Supreme Court Takes Up New Social Media Cases
Supreme Court Takes Up New Social Media Cases
A look at the tradeoffs the Court will have to weigh when it comes to the question of if official government accounts can block users
Hello from Johannesburg, South Africa, where I am speaking at the Democratic Union of Africa about trends in social media and campaigning. I’m typing this as I sit in the conference hall listening to the first day of speakers. Well, right this minute, we are waiting for the President of Ghana to arrive, so a perfect time for me to start writing.
My main message to attendees? It’s all rapidly changing. I even struggled to develop what best practices to share as they could easily be out of date very soon.
But rest assured - we will be talking about AI.
This has been one hell of a week. Mercury is definitely in retrograde, as I had no wifi on my 15-hour flight from Atlanta to Joburg. Then there were issues finding my ride to the hotel, and once I got to the hotel, they said it had been canceled Monday. 😬 Everything got sorted out, and I woke up to a lovely sunrise. I don’t have much downtime here, but if you have recommendations of things to do, please send them.
This retrograde also brings a lot of change. BuzzFeed done. Tucker, Don Lemon, and Jeff Shell are out. Brian Kolfage is going to jail for his part in the “We Build the Wall” scandal. Nate Silver is leaving 538. And, of course, Aaron Rodgers has officially been traded to the Jets.
I’ve really only known two Packers quarterbacks in my lifetime. Favre and Rodgers. I feel so lucky to have had two amazing ones back to back. Am I smarting a bit that Rodgers is also going to the Jets? Yeah, a little. I just really hope he doesn’t also go to the Vikings or, heaven forbid, the Bears. Regardless, I thank Aaron for what he brought to the Packers and its fans. We’ll never forget it.
This is likely going to be my only newsletter this week. I apologize, but I lost a whole day getting to South Africa, and Monday was a whirlwind with all the news. I promise I’ll return to a more regular swing of things come May.
I’m also thinking about starting a companion podcast. In it, I’d talk with guests to discuss the same type of issues I do in this newsletter, with a particular focus on all the 2024 elections coming up. What do you think? Would you listen? I’m also wondering if I should provide an audio version of this newsletter. Let me know if that’s something you’d welcome.
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Given all the news this week, it would be easy to have missed that the Supreme Court agreed to hear two cases on social media. I probably would have if I hadn’t seen a tweet by Kate Klonick on it. And, it’s not the Texas and Florida bills - that’s still waiting on comments from the Biden administration - but rather on if it’s ok for government officials to ban users from engaging with them on these platforms.
This has long been an issue of tension between governments, sunshine laws, and the platforms. Let’s look at why and what tradeoffs the Supreme Court will have to consider. Not surprisingly, it mainly comes down to speech, transparency, and safety.
First, some context. Since the mid to late 2000s, as social networking sites like Facebook, YouTube, and Twitter became more mainstream, governments and their representatives (elected or civil) started to use them to connect with citizens. Many also created personal accounts to engage with their family and friends.
Some platforms - like Facebook - had different types of accounts you could have. There’s the profile where you have to use your real name; to be connected with someone, you both have to accept that connection, and you can only have 5000 friends. Then in late 2007, pages were introduced where individuals and entities could have a presence. You could have an unlimited number of followers. Run ads and get insights. But, to run a page, you had to have a profile connected to it.
This was the first type of complaint I got from mostly local officials who were worried that their state sunshine laws - those that ensure transparency of how the government is working - would then also apply to their personal profiles because that’s what they had to log into to manage the page. Here’s one example of the type of legal advice they’d get.
This separation of official versus personal is what one of the Supreme Court cases deals with. In Lindke v Freed, the lower courts determined that when Kevin Lindke posted a comment critical of the city’s handling of COVID on a page of James Freed - the city manager of Port Huron, Michigan. Freed deleted it, eventually blocking Lindke; he was ok to do so because the court said he was using his account personally, not officially.
What was Lindke’s argument for why he shouldn’t have been blocked in the first place? The First Amendment.
