SCOTUS Hears Landmark First Amendment/Online Censorship Case. PLUS: Matt Taibbi on NY Times’ #TwitterFiles Hit Piece
TIMESTAMPS:
Intro (0:00)
SCOTUS Hears Censorship Case (10:27)
Interview with Matt Taibbi (56:41)
Ending (1:47:58)
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Welcome to a new episode of System Update, our live nightly show that airs every Monday through Friday at 7 p.m.
Eastern, exclusively here on Rumble, the free speech alternative to YouTube.
Tonight, choosing the most overlooked and under-discussed story of 2023 is not a difficult task, at least not for me.
Last year, a federal district court judge ruled that the Biden administration committed one of the gravest attacks on the First Amendment's right to free speech in decades, if not in history, by systematically coercing big tech platforms to censor dissent online and to silence various American dissidents the government had singled out.
This unconstitutional censorship regime, said the court, was accomplished with many of the key agencies of the United States government, including the FBI, the CIA, the CDC, and the highest levels of the White House itself.
Though the case was at a preliminary stage, the court ordered these coercive efforts to cease immediately.
The Biden Justice Department then appealed that decision to the Circuit Court of Appeals, which is the level of the federal judiciary immediately below the U.S.
Supreme Court.
And at the appellate court, a three-judge panel unanimously upheld the findings of that lower court judge in large part.
They did narrow the decision somewhat.
They found that there was insufficient evidence of the CIA's involvement, for instance.
But they did affirm the core finding that the Biden White House, the FBI, the CDC, and other agencies abused its power in a systematic way to coerce and force compliance with its censorship orders by big tech.
Now, these decisions were covered by corporate media, but they were radically downplayed.
As Elon Musk pointed out over the weekend in response to my statement that I just made here, that I made over the weekend on X, that this court ruling, these series of court rulings, were the most undercovered story of 2023, he said the vast majority of Americans have no idea that any of this even happened.
And we know why that is.
It's because the U.S.
corporate media in the United States affirmatively supports the Biden censorship regime that was declared unconstitutional.
Indeed, one of the most surreal and destructive facts of American political life is that it is our country's media outlet, which traditionally took the lead in defending values of free speech and a free press, that are now instead the leading agitators and activists for censorship of dissent carried out through the union of state and corporate power, which is what happened here.
The U.S.
government and big tech Uniting to censor dissent, and it is the media outlets that are supposed to defend free speech that have been the leading activists demanding that.
Now, to know that is true.
One can look at all the different means these media outlets have used to try and exploit their own coercion and their own power to induce big attack to censor, including repeatedly writing stories that they have blood on their hands if they won't censor more.
But perhaps nothing revealed this grim reality more that the media is the leading agitators for censorship.
Nothing revealed that more vividly than their reaction last year to the so-called Twitter files.
That was when Elon Musk, shortly after purchasing Twitter, opened up the company's corporate files to journalists such as Matt Taibbi and Michael Schellenberger and Lee Fong and others to allow them to show Americans in great detail how aggressively and extensively the Biden administration was engaged in the systematic effort of online suppression.
And when that tsunami of censorship evidence was reported and revealed, most of the corporate media united to implore Americans to look away, to ignore the reporting, did everything they could to convince Americans that that reporting did not matter.
In behavior that was as revealing as it was creepy, they actually read from the same verbatim script, pronouncing in unison that all of this reporting was a quote, nothing burger.
Now, part of that, to be sure, was standard petty professional jealousy.
There is nothing that enrages employees of media corporations more than journalists who break major stories without submitting to the constraints of the corporate masters for whom they work.
That, for example, is why they're more than happy to see Julian Assange rotting away in prison, because he has broken more major stories than all of them combined without working within the constraints of corporate media, and they hate him for it.
And that was part of the reaction to the Twitter files.
But much of it was ideological.
These media outlets and their employees favor the censorship regime.
In fact, they work to implement it.
And so the last thing they wanted was its exposure and its denunciation.
And therefore, in the face of one of the most important leaks of corporate documents shedding light, ample light, on this relationship between the state on the one hand and big tech on the other, they actually instructed their flock that it was not even worth paying attention to.
These people who call themselves journalists said, ignore these documents, they mean nothing.
Now, after the Biden Justice Department again lost at the appellate level an appeal to the U.S.
Supreme Court, which decided late last year to hear the case, this morning, the high court heard oral argument in which a lawyer for the government and a lawyer for the plaintiffs, the people who were censored, presented their arguments.
Now, it is often the case, though not always, that it is pretty foolish to try and predict the outcome of a court's ruling based on what they say and do during oral argument, but there was no question That many of the justices on the Supreme Court, if not a majority, were quite sympathetic to several arguments that the Biden administration was making to defend its conduct.
In particular, Justice Katonji Brown Jackson offered one of the most explicitly pro-censorship arguments I've ever heard a Supreme Court justice make.
And while her colleagues may not have gone as far as she did, many of them, including some of the conservative justices, Seemed quite comfortable, more comfortable than they should be, with the role the Biden White House has been playing in systematically censoring online dissent.
This is one of the most important free speech cases that the Supreme Court has held in years.
Far beyond the Twitter files, there has been ample reporting, some of which we have done of ourselves, some of which have been done by others, that prove that it is one of the U.S.
government's highest priorities to control and influence the flow of information and opinion online.
The boundaries and the limits that they will have to face when doing so, if any, is of great importance.
And today's oral argument shed a lot of light on whether they will have any limits at all.
And so we will examine that oral argument for you in detail.
Then, speaking of the surreal fact that the U.S.
corporate media has become the leading agitators and activists for online censorship, the New York Times this weekend published what can only be described as a pro-censorship manifesto, an opus of liberal ideology that justifies censorship as something for which we ought to be grateful.
Over and over, this article laments the fact that the cause of free speech and the restraints that it imposes on the government Somehow are preventing the government from doing all these important things to keep us safe from disinformation.
That's the same argument that we can't afford free speech in the area of disinformation that has led Democrats repeatedly to defend the FBI and the CIA from censoring online.
And it's the same argument that was made repeatedly this morning by Justice Brown Jackson in her defense of censorship and the contempt that she heaped on the First Amendment.
One of the reporters that the New York Times article discusses happens to be the same reporter who was the lead journalist in exposing much of this censorship regime to begin with.
He is Matt Taibbi, who, among other things, is the editor of Racket News at Substack, and he will join us in just a little bit to discuss both this New York Times article that makes the effort to justify the censorship regime the court heard, as well as today's oral argument in front of the Supreme Court.
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For now, welcome to a new episode of System Update, starting right now.
It's not often that the Supreme Court hears landmark cases that define the free speech rights of Americans.
In fact, you can argue that such an event happens maybe once every decade.
Oftentimes, you have to go back many decades to understand the scope of free speech rights by going back, for example, to the Brandenburg case that the United States Supreme Court decided in the late 1960s that still defines the outer contours of political speech and what it protects the United States.
Or the Claiborne ruling, which occurred in the early 1980s by a unanimous Supreme Court that sets limits on how people can be held responsible for the consequences of their speech.
It's not often that the U.S.
Supreme Court issues a landmark ruling that defines free speech.
