger also makes the obvious point that if most electricity is generated using safe, reliable, climate-friendly nuclear power, there is no reason for a massive build-out of renewable power generation. As he savors the Diablo Canyon victory, Shellenberger observes, “We still have a lot of nuclear plants to save, and we have many, many more to build. This is the work of many lifetimes.”

The post California Legislators Vote To Keep Diablo Canyon Nuclear Plant Running appeared first on Reason.com.

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A massive heatwave has come to California, so citizens of the Golden State may be enduring triple-digit temperatures for a week. The pressure the heat will throw onto the state’s power grid has prompted an emergency call for citizens to reduce electricity use during peak early evening hours. Democratic Gov. Gavin Newsom has declared a state of emergency that temporarily eases some state regulations limiting operations of thermal power plants and portable generators.

Part of this call for citizens to reduce electricity consumption from 4 p.m. to 9 p.m. also includes a request that citizens “avoid charging electric vehicles while the Flex Alert is in effect.” This request comes only a week after California leaders moved forward with a plan to ban most gasoline-powered vehicle sales in the state (with an exception for hybrid vehicles) by 2035.

Though it is true that such a ban will reduce emissions, switching to electric vehicles will over time dramatically increase the strain on California’s power grid. If everybody in California went out and bought electric vehicles tomorrow, it would probably be an energy disaster.

That’s probably not going to happen for a few reasons. California solely plans to ban sales, not all operation of gasoline-powered cars. Millions of Californians won’t and probably can’t afford to transition to electric vehicles within the next 13 years. Though California has the most electric vehicles registered of any state (550,000), that’s out of more than 14 million total vehicles, so still a drop in the bucket.

In that sense, the slow-but-steady adoption of electric vehicles should give the state the opportunity to actually plan for an increase in energy demand. On Wednesday, lawmakers voted to keep the nuclear power plant, Diablo Canyon, open until at least 2030. It had been scheduled to be decommissioned by 2025.

A 2017 report from the California Energy Commission which forecasted energy demand until 2030 did so by assuming an increase in adoption of electric vehicles in the state. Their highest estimate assumes 3.9 million of these vehicles on the road in California by 2030. The increase in electricity demand would thus be significant, jumping from less than 1,000 gigawatt hours in 2017 to about 16,000 by 2030. California consumes about 260 terawatt hours of electricity annually, according to U.S. Department of Energy statistics. It would be an increase in energy demand of around 6 percent per year by 2030.

A single nuclear plant could handle a good chunk of this new demand, but the amount of energy generated would still be far less than needed to achieve California’s long-term goal of getting rid of gas-powered vehicles entirely and switching to electric.

The government shouldn’t be forcing people to purchase—or abstain from purchasing—certain types of vehicles in the first place. But beyond that, signaling to the public that the electricity grid is being overtaxed during the summer does not instill residents with confidence that California is prepared for the transition it’s trying to mandate.

The post California Wants Everybody To Buy an Electric Car, but Its Own Energy Grid Can't Support It appeared first on Reason.com.

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One of the fun conditions of this project is that the three teams did not in any way collaborate with each other or get an advance look at what the others were going to say. As a result some recommendations overlap between teams in a positive way, some conflict, and many others simply don’t engage one way or the other. For example, we at Team Libertarian reached very similar conclusions to Team Progressive on reforming the Electoral Count Act, but a mostly opposite conclusion (as Prof. Foley has noted) on whether government should seek to regulate false statements about elections. And although Team Conservative’s comments on restricting presidential emergency powers both dovetail with ours and add useful detail, few of our other recommendations engage.