The second case is O’Connor-Ratcliff v. Garnier. In this instance, two school board members blocked two parents who criticized them, and the lower courts agreed they couldn’t do so as it violated the First Amendment, given their capacity as board members.
This is not the first time this issue has come before the courts. In 2019, Donald Trump was already taken to court over blocking critics on Twitter. In 2021, the Supreme Court dismissed the case since the former President had been suspended from the platform and was no longer President.
This goes back further than Trump too. President Obama was the first President to have an official Facebook page. In 2009 when he took office, his digital team wrote about how they consulted with lawyers about how these accounts would have to comply with the Presidential Records Act. They determined they would need to preserve everything and not delete any comments. It turned their comments section into a never-ending stream of spam and nonsense, but they couldn’t delete it. When he left office, they outlined again how they would preserve it all.
This was also an issue at the local level, as I mentioned above, and tools such as Archive Social sprung up to help these entities preserve their content to comply with the law. They also have a handy tool to look up sunshine laws by state.
This was a challenge for other government agency pages too. I remember when one agency repeatedly asked Facebook for the ability to turn off comments because they couldn’t have people sharing sensitive or incorrect data with them. This was something Facebook didn’t have built-in as an option.
My friend, Jessica Seale, who has worked both in Congress and the US government, told me about how at the Small Business Administration, their comments section would be filled with spam, especially around SBA loan scams or identity theft. Still, they felt like they couldn’t delete them due to guidance from their legal departments.
Moreover, elected officials face a lot of harassment on their social media posts - especially women. NDI has done a lot of work documenting this issue. It’s unfortunately not uncommon for offices to report violent comments to the FBI. Congress doesn’t have any rules around moderating comments or not, but these latest court cases could change that.
It seems simple on the surface. Citizens should not be barred from accessing information from their government. They should be able to engage respectfully. Officials shouldn’t be able to shut down critics. But this raises two questions:
Is there a difference between the right to access information versus the right to engage? For instance, for many platforms, even if you are banned from engaging, you can still see the content. Is that ok?
How to handle people who disrespectfully engage by spamming or posting hate speech or harassment. There are some narrow guardrails the police and governments can put on protesters. What does that look like online? Is there a difference between what a government official can do versus what a company can do to an official government page? That’s what we are all trying to figure out.
I also wonder how these cases could affect the decisions by companies from fact-checking politicians (or not), any reduction in the reach of official content, or even sorting of comments. For instance, Facebook created a tool called constituent badges so offices could know whether a comment came from a constituent. Should that make a difference in if you can ban an account or not?
Looks like the court will hear arguments this Fall, with a decision coming next year - right in the middle of the election. 😬 Just another reminder that when it comes to how politicians use the internet, the only thing I can promise is change and recommend flexibility.
PS: I tried to find examples of similar court cases worldwide. My network pointed me to these cases in Brazil around Bolsonaro deleting critics, but it doesn’t look like they’ve been taken up yet. I can’t recall any others. If you have any I missed, please share!
What I’m Reading
Axios: RNC slams Biden re-election bid AI-generated ad
Reminder that the Washington Post reported earlier in April that Meta wouldn’t say if politicians can post AI-generated fakes without labels
Engadget: BeReal says it has more than 20 million daily active users
CNBC: TikTok has tens of thousands of content moderators in Ireland
Politico Magazine: Matt Stoller Wants to Build a Trust-Busting Machine
FedScoop: Congress gets 40 ChatGPT-plus licenses
Financial Times: UK set to legislate to create new regulator to tackle Big Tech
SCOTUSblog: Justices add two cases on liability of officials who block critics on social media
Bloomberg: VPNs Are Going Mainstream, and So Are Their Trust Issues
The Atlantic: The Internet of the 2010s Ended Today
An important point made in this story is what will happen to the BuzzFeed archives?