And I would argue that the oral argument that the Supreme Court held today is the single most important free speech case, not only in decades, but the single most important free speech case
In the digital era, where it's not newspapers that are our primary means of hearing news, as happened, for example, in the New York Times ruled that the Nixon administration could not issue an order of prior restraint against the New York Times to prevent publication of the Pentagon Papers, another landmark ruling that happened in the early 1970s, It has nothing to do with television.
This is about the role that the United States government will be permitted to play in attempting to suppress online political expression, political speech of American citizens on the primary means by which we now trade ideas and hear one another's opinions and news from various outlets, which is the Internet.
And we have reported extensively on all the different ways that the U.S.
government And not just the US government, but the EU government and the UK government and the Canadian government and the Brazilian government and governments around the world that will understand that the power of the internet is so great, is such a threat to power centers and to establishment orthodoxies precisely because when it's free, It is impossible to centralize ideas and power, and therefore it is impossible to control the flow of information.
And that is why Western governments, including the United States, have made it a priority to create theories that allow it to justify why they have to control the internet, why they have to suppress free speech, why they have to censor.
And one of the things they do is they have to create theories that justify and convince Americans that they ought to not just tolerate this censorship, but crave it.
And one of the arguments the United States government has long made is that we have to keep you safe from the hate speech.
But a lot of Americans now understand that hate speech is such a malleable concept that it's dangerous to simply endorse the idea that the government can censor hate speech because that's often in the eye of the beholder.
But after 2016, when free speech on the internet led to things like the British people opting to leave the EU through Brexit, and most importantly, the American people defying what they were told to do and voting for Donald Trump instead of Hillary Clinton, it became the number one priority of American financial, political, and media elites to create theories, new theories, to persuade Americans to support censorship.
And the primary argument they created Was that there was this new kind of danger in the internet era called disinformation.
Disinformation, we were told, comes often from foreign powers.
It helped interfere in the 2016 election and foster the result that American liberals to this day regard as an apocalypse.
Disinformation, they say, is what convinced Americans not to take the vaccines they were told to take and therefore died in large numbers.
That disinformation is this grave threat and therefore we need the government to protect us from it.
And this has become The leading orthodoxy in liberal thought, including in most parts of the corporate media, which of course have a liberal ideology.
These are people who live in liberal cities, who circulate in liberal cultural precincts.
And so the idea that the U.S.
government has to be able to control the flow of information to protect us from disinformation and the dangers that it creates, including by Even especially by dictating and influencing and coercing what is and is not permitted to be said online.
has become one of the central ideological beliefs of American liberalism, broadly speaking, meaning everything from the left wing of the Democratic Party to the establishment liberals like Hillary Clinton and Chuck Schumer and Joe Biden and the people who surround him to the centrist and even parts of the establishment of the Republican Party who have all united in the belief that disinformation is something that can be defined Typically, it means dissent from establishment orthodoxies.
It is dangerous to be permitted, and therefore we have to censor in order to stop it.
And that is what is at the heart of what the Supreme Court had to decide today.
And it was obvious that many of the justices on the Supreme Court, not only the liberal justices, but several other conservative justices as well, believe that it is most definitely an appropriate role for the United States government to play To at the very least pick up the phone and call big tech companies in private and convey to them which views they think should be suppressed and which people they think should be silenced.
And while most everybody is willing to agree, except for Justice Brown Jackson, that what the U.S.
government cannot do is accompany those requests with explicit threats.
Meaning unless you censor the way we tell you to, we will destroy your company.
Pretty much everyone except for Justice Brown Jackson seems to agree that that is not permissive.
What they seem to be believing is that even when the U.S.
government is throwing its weight around, when they're having the FBI call the Big tech platforms at the same time that they're threatening to punish them in all sorts of ways by removing protections under the law that they need, or by attacking them in regulatory and legal ways, that there's somehow nothing sufficiently coercive about that behavior that makes it unconstitutional, even though the four federal judges underneath the Supreme Court who have all looked at this question
All agreed, not only of the Biden administration was violating the Constitution, but was doing so in a flagrant and glaring way.
Now, there's other questions that the Supreme Court has to decide that are more technical in nature, which we'll get to, including whether or not these plaintiffs who brought this lawsuit even have the right to sue the U.S.
government at all, and whether they could actually prove that the reasons they were censored was because of the U.S.
government.
But on the merits itself, there were a lot of very disturbing comments that were made, not only by the liberal justices, but several of the conservative justices as well, including Brett Kavanaugh and Amy Coney Barrett, and even John Roberts, that makes me, if I had to bet, Believe that it is more likely than not that the U.S.
Supreme Court in this case will find a way to reverse the appellate court in the district court and throw this case out and not give the American people what we need more than anything, which is protection from official state censorship through the power of big tech in the digital era.
Now, I want to begin by playing for you one of the more encouraging Exchanges, which was an exchange that took place between Justice Alito and the lead lawyer for the government, who's the deputy solicitor general.
And this was Justice Alito explaining to the government what his reaction was when he looked at this broad record of how often and continuously and aggressively the government was telling Big Tech what they wanted censored.
Exchange between the White House and other federal officials and Facebook in particular, but also some of the other platforms.
And I see that the White House and federal officials are repeatedly saying that Facebook and the federal government should be partners.
We're on the same team.
Officials are demanding answers.
I want an answer.
I want it right away.
When they're unhappy, they They curse them out.
There are regular meetings.
There is constant pestering of Facebook and some of the other platforms, and they want to have regular meetings.
And they suggest rules that should be applied, and why don't you tell us everything that you're going to do so we can help you, and we can look it over.
And I thought, wow, I cannot imagine Federal officials taking that approach to the print media, our representatives over there.
If you did that to them, what do you think the reaction would be?
And so I thought, you know, the only reason why this is taking place is because the federal government has got Section 230 and antitrust All right, now this to me goes to the heart of everything.
To mix my metaphors, and it's got these big clubs available to it.
And so it's treating Facebook and these other platforms like their subordinates.
All right.
Now, this to me goes to the heart of everything.
The argument that the government was making to defend the Biden administration and that several of the justices seemed convinced by was, look, when the FBI comes knocking on Facebook's door or on Google's door or the CIA does, or the CDC does, or the Biden White House at the highest or the CDC does, or the Biden White House at the highest level does, and they say, we want this information that you're allowing to You should not be allowing this information.
in.
I know what Justice Alito was saying is they're not polite about it.
They're demanding If they don't get answers right away, they say, how dare you not answer us?
We want to hear your answer.
They demand meetings.
They want regular channels of communication that allow them to constantly submit censorship requests or orders to these big tech companies.
Because as just as Alito said, the government sees these big tech platforms as their subordinates.
And the reason they see them as their subordinates It's because unlike with media outlets, which are protected by the First Amendment, which can publish things even if the government dislikes it, at least this is the old form of journalism.
It always used to be that way.
The New York Times would publish classified information and there was nothing the government could do about it.
Obviously, during the Snowden report that I did in 2013 for The Guardian and in 2014 and 2015 for The Intercept and media outlets around the world.
I was always in conversations with the government and the government was saying, we don't want you to publish these documents.
And if they provided a good reason why we shouldn't, namely if they can convince us that publishing a certain document would cause a lot of harm to innocent people without much value, we would decide, okay, we wouldn't publish that.
But that happened very rarely.
It did happen one or two times, but very rarely.