Although we and Team Conservative may have marched off in different directions, I and many Cato Institute colleagues are on board with much of what they say. Runaway administrative agencies usurping legislative power? Yes, a big problem. Congressional abdication of power stretching over for a half-century or more, shifting responsibility to the President and the judiciary? Definitely.  I agree too that there’s a decent case for making it at least a bit easier to amend the U.S. Constitution. (Here’s a Cato fellow writing in 2011 proposing a modest reduction in the threshold number of states needed for proposing and ratifying an amendment.)  The need to move past a broken primary system in which candidates with independent and crossover appeal get knocked out because they can’t appease their party’s most zealous base voters? Right again.

On the topic of elections, we’re also in agreement with Team Conservative’s observation that campaign finance reforms have backfired and that we should be repealing such laws rather than adding more. But let’s also get real: the election world wasted much of 2021 in a battle over whether Democrats would succeed in ramming through an omnibus package expanding these laws yet further. As I’ve argued, this package, the so-called For The People Act, 1) put its thumb in the eye of libertarian and constitutionalist principle, and 2) was supremely irrelevant to the distinctive challenges of the events leading up to Jan. 6. Shouldn’t we focus on reform efforts that have a chance of doing relevant good between now and the next grave election crisis down the road – which we might find ourselves in the middle of by a date as early as, say, 2024?

Which brings me to some policy disagreements with Team Conservative. I can’t say I’m persuaded by the idea of letting Congress override presidential vetoes by simple majority vote, as Tennessee does. The Founders meant to establish serious checks and balances against the dangers of hasty legislation, and gutting the power of the president’s veto would knock out one of the most important of those checks. (For what it’s worth, my home state of Maryland sets its veto-override threshold at three-fifths rather than two-thirds – not that I’m recommending that, either.) On bringing back the legislative veto, I share the misgivings about that innovation expressed by Antonin Scalia, then editor of Regulation, many years ago.

Now on to Team Progressive. On one major point we agree strongly: it’s incredibly dangerous when a controlling faction of one of the two great political parties wrongly contends that honest and correctly tabulated elections were stolen or rigged. The Progressive report gives this problem a central place in its analysis, and that seems right to me.

Yet there are differences of mood and terminology in our approaches as well. As I commented on Twitter the other day, I continue to search for phrases other than “Big Lie” and “election denier” that would let us criticize both these things without using terminology associated with you-know-what. Millions of persons sincerely believe the false claims in question. They are truly convinced that they, not we, are doing the right thing and standing up for fair and free elections. There are some genuine villains out there feeding them lies, as well as crazies irresponsibly stoking mass delusion. But the ordinary believers are also our friends, our relatives, and our neighbors. We cannot stop being those things to them if America is to gather back its wits and turn back down the road toward some semblance of unity.

As to policy, I’m a convinced advocate of ranked-choice voting, but I’d caution that its advantages are relatively subtle; it won’t put out the fire of public disbelief in election results. The fact is that in some key states, election fabulists may presently be popular enough to win, or at least put up a strong contest, under whichever set of rules is used. (I also think the plain-vanilla version of RCV, sometimes called instant-runoff voting, is better suited to today’s America than the more complex “round-robin” variant that Foley recommends.)

We and Team Progressive likely part company on some issues of federalism and decentralization. Ned Foley and Ilya Somin have already discussed this a bit as to foot voting, and I suspect that our teams may also diverge on to what extent the federal government should play a greater role in supervising the states in election administration; we caution against this at several points.

Also on the Foley-Somin exchange linked above, I’ll mention for what it’s worth that I’m probably a little more positive about civics education than Ilya is.  Still, I do recognize there can be difficult problems in legitimately educating the public about how the electoral system works, on the one hand, while avoiding the specter of taxpayer-funded propaganda campaigns, on the other. (As an example of the challenges involved, here’s how the Nebraska Secretary of State set about refuting myths and rumors about the 2020 count.)

Thanks to the National Constitution Center for making possible this summer’s exchange of views with writers and scholars we respect, and to the Volokh Conspiracy for hosting this shorter symposium this week.

The post Guardrails of Democracy, Extended: Comparing Notes On The Team Libertarian Report appeared first on Reason.com.