Reuters: In YouTube case, U.S. Supreme Court could shape protections for AI
This American Life: What I Was Thinking as We Were Sinking - Part 2 is an interview of Yoel Roth by Casey Newton
Foreign Policy: How Gamers Eclipsed Spies as an Intelligence Threat
Euractiv: Commission announces first platforms to fall under EU digital rulebook’s stricter regime
Bloomberg: Meta’s Clegg Invokes Anti-China Rhetoric Against TikTok
TechCrunch: Twitter will now show labels on tweets with reduced visibility
AP: Insider Q&A: OpenAI CTO Mira Murati on shepherding ChatGPT
Financial Times: Cottage industry of Chinese scammers target TikTok
The Nation Thailand: TikTok joins forces with EC to tackle election misinformation
Bloomberg: Brazil Court Orders Ban on Telegram Over Neo-Nazi Content
Verge: Mark Zuckerberg says Meta wants to ‘introduce AI agents to billions of people’
Harvard Law Review - Kate Konick: Of Systems Thinking and Straw Men
Tech Policy Press: Roundup of federal legislative proposals that pertain to generative AI
Tech Policy Press: Tools for Platform Research: Lessons from the Medical Research Industry
Democracy Digest: Twitter changes boost autocrats’ digital disinformation
Digital Forensic Research Lab: State-Controlled Media Experience Sudden Twitter Gains After Unannounced Platform Policy Change
Latin America Risk Report: Argentina - State of the race six months out from the election
Campaigner: How campaigns are working with creators & influencers
Gov.uk: New bill to stamp out unfair practices and promote competition in digital markets
U.S. Postal Service: The Growing Impact of Direct Mail: Insights from the 2022 Midterm Elections on How to Directly Reach Voters and the Future of Campaigning
2022 saw a 34 percent increase in political mail volume compared to 2018
Sixty-two percent of Gen Z voters “trust direct mail more than online political advertising — compared to 42 percent of older voters.”
Substack: How we are striving to make Substack Notes a good place for civil discourse
Twitter: An Update on Transparency Reporting
TikTok: CEO TED interview
At the 32:54 mark, Chew was asked about Chinese influence on US election. Chew says they are addressing this through transparency and allowing someone else to review the source code.
Calendar
NOTE: I had to shorten the calendar due to Substack’s length limits.
🚨 NEW 🚨
April 28, 2023: Musk on Bill Maher
April 29-30, 2023: G7 Digital Ministerial meeting
May: EU-India Trade and Technology Council meeting in Brussels
Topics to keep an eye on:
Facebook 2020 election research
TV shows about Facebook - Doomsday Machine and second season of Super Pumped
April 19 - 23, 2023 - International Journalism Festival
April 25, 2023 - Alphabet Q1 Earnings Report
April 26, 2023 - Meta Q1 Earnings Report
April 27, 2023 - Amazon Q1 Earnings Report
April 27, 2023 - Pinterest Q1 Earnings Report
April 27, 2023 - Snap Q1 Earnings Report
April 28 - 29, 2023 - Knight First Amendment Institute - Optimizing for What? Algorithmic Amplification and Society
April 30, 2023 – Paraguay election
May 2 - 4, 2023 - Microsoft 365 Conference
May 4, 2023 - Apple Earnings Report
May 10 - 12, 2023 - All Things in Moderation Conference
By May 12 - Meta response on spirit of the policy decisions
May 14, 2023 – Thailand election
May 14, 2023 – Turkey election
May 15-16: Copenhagen Democracy Summit
May 13 and 27, 2023 – Mauritania election
May 21, 2023 – Greece election
May 21, 2023 – Timor-Leste election
May 24-26, 2023 - Nobel Prize Summit: Truth, Trust and Hope
June 4, 2023 – Guinea Bissau election
June 5-9 - RightsCon
June 5 - 9 - WWDC - Apple developer event
June 5, 2023 - The European Commission, European parliament and EU member states are due to agree a final definition for political advertising
June 11, 2023 – Montenegro election
June 19, 2023 - Meta response due on COVID misinfo
June 24 - June 30 - Aspen Ideas Festival
June 24, 2023 – Sierra Leone election
June 25, 2023 – Guatemala election