In the vast majority of the cases, the government understood that the power about deciding whether or not to publish resided with us.
And they were trying to convince us politely and through persuasion about what we couldn't publish.
But we knew that they had no power to stop us or to punish us if we did.
And so the relationship was obviously one of them coming to us, hat in hand, trying to convince us.
And what Justice Alito was saying here correctly is that if you look at the way the U.S.
government speaks to Facebook and Google and other big tech platforms, It's not that kind of a relationship because there are all sorts of things that the U.S.
government can do to punish big tech if they do not comply.
We saw this happen with Parler.
Remember, Parler was the free speech alternative to Twitter at the time and to Facebook.
And right when President Trump was banished, even though he was the sitting president of the United States, by Twitter and Facebook, something that world leaders, including in France and Germany and throughout Europe, that hated Donald Trump said was extremely alarming, to watch big tech silence the sitting president of the United States, Parler said, we're going to create a platform where there's no censorship, where people can speak freely, just like Rumble is now doing, as the free speech alternative to YouTube.
And you had government officials, including powerful ones in the Congress, come and tell Google and Facebook, or rather Google and Apple, you better remove Parler from your stores.
How can you allow a platform that allows hate speech and disinformation to continue to be downloaded through your stores?
And Google and Apple obeyed those requests.
And took out Parler from their stores and then Amazon removed it from their web services precisely because they knew that Congress had the power to punish those companies in all sorts of ways.
And there have been so many times when Democrats were in control of the House and now that they're in control of the Senate where they've summoned big tech CEOs before them.
And they've said to them explicitly, we've shown you this so many times.
Either you start censoring more in the way that we want, you start taking down more disinformation and more hate speech, or we will act against you.
So the relationship is inherently coercive.
If the FBI calls Facebook or the White House at the highest level calls Google or Twitter and says, why are you allowing these posts here?
Why are you allowing these people here?
We want them silenced.
The idea that this is just persuasive That they're just trying to convince these platforms benevolently to remove it, but the power rests with these platforms is a fifth grade understanding of how the United States government works, especially when it comes to big tech.
There are all sorts of protections big tech needs, particularly Section 230, which immunizes them from liability.
If a user of Facebook posts something that's defamatory, or if somebody on Twitter posts something that is somehow illegal, Section 230 says these platforms can't be held responsible for what their users publish.
If you were to remove Section 230, you would destroy the business model of these companies.
And the Biden administration has often held that club, that sword, above their head.
Here from Politico in September of 2022, White House renews calls to remove Section 230 liability shield.
So they know they have all these weapons in their hands to threaten big tech with.
They use it explicitly.
Now, The main case that has governed this situation, and it's one that we've covered before, was a 1964 case called Bantam Books.
And what happened in Bantam Books is perfectly applicable to what the Biden administration is doing here.
I actually was writing about this before this case even existed.
Back in 2019 and 2020, I started saying the U.S.
government's efforts to influence what big tech can and cannot allow is crossing over into censorship of the kind that the U.S.
Supreme Court in Bantam Books said was unconstitutional because what happened in Bantam Books was that a bookstore in Rhode Island was selling a book that had sexual themes and a local zoning board in Rhode Island thought that that book was inappropriate, that it was obscene, that it should not be sold.
Now, they knew they couldn't directly pass a law banning the selling of this book because that would be censorship, that would violate the First Amendment, and so what they did instead was they started threatening the bookstore and the publishing company with all kinds of fines and all kinds of investigations and all kinds of violations, in other words, intimidating them to take down the book voluntarily.
And ultimately the bookstore took down the book and the publishing company sued and said, government didn't directly censor, but what they did was they intimidated the bookstore into doing for the government what the government was barred from doing directly, namely, removing the book.
That is exactly what the U.S.
government has repeatedly done when it comes to Facebook and Google and every other platform is they're constantly using their threats both in Congress and in the White House.
So when you get a call from the highest level of the White House and they're not just calling and saying, "Hey, we would appreciate it if you were moved on this post." They call and say, we told you two days ago to remove this post.
You better effing remove it.
And they've used profanity and they use aggression.
And they're speaking to them, as Justice Alito said, like subordinates.
That is a case where the government has instituted a regime of censorship.
Precisely where the big tech companies know that they don't actually have the option to do it because if they don't obey, they will be punished.
Here is Mark Zuckerberg, the founder and CEO of Facebook, in June of 2023, making an extraordinary confession about exactly what was happening precisely at the time that all of this pressure was being applied.
This was during COVID.
When the government did not want anybody questioning the efficacy of masks, the efficacy of lockdowns, the efficacy of school closings, and ultimately the safety and the efficacy of vaccines.
They were calling Facebook all the time and saying, we demand that you remove this content.
This was also a time when the Biden administration did not want anybody questioning the integrity of the 2020 election.
And so they would call people up and they would call Facebook and Google all the time.
They would say, there are these people spreading doubts about the integrity of the 2020 election.
Why are you allowing these political viewpoints to remain up?
And here is Mark Zuckerberg explaining how Facebook perceived all of that pressure.
So misinformation, I think, is Has been a really tricky one, because there are things that are kind of obviously false, right, that are maybe factual, but may not be harmful.
So it's like, all right, are you gonna censor someone for just being wrong?
It's, you know, if there's no kind of harm implication of what they're doing, I think that that's, there's a bunch of real kind of issues and challenges there.
But then, I think that there are other places where it is, you know, just take some of the stuff around COVID earlier on in the pandemic, where there were real health implications, but there hadn't been time to fully vet a bunch of the scientific assumptions.
You know, unfortunately, I think a lot of the kind of establishment on that, you know, kind of waffled on a bunch of facts and, you know, asked for a bunch of things to be censored that in retrospect ended up being, you know, more debatable or true.
And that stuff is really tough, right?
It really undermines trust in that.
So what he's saying there is that you might have people saying factually false things online.
Maybe they're saying 2 plus 2 equals 5.
And he's saying, are you supposed to censor them just because they're wrong even though there's no social harm to them saying that?
Maybe they're saying the capital of the state of New York is not Albany but New York City or Buffalo.
Are they supposed to be censored just because they're wrong because it's disinformation?
But what he said was that the government and the medical establishment had declared certain views to be wrong That we're not only debatable, as it turns out, but actually that we're true.
That we're true.
People questioning the efficacy of masks or the efficacy of or wisdom of school lockdowns or school closures or the safety and efficacy of vaccines.
He was saying the government and the scientific establishment was telling Facebook at the time, you must take this down because it's fault.
And it turned out, he said, that those things were at least debatable.
And some of the things they were demanding be taken down actually turned out to be proven true.
Some of the things they were demanding censored.
Now, within the investigations that have been done by Congress and within the limited discovery that plaintiffs in this lawsuit obtained, there are all these emails inside Facebook where officials at the highest levels are saying to one another, the government is breathing down our necks and demanding that we remove this content.
We don't want to, but we feel like we have no choice.
That's something that you can read documents at the highest levels of Facebook, where they're saying, these are not things we want to take down, but the government is demanding that we do so.
And not only does the government have the ability to punish these big tech companies, they also have the ability to bestow on them huge benefits, massive contracts.
So if you're the CEO of a publicly traded company like Facebook or Google, You actually have an obligation not to go to war with the U.S.
government, precisely because the U.S.
government can harm you in so many ways.
You have the duty to maximize the value for your shareholders.
And so when the people call who can punish you and destroy your company by removing Section 230, or conduct criminal investigations against you like the FBI can, or who can lavish you with major contracts Like the White House and the Pentagon can.
When those people call at the highest levels, not junior functionaries, but political leaders at the highest levels, call and say, we want these people silenced and we want these posts removed, of course that is not voluntary in any meaningful way.
It is inherently coercive.
It falls directly into what the Supreme Court in that Bantam Books case said.
was unconstitutional, namely that once the Supreme Court, once the government starts intimidating private actors or threatening private actors or coercing private actors to engage in the kind of censorship that the government would be barred from engaging in directly themselves, then it becomes unconstitutional.
Now, as I said, there were Several Supreme Court justices that seemed not just comfortable with the idea that the Biden administration needs to be telling Big Tech what to take down, but who believe that it's urgent that they do so.
And one of those justices was Katanya Brown Jackson, who made some pro-censorship arguments That were so extreme that it actually kind of shocked me to hear a Supreme Court justice advocating a view of censorship that the Supreme Court has repeatedly rejected.
But the reality is, as I said earlier, that it's almost a religious conviction now on the part of American liberals, that things like disinformation are so dangerous and social media is so dangerous, that of course, we have to have the government.
Exercising the power to dictate what can and cannot be said.
When Matt Taibbi went to testify before the Congress, I remember very well that the House member from Texas, who's a Democrat, whose name is escaping me.
He's actually the Democratic nominee to run against Ted Cruz in Texas.
We'll get his name.
He's a former football player.
He now represents Texas in the House.
But anyway, in a video I've shown many times, he said to Matt Taibbi, You should be grateful to the people in the CIA.
Colin Allred, exactly.
His name is Colin Allred.
He said you should be grateful to the CIA and the FBI and the White House for censoring.
And if you remove your tinfoil hat, you would understand that these people are acting to protect us from dangerous things online.
This is absolutely what is embedded in liberal discourse.
That's why Every Democrat virtually defends the U.S.
security state's censorship efforts.
It's why the New York Times ran an article this weekend designed to depict free speech as an annoying and dangerous impediment to allowing the government to do what it needs to be doing, which is combating disinformation.
And it's why people like Katanya Brown Jackson, despite having gone to law school and despite being a member of the Supreme Court with decades of precedence, That bans censorship, now aggressively defending the need of the government to be able to censor.
Listen to what she said.
Whether or not the government can do this, this is something I took up with Mr. Fletcher, depends on the application of our First Amendment jurisprudence.
And there may be circumstances in which the government could prohibit certain speech on the Internet or otherwise.
I mean, do you do?
Do you hear that?
There could be, she said, instances in which the government could prohibit political speech from appearing on the Internet.
She's not even saying here what some of the other justices seem prepared to say, which is that the Biden administration didn't force big tech to censor anything.
They just kind of made nice suggestions like, oh, we would appreciate it if you remove this post because this contains disinformation.
Or this article about vaccines we believe is dangerous.
We would like it if you would take that down.
That wasn't her argument.
Her argument was, even if the government is ordering Big Tech to censor information, this is something the government has the right to do.
I'll just start at the beginning and play that again, because it's extraordinary to listen to.
Whether or not the government can do this, this is something I took up with Mr. Fletcher.
depends on the application of our First Amendment jurisprudence.
And there may be circumstances in which the government could prohibit certain speech on the Internet or otherwise.
I mean, do you disagree that we would have to apply strict scrutiny and determine whether or not there is a compelling interest in how the government has tailored its regulation?
Certainly, Your Honor.
Now, let me just say that sometimes the lawyers that you end up having defend the view that you hope wins don't do a great job at oral argument.
And And I don't know, Benjamin Aguinaga, he's the Louisiana Solicitor General.
This case was originally bopped by the states of Louisiana and Missouri by the attorney generals.
That's why they're the plaintiffs in the case.
And this is why he ended up, the Louisiana Solicitor General, ended up arguing the case for the plaintiffs against the Biden administration.
He was not an effective advocate at all.
He did not come prepared on the court question.
Because, of course, there are times when it would be okay for the government to tell big tech, hey, This post contains some really dangerous things.
We would appreciate if you would take it down.
And the court kept asking, given that, of course, sometimes it's not completely prohibited that the government communicates with big tech, where's the line that you draw between when it is permissible and when it becomes coercive censorship?
He was ill prepared to answer that question and it really frustrated the justices because I think they were looking for some standard, some line to draw to decide if the Biden administration fell on the wrong side of it.
And this question too, he did not handle well.
She was saying that there have to be some instances where the government can, in advance, censor.
And instead of saying no, that's prior restraint.
The Supreme Court has often ruled that the government has no power of prior restraint.
It cannot censor political speech in advance that way.
He agreed with it and kind of mumbled and allowed her to take a very extremist view of censorship and the government's power to do it and to get away with far more than she should have been able to.
Do you disagree that we would have to apply strict scrutiny and determine whether or not there is a compelling interest and how the government has tailored its regulation?
Certainly, Your Honor.
I think at the end of every First Amendment analysis, you'll have the strict scrutiny framework in which, you know, in some national security hypos, for example, the government may well be able to demonstrate a compelling interest, may well be able to demonstrate a narrative.
All right.
So not every situation in which the government engages in conduct that ultimately has some effect on speech Necessarily becomes a First Amendment violation, correct?
Maybe not necessarily, Your Honor.
I guess the top line question I would ask is, has the government set out to abridge the freedom of speech?
And in this case, you see that time and time again, because if you control- That's not the test for First Amendment violations.
Your Honor, this flows from the plain text of the First Amendment, right?
No, I understand, but we have a test for a determination of whether or not the First Amendment is actually violated.
So, in certain situations, the government can actually Require that speech be suppressed if there's a compelling interest, right?
It can, Your Honor, and I guess what I would say is that the courts below never got to strict scrutiny because the government never raised this, this has never been litigated.
The question in this case is whether at the front end, the government itself has undertaken action.
It's the coercion, it's the state action, right?
That's the question in this case.
And I would urge the court to address the state action issue just like you addressed it in Bantam Books.
Use that term four times in Bantam Books.
It's important to understand because it seems like an extremely expansive argument.
So I say that I don't think that's going to be the basis on which the Supreme Court rules in favor of the Biden administration, if it does, namely that, well, sure, the Biden administration is censored and they have every right to.
But the fact that there is at least one justice on the Supreme Court who now is of the view that the government has the right in advance to censor political speech What she's referring to is the idea that on some level, every constitutional right can be limited if a very high standard is met.
But it's not a prior restraint on free speech.
That is never permitted.
That was what the Nixon administration tried to do in the case of the Pentagon Papers.
When Daniel Ellsberg gave the Pentagon Papers to the New York Times, the Nixon administration tried to stop it in advance.
From being published, and it went to the Supreme Court, the most important press freedom case in history.
And the Supreme Court said, it may be that the government can prosecute the New York Times after the fact for publishing this information, if the government can meet all these extremely high standards for being able to prosecute a newspaper, but they can't do it in advance under any circumstances.
That would be prior restraint.
And what Katonji Brown-Jackson was saying was that, of course, sometimes the government does have the power in advance to say, this information on social media is so bad and so wrong and so dangerous that, yes, we have to allow the government to be able to order Big Tech to remove it.
She's defending that position.
Here is another exchange where a similar issue emerges, though even in a more extremist and clear way.
concern is that your view has the First Amendment hamstringing the government in significant ways in the most important time periods.
I want to play that again because this is at the heart of it, and this is what the New York Times article from this weekend that I want to review in just a second also tries to implant.
She believes, She believes, and I think other colleagues of hers on the Supreme Court also are ready to say, that the Supreme Court is like an impediment, or I'm sorry, the free speech guarantee is like an impediment to the government the free speech guarantee is like an impediment to the government being able to do things it needs to do, that we need it to She's saying the First Amendment hamstrings the government for,
From doing things at the most important moments that we need it to do.
For example, if there's a COVID pandemic, we cannot allow dissent to the decrees of the scientific establishment about what people should and shouldn't do.
It's too dangerous.
And we can't allow the free speech right of the Constitution to hamstring the U.S.
government.
From doing the important things it needs to do to protect us.
This is exactly what the New York Times did.
It depicted free speech concerns as an unreasonable and far-right obstacle to having the government do what it needs to do in this dangerous time, which is protect us from disinformation.
This has become the religion of the liberal establishment about why censorship is so necessary, and it became so manifest I mean, to hear it being advocated by journalists is one thing.
To hear it being advocated by a Supreme Court justice is something else entirely.
My biggest concern is that your view has the First Amendment hamstringing the government in significant ways in the most important time periods.
I mean, what would you have the government do?
I've heard you say a couple times that the government can post its own speech, but in my hypothetical, you know, kids, this is not safe, don't do it, is not going to get it done.
And so I guess some might say that the government actually has a duty to take steps to protect the citizens of this country, and you seem to be suggesting that that duty cannot manifest itself in the government encouraging or even pressuring and you seem to be suggesting that that duty cannot manifest itself in the government encouraging
I mean, I just, I can't let this go in terms of how extremist this is. - Yes.
She created a hypothetical, and several of them did as well.
Let's imagine that something really bad is going on online.
There's some claim being made that's dangerous or false, and the justices are saying, doesn't the government have to be able to call Big Tech and say, take this down?
And the response of the Louisiana Solicitor General, which in this case was quite good, was, no, the government has a lot of options.
Joe Biden can go on national television at any moment that he wants.
The U.S.
government has all kinds of powerful megaphones to counter speech that it claims is false.
That's the constitutional framework.
The way the government is supposed to respond to speech it regards as false and dangerous is not by calling people up and ordering it to be taken down.
That's what the First Amendment is there to prohibit.
The solution, if there's dangerous things being said that might be harmful to children or adults in a pandemic, is for the government to go and try and convince Americans that that information is false.
And that's what he was saying.
The government has solutions.
They're not required to sit by silently.
Members of the executive branch, members of Congress are permitted and they do all the time say, there's things going on online being said that we don't agree with.
And then the citizens get to hear from their government, their citizens get to hear from their opponents and from dissidents of the government.
And one of the things social media has liberated us from is the fact that we no longer are imprisoned In the power of a small handful of gigantic corporations, all of whom have the same identical interest in serving the government's messaging, this is what they're afraid of.
This is what they're saying.
I appreciate Justice Brown Jackson for being as explicit as she is.
She's speaking for American liberals here, and she's saying, we can't allow free speech anymore.
It's too dangerous.
That's what's at the heart of this case.
It's at the heart of the Biden administration's behavior.
It's at the heart of all these laws that countries throughout the democratic world are enacting to control the internet that they believe free speech no longer is a luxury that we can afford.
Because not really just hate speech, most importantly, disinformation is something that is too dangerous to permit.
And I guess, at the end of the day, There probably are two groups of people.
One group is a group that believes that the government can be trusted to dictate what is and is not disinformation.
And remember, if you think I'm exaggerating, that Homeland Security tried to create an office led by that crazy woman, Nina Yankovich, that was designed to do exactly that.
And that became a bridge too far, thankfully, even for our political culture.
But the New York Times article this weekend, which I'm about to show you, actually held that up as an example.
The failure of the Homeland Security Office as a way in which right-wing fanatics are using free speech to prevent the government from helping us and protecting us.
The failure of that Homeland Security Office.
So that's one group of people, people who trust the U.S.
government to dictate what is and is not disinformation and to censor the internet based on Their judgments.
And the other group is people who do not trust the government to do that.
And I would suggest that the only way to believe in the Constitution is by being in this second group.
Now, that's the merits of the case.
I do just want to address, because there is a good chance that the court will just absolutely refuse to even get to the merits of what the, whether the Biden administration did here, is Constitutional or not, because there's a procedural question, which I just want to explain because it very well may be what ends up deciding the case.
And I want to explain why, what this is, because not a lot of people understand it and it's extremely important.
One of the arguments the government is making is that even if the plaintiffs in this case, which include scientists and journalists and political activists, even if they were censored, They still don't have constitutional standing to sue the government and to obtain a ruling that it was unconstitutional.
And the argument that the government is making, that a lot of the judges on this court seem very sympathetic to, was that these plaintiffs cannot prove definitively that the reason their posts were deleted or the reason they were banned from these platforms Was because of the government's instructions.
So they can prove, the plaintiffs can, that the government told Facebook, we want you to remove anybody questioning the efficacy of the vaccine.
But Dr. Jay Bhattacharya, who's one of the plaintiffs, who had his scientific assessments of the vaccine deleted.
Can't prove that he himself was censored because of the government's decrees.
Maybe it was Facebook on its own that decided to remove his content.
And so in Article 3 of the Constitution that defines the judicial power, the court just can't go around opining in the abstract on whether the government's behavior is constitutional or not.
They need to have an actual conflict between two parties.
One party has to be able to allege that the other party harmed it.
That's the only kind of case that the judiciary can decide.
A case or controversy is how the Constitution defines it.
It's a limit on the court.
The court can't just go around saying, I think the government acted wrong here.
I think this party acted wrong.
You need an actual lawsuit between two parties, one of whom harmed the other.
And in order to sue the government, And obtain a ruling about whether what they did was unconstitutional.
Before you even get to whether the behavior was unconstitutional, you need to prove that the government acted against you.
And a lot of times, courts will just dismiss the case without even ruling by saying the plaintiffs don't even have standing to bring this case.
This is what was done all the time during the War on Terror.
This is something I wrote about more than anything else.
Here from Ceylon in 2009, so 15 years ago.
The headline was 180-Degree Reversal of Obama's State Secrets Position.
What would happen all the time during the War on Terror, first under Bush, and then Obama pretended to oppose it, and then Obama got into office, and the Obama administration did the same thing, which is what this article was about, is that Americans would want to sue the government and say, the government is spying on American citizens without warrants, and that's unconstitutional under the Fourth Amendment.
And so often the government would come in and say, the people who brought this lawsuit have no proof that we've actually spied on them specifically.
Yes, we are spying without warrants on Americans, but they can't prove that they're on the list of people that we illegally spied on and therefore they have no standing to even obtain a ruling.
And oftentimes, the lawyers would ask the court to tell the government, give us the list of the people who they're spying on without warrants so we can bring a lawsuit.
And first, the Bush Justice Department and then the Obama Justice Department would say, we can't give you that list.
It's too secret.
And that's what they called it, the state secret privilege.
And so often, the state secrets privilege was used as a way to keep Americans from knowing who exactly was being spied on without warrants, even though they were admitting they were spying on Americans without warrants, and therefore so often the court said, no one has standing to challenge
Whether the government, whether what the government is doing is illegal and it very well could be the case that the court will simply refuse to rule on whether what the Biden Justice Department did in calling Big Tech and pressuring Big Tech to censor can even be decided at all because the plaintiffs can't Prove that they were censored because of the government.
It seems like a technical issue, like an annoying procedural issue.
It's actually an important limitation on the court's powers.
In this case, there's actually a lot of evidence that the only reason these plaintiffs ended up being censored was because they were expressing the kinds of views that the government was telling these big tech companies they wanted removed.
But it's an easy way for the Supreme Court to avoid Either having to defend what the Biden Justice Department did here, what the Biden administration did here, or rule against it.
And I feel like they don't want to do either.
They don't want to justify it.
And they also don't want to create a standard that says the government is limited in how it can respond to big tech.
And so one way they may get out of it is by using the standing argument to just refuse to rule at all.
At the end of the day, It is urgent that we have some kind of standards about what the Supreme Court can and can't do or what the US government rather can and can't do when it comes to convincing and persuading and pressuring and coercing and cajoling big tech companies over whom it has enormous power.
to censor.
And if we don't get a ruling here, we need a ruling soon because there are few things more dangerous than allowing the U.S. government to be able to continue to dictate what kind of content can and can't be allowed.
All right, so in order to talk about both this case in which he played a central role in helping bring the reporting to light that showed what the Biden administration is doing, as well as an amazing New York Times article this weekend that really tried to defend the theory that I had just got done explaining as well as an amazing New York Times article this weekend that really tried to defend the theory that I had just got done explaining that found its way to the court that We have with us the independent journalist, the editor of Rackett News on Substack, Matt Taibbi.
He led the reporting.
On the Twitter Files has done absolutely vital work in exposing the relationship between the government and big tech and the censorship regime that is at issue in this case and in so many other places, and we are delighted to talk to him.
Matt, thank you so much for taking the time to talk to us.
Great to see you as always.
Great to see you, Glenn.
Kind of a brutal day, though, I have to say.
Yeah, that was not a very encouraging oral argument, I have to say.
Let's start with that, because I think a lot of people were expecting the conservative justices automatically to look at what the Biden administration is doing here and say, oh, this is an obvious and glaring violation of the First Amendment, which is how I look at it.
And I think what people Don't fully understand about the Supreme Court and these justices is that they are fully embedded in the Washington power structure.
You know, interact socioeconomically and in every other way and culturally with the people who form the highest levels of government.
And there seemed to be this naive sense on the part of even some of the conservative justices that, look, all that was happening here was that the FBI was calling and just trying to be helpful.
And the White House is just trying to share their opinions.
And there was nothing coercive or abusive.
I'm wondering what you make of that dynamic and the way in which the Supreme Court is kind of embedded in the political structure in Washington that they now have to judge.
Yeah, Glenn, I totally agree.
I mean, I was really shocked by the difference in the way that these judges talked about the case versus the appellate judges in the lower hearing.
I attended that colloquy in New Orleans, and you could tell that the judges in that case, if you read that ruling, by the way, they cut out quite a lot from the original lower court ruling.
And they were pretty even handed, pretty tough on the plaintiffs in the case.
But they were clearly horrified by the evidence.
I mean, that was abundantly clear in the way that they interrogated the government's lawyers.
In that hearing, they repeatedly compared the conduct of these agencies to the mafia, you know, nice Internet platform there.
It'd be a shame if something would happen to it.
The scale of it they took note of, and that was completely different from how these Supreme Court justices behaved.
They accepted the central premise that these were just sort of polite, friendly suggestions from the government that's just trying to help save the nation and prevent misinformation, which is Incidentally, a fundamental misunderstanding of the case.
As you know, plaintiffs are actually partly suing because they were censored for correcting government misinformation.
So there was a striking difference between those two institutions, I would say.
So I think that the way in which people understand the relationship between government on the one hand and big tech companies on the other is fundamental to how people understand what happened here in terms of what these communications really were about.
And probably the most encouraging exchange happened very early on.
I think it might have even been the first question when Justice Alito asked the Deputy Solicitor General Fletcher, he said, you know what, I've been reading these communications between the government and Big Tech and what strikes me is the way the government talks to Big Tech.
You know, I was talking earlier, and I know you've had this experience too, but when the government tries to convince you not to publish something, but they know it's ultimately your decision, they're very polite.
They're trying their best to convince you, to persuade you, to give you information, to negotiate with you.
Like, hey, maybe if you're going to publish this, you could withhold this.
That was the experience I had throughout the entire entire Snowden reporting and other instances when I've had classified documents and we've negotiated with the government, or not even negotiated but just gave the government an opportunity to look, persuade us.
And usually they don't persuade us, but the way they behave themselves is very, very deferential because the power is in our hands because they know the ultimate decision rests with us.
What Alito was saying in this case was, "That is not at all.
There was no deference that the government was expressing toward these big companies.
They were, like, speaking to, like, a minion or an underling.
Like, how dare you not get back to us within 24 hours?
Why haven't you taken down this post yet?
There was an expectation of obedience and subservience that Alito was saying he had never seen before in the relationship between any equals.
This was kind of a, you know, boss, employee type of dynamic.
You have spent a lot of time in your life now reading through the communications that at least went back and forth between the highest levels of Twitter and the government.
How would you characterize what that dynamic was?
Yeah, first of all, you're exactly right.
The government, when it wants to protest something to a journalist, first of all, they're talking to the journalist, right, Glenn?
I mean, when you've had these interactions before, they're arguing with you.
They're not going over your head to talk to your boss and say, you know, you have to hold the story, you have to kill the story for national security reasons.
That call would be totally inappropriate and it would be a serious question as to whether or not, you know, the publisher or the editor-in-chief of a major news organization would even take that call.
It would be maybe a one-time thing that would be appropriate to do.
But even in that case, Matt, even if they did try and go over my head or the head of a journalist to the editor-in-chief, they're still ultimately trying to persuade the institution, we want you not to say this.
We want you to restrict what you're saying.
In this case, they're not going to American citizens saying, we would appreciate it if you would take your post down.
They're going to third parties, Facebook and Google, and they're saying, we want you to censor these American citizens.
They're not talking to the American citizens at all.
They're trying to get the American citizens silenced by going and having third party corporate platforms censor those citizens for the government.
Oh, yeah, absolutely.
And the tone is completely different from what you would expect in a normal journalistic situation where, as you said, they would be trying to persuade you because they don't have the leverage of being able to order you to do it.
So they would make a best case.
They would, you know, pull out the charm, do whatever they have to do.
What we found in the Twitter files and also significantly what they found in the Missouri v.
Biom or the Missouri case was a tone of really sort of a master canine kind of relationship where they would say things like, you know, they would ream them out.
They would do it.
MF them.
They would use profanity.
Why isn't this out down yet?
Why hasn't this been fixed?
They would blithely just give them huge lists of names and write back six hours later.
How come there's been no action?
You know, we found the Twitter files, emails that said things like, you know, You know, sorry to add to your workload, right?
sort of jokingly when they would send them spreadsheets with thousands of names, as if it was their obligation as a kind of subcontractor to do this work.
Whereas if there was really any kind of independence, they would clearly not be taking that tone.
And the reason they can do that, Glenn, as you know, is because they're holding this sort of Damocles over their head with these gigantic subsidies like Section 230.
you know, if they suggest a chance They've said, if you don't censor more, we're going to take away your 230 protection.
I've heard them say that.
It's in the record.
The Congress has said that.
This is a threat that they don't allow to be implicit.
They've threatened it before.
They've said, if you don't censor more, we're going to take away your 230 protection.
I've heard them say that.
It's in the record.
The Congress has said that.
This is a threat that they don't allow to be implicit.
They make it explicit and manifest.
I mean, and they did it in press conferences even, right?
If I remember correctly, they would say that, you know, these companies are killing people, you know, through their inattention to the vaccination misinformation.
And then two seconds later, they would say, maybe we need to rethink our position on Section 230.
I mean, it's not exactly subtle.
This stuff's really right out in the open.
And another thing that we found in the Twitter files was that Twitter clearly understood these constructions to be a threat.
They talked about how legislation is being considered that would affect our revenue.
This is very open and there's an abundance of evidence, not just from us, but what was dug up in the depositions and in the document discovery of this lawsuit, There's no shortage of it.
It's very clear what the quid pro quo is meant to be and why they were taking that tone.
And so you're very right to point that out.
Yeah, and I think the other thing that's worth noting is that in this case, the incentives that these big tech platforms have to assuage and please and obey the government is not only an avoidance of punishment, meaning, oh, we better do what they say or they'll take away our 230 protection, but also these governments lavish on these platforms gigantic contracts, you know, like Apple and Facebook and Google do.
Billions of dollars worth of work for the Pentagon, for the CIA and cloud storage, all kinds of services.
And if one of these companies steps out of line and allows things to be said that the government made clear they don't want being said, that contract can just go to some other corporation.
I mean, part of your duty, you could argue, if you're the CEO of Facebook and Google, is to make sure you're keeping the government happy because of how important the government is for your business.
All right, Matt, let me I want to get into this New York Times article because you wrote about it and in a lot of ways it was a hit piece on you but it was also really an attempt to, I thought it was very valuable in terms of expressing the liberal mind when it comes to free speech and how they see free speech as this like annoying obstacle that's now in their way to have the government do all the things they think the government has to do.
But I want to ask you about one claim in particular first that relates to the Supreme Court ruling, what we were just talking about.
So there's the article you wrote on today's absurd New York Times hit piece.
You say, correcting the record after a desperate slam job on the Twitter files published just before oral arguments in a historic First Amendment case in the Supreme Court.
It's up on your sub stack this week.
And one of the inaccuracies you point out that was expressed in the New York Times article was that in your very first story,
The first of many dozens by you and multiple other journalists, you being the honest journalist that you are, said, within these documents I'm reporting, I can't say there's direct evidence of US government orders or forcible order instructions to censor, but there's a lot of circumstantial evidence of it.
The New York Times took that and quoted that in their story to try and say that the Twitter files never found any evidence of any actual government instruction or direction by your own admission.
Why was that so misleading to the point of being deceitful by the New York Times?
Yeah, not only did they claim that, but they claimed that we got that idea from Mike Benz, a former Trump administration official who we didn't even meet until the Twitter file stories were over.
The significance of what they were saying and the reason it was so deceptive, and I can't believe that these two experienced reporters, Jim Rutenberg and Stephen Lee Myers, didn't
Yes, although it was true that when we looked at the documents relating to the Hunter Biden laptop story, which is the subject of the first Twitter Files report, I didn't find correspondence talking about direct FBI involvement in that case.
But in all the subsequent reports after that, within days of moving on from that story, we found on a grand scale, in enormous quantities, evidence of direct government involvement in all kinds of other things related to the 2020 election, COVID,
The Russiagate scandal, it was one email after another where we saw things like flagged by DHS, flagged by FBI, flagged by FITF, flagged by Treasury, flagged by other government organizations, and this led us to find more documents that described a very formalized, elaborate relationship between all these agencies and Twitter.
So that was the subject of months of reporting that occupied most of December of 2022 and January of 2023.
The implication that we only hit upon that thesis when we met Mike Benz in March of the next year is deeply deceitful.
And I mean, I think, as you saw, the wording was about as bad as it gets when it comes to that kind of thing.
So if you'll indulge me, I do want to go over a couple of these passages from this New York Times article, in part because you wrote about it, but also because I think sometimes when the New York Times publishes something, it's just so valuable as kind of a window into how liberal elites are really thinking.
And I was involved in this discussion in the last few days with a bunch of Brazilians about this perception in the United States, alleged by some people, that I've somehow changed my ideological alignment from the left to the right, that you've done the same.
There's some idiotic book coming out that makes this claim.
And it is interesting that free speech and a defense of it and opposition to censorship has been something that you at Rolling Stone Magazine, of all places, of course, and myself have had as a central cause.
And nobody ever until like six years ago suggested that a defense of free speech was a coded right-wing value.
And I was trying to explain to these Brazilians that in the United States, if you now defend free speech, it almost automatically implies that you are a right-wing figure.
So they had trouble understanding that for reasons that I get because, you know, the influences on me from my free speech views when I was, you know, a kid and growing up were like the leftist lawyers at the ACLU and Noam Chomsky, who defended a French professor who was a Holocaust revisionist saying who defended a French professor who was a Holocaust revisionist saying he shouldn't lose his tenure even though he's a Holocaust revisionist because the state has no right to dictate what is true and false, even when it comes to Holocaust
This was a view that was... Yeah, the whole free speech movement started at Berkeley.
Like, a lot of the most important free speech precedents of the 20th century were written by left-wing judges.
But here's the New York Times, and as you say in your Substack article, replying to it and criticizing it, it's clearly designed to prepare liberals for this oral argument that happened today.
And here's the headline of it.
How Trump's Allies Are Winning the War Over Disinformation.
Their Claims of Censorship.
Notice, the only people worried about censorship are Trump allies.
Their claims of censorship have successfully stymied the effort to filter election lies online.
So, here's the New York Times framework of how to understand free speech, Matt.
On the one hand, You have far-right, Trump-supporting extremists like you and me who are worried about free speech.
And then on the other hand, you have good, responsible people who want the government to fight lies online.
And the only thing standing in the way of the government's ability to fight lies online and to remove those lies by doing things like having Homeland Security create a department of misinformation or have the Biden administration be able to coerce big tech are right-wing extremists like you and me Who, because we want Trump to win, are raising these issues of free speech.
Do you see how liberals now think about free speech?
It makes so much sense when you think about it this way, why they now hear free speech and think that it's right-wing.
Well, I see it, and it's unbelievably frustrating, as I'm sure it is for you.
One of my first jobs in journalism, I was an intern at The Village Voice.
I sat next to Nat Hentoff, who was sort of a legendary advocate for free speech on the left.
And this was during a time period where, just to take an example that's directly analogous to this current situation, do you remember the FBI once sent a letter to, I think it was Death Row Records after the NWA put out straight out of Compton Certainly recommending that this was not a good record, that advocating violence against the police was a bad thing.
That was an enormous scandal in liberal America.
It was covered in every major newspaper in the country.
It was condemned when the FBI sent one letter to one record label about one song.
What we found was that times a thousand, ten thousand, a hundred thousand.
The response, as you point out, is all these people are delusional.
This isn't really bad.
They're just trying to help.
They're trying to prevent election lies.
Again, I stress enough that this case, this particular case, You know, the plaintiffs were not committing disinformation.
These were medical professionals who were the most credentialed kinds of academics, who had conducted true research and were suppressed because of it, because the government was in error.
And this gets to something that, Glenn, I think you and I have always agreed about in our careers, which is that the most dangerous misinformation is always official.
The official lies, whether it's Gulf of Tonkin or the WMDs or Russiagate or whatever it is, those are the most dangerous.
And the only defense against that is unfettered free speech in which people get to express their opinions and do independent reporting.
But they want that suppressed.
This new vision of kind of American liberalism sees that as the enemy.
They have successfully painted that and coded it as a right-wing view.
It's a complete 180 that we have to reckon with now.
I'm curious to know what your thoughts are about how we go about fixing it.
Matt, there's no question in my mind that if this framework that has been created, and I really believe it was created after 2016 as a reaction to Brexit and then to Hillary Clinton's defeat, Donald Trump's election, where they said, holy shit, we can't allow free speech on the internet.
Look at these people going wild and ignoring what we're telling them to do.
If the UK can leave the EU and Donald Trump can beat Hillary Clinton, what can't happen?
We've lost all control if we allow free speech, and this is where this disinformation industry was concocted out of nowhere.
They got Pierre Omidyar and George Soros and Bill Gates to fund it, and it's not a conspiracy theory.
Those are the people who are behind it, along with intelligence agencies that fund these.
Reid Hoffman.
Reid Hoffman, all these liberal activists, and the idea was, let's put a scientific gloss the censorship regime so that we can pretend that we're not censoring political speech or dissent that we dislike
we're censoring some scientific category that we've now invented a new credential in called disinformation and it's disinformation experts apolitical disinformation experts who now identify the kind of information that is both false and dangerous and that can justify its removal let me just i got to reach you the new york times kind of attempt to explain to their readers what happened with these cases
because like i think that you know you had two cases two two uh courts a district court and then an appellate court in 2023 who ruled that the biden administration committed one of the gravest assaults on the free speech guarantee of the first amendment in decades and i guarantee you most americans have no idea that happened because the same people that told americans to ignore your reporting because it was a big nothing
burger are the ones who looked at this and said oh this is this is nothing this is nothing this is nothing this is This is good.
So here's the New York Times now realizing, well, we got to kind of tell our Readers, what the Supreme Court's about to decide, here's their version of how to understand this.
Quote, in September, the U.S.
Court of Appeals for the Fifth Circuit scaled the order back significantly, meaning the district court ruling, but still found the government had most likely overstepped the limits of the First Amendment.
That sent the case to the Supreme Court, where justices recently expressed deep reservations about government intrusion in social media.
Ahead of the court's decision, agencies across the government have virtually stopped communicating with social media companies, fearing the legal and political fallout as the presidential election approaches, according to several government officials who described the retreat on the condition of anonymity.
Three years after Mr. Trump's post about rigged voting machines and stuffed ballot boxes went viral, he and his allies have achieved a stunning reversal of online fortune.
Social media platforms now provide fewer checks against the intentional spread of lies about elections, Quote, the people that benefit from the spread of disinformation have effectively silenced many of the people that would try to call them out, said Kate Starbird, a professor at the University of Washington, whose research on disinformation made her a target of the effort.
It took a patchwork of systems started in Mr. Trump's administration that were intended to protect U.S.
democracy from foreign interference.
As those systems evolved to address domestic sources of misinformation, federal officials and private researchers began urging social media companies to do more to enforce their policies against harmful content.
This is the New York Times telling their readers.
That the only thing the government is doing is trying to keep everybody safe from Donald Trump's lies and from disinformation that's designed to help Donald Trump.
And this is why they think that if you stand up and say, you know what, on free speech grounds I don't want the government controlling I don't want the government dictating what is and is not disinformation.
This is why they think you're on the right, because they believe that the only people who would believe in free speech at this point are people on the right, because the censorship is designed to protect the country from right-wing extremism.
Do you see how clear it is when they frame it this way?
Oh, absolutely, and notice how many things they gloss over in just that little passage, like the fact that they presented this entire program as an effort against foreign misinformation and disinformation, and sort of on the fly converted it to allowing the State Department, for whatever reason, to be involved in combating domestic misinformation and disinformation.
But leaving all that aside, You're absolutely right.
They frame this as being about Trump, being about things like Sharpiegate, whereas in fact, it's a whole galaxy of topics that most of them, most of which have nothing to do with Donald Trump.
A lot of them are just a sort of broad switch from basically from what one source of mine called CT to CP, counter-terrorism to counter-populism.
It's just government going after stories that run counter to official narratives, and they just don't like that idea.
A great example being, again, in this case, you had Dr. J. Bhattacharya.
Now, the WHO- - Like a PhD, a scientist, a highly respected expert in public health at Stanford University, whose views were continuously censored, even though most of them turned out to be true, He's one of the plaintiffs in the case, alleging that the government was responsible for the censorship of his political opinions online.
That's one of the people whose speech they got censored, was one of the leading, most credentialed experts in the scientific establishment.
Go ahead.
Sorry, I just had to emphasize who he is.
No, of course, and I know Jay, and Jay is more interested in board games than politics.
He's the farthest thing from a Trumpist that you could possibly imagine.
But if you remember early in the pandemic, Glenn, the WHO put out this horrifying press release in early March saying that they were estimating the infection mortality rate to be 3.4%, which is an enormous number.
I mean, we were looking at a specter of millions of deaths, possibly even in that year.
Well, Dr. Bhattacharya had conducted an experiment in Santa Clara County that found that they had overstated that number by roughly a factor of 22, had conducted an experiment in Santa Clara County that found that they had overstated that number by roughly a factor of 22, that the real infection mortality rate was closer to 0.015, which was exactly matched the numbers that came out of French cruise ship on the Diamond which was exactly matched the numbers that came out of French
He also found that the disease was far more infectious than the government was letting on, which meant that interventions like masking and lockdowns were not likely to be effective, not because of any ideological reason, but just because they wouldn't work.
The disease is going to be, people are going to get it anyway.
So they suppress this.
They suppress true information because they were advancing this other idea that this was the most terrifying thing in history.
And they stood behind it for a year and a half and suppressed doctors who had an opposing view that they later conceded was correct.
That's why we have the First Amendment.
We have the First Amendment to prevent the government from creating a hegemonic opinion that no one can challenge.
And it was misty and overlooked exactly as the constitutional framers feared in this case.
And that is what is so terrifying about the situation.
And Matt, the thing that is so important in what you just said that I just have to draw out and emphasize is, it is not confined to one issue.
It's not like this was done as an emergency against election questioning of 2020 because of the insurrection, quote unquote.
It wasn't done as an emergency in response to the COVID pandemic.
It was a framework.
It is a framework that is being used in every major political debate.
We've seen the same kinds