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On Tuesday, a Virginia Beach court dealt a serious blow to would-be book-banners who were trying to restrict private bookstores from selling two books to minors.

Their lawsuit targeted Gender Queer by Maia Kobabe and A Court of Mist and Fury by Sarah J. Maas. Gender Queer has been at the center of many book-banning battles for its graphic sexual scenes, particularly its visual illustrations of oral sex. The petitioners argued that A Court of Mist and Fury is “sexually offensive in nature” for its illustrations of sexual acts and descriptions of “abusive and intrusive sexual contact.” Circuit Judge Pamela S. Baskervill, who came out of retirement to try the case since all other judges recused themselves, dismissed the suit on free speech and due process grounds.

In May, former congressional candidate Tommy Altman and state Del. Tim Anderson (R–Virginia Beach), his legal counsel, filed two petitions under Virginia’s obscenity law to have the books deemed obscene for minors. They attempted to require booksellers to obtain parental consent before selling those books to minors.

Virginia residents may file an obscenity petition when they believe someone “is engaged in the sale or commercial distribution of any obscene book.” An obscenity petition may result in the court issuing “a temporary restraining order against the sale or distribution” of the book in question, which then assumes knowledge of the restriction among those who distribute the title even before a full trial has taken place.

In Virginia, obscenity involves “a shameful or morbid interest in nudity, sexual conduct, sexual excitement, excretory functions or products thereof or sadomasochistic abuse” as its “dominant theme or purpose.”

“Taken as a whole,” a book must also lack “serious literary, artistic, political or scientific value” to be considered obscene.

Altman and Anderson specifically sought to keep minors from purchasing Gender Queer and A Court of Mist and Fury from Barnes & Noble and independent sellers. Barnes & Noble filed a brief supporting motion to dismiss the petitions, noting that they fell “woefully short of the constitutional standards governing obscenity.”

For one, even though the petitions allege the books have “no serious literary, artistic, political, or scientific value to minors,” this is a conflation of “two statutes that employ different legal standards.” Though Virginians may file petitions under the obscenity clause, nothing in that clause specifically names or applies to minors. Thus, Barnes & Noble argued that the books could not be considered “obscene only…to juveniles.”

Nor did the petitioners make an effective case that the books meet the general standards for obscenity. Barnes & Noble’s brief points out that the petitions single out only small portions of the books as inappropriate for minors, defying the established standard to consider material “as a whole” in order to deem it obscene.

The petitions “ignore the language of the Virginia statutes under which they were filed and assume that developments in First Amendment law over the past sixty-five years never occurred,” notes Barnes & Noble’s brief.

Baskervill didn’t actually determine whether the books were obscene for minors, but she did find that the petitioners didn’t “allege facts sufficient to support” a general obscenity finding. Moreover, Baskervill found that the Virginia Code’s obscenity statute “is unconstitutional on its face.” It “authorizes a prior restraint that violates the First Amendment and the Constitution of Virginia,” she wrote, and “violates due process by authorizing judgment without notice to affected parties.”

In some ways, this case was an unprecedented extension of the modern culture war’s book front. Since 1973, the Supreme Court “has accepted no cases involving literary obscenity, nor has it found any book to be obscene,” notes Barnes & Noble’s brief. The Virginia Beach petitions also represent an unusual strategy by attempting to harness a little-used section of state law to block the distribution of certain books to minors. They were attempts “to manufacture jurisdiction” by “mashing together” unrelated statutes, according to the Barnes & Noble brief.

But this case was especially notable—and concerning—since the petitioners attempted to target private book distributors under a criminal statute. Rather than just affecting public schools, where many book battles take place, these petitions aimed to limit activities in the private sphere. Regardless of what one thinks about the literary value of these two books or the age level for which they’re appropriate, these circumstances alone are deeply troubling.

The post Virginia Can't Force Bookstores To Card Kids for Books on Gender and Sexuality appeared first on Reason.com.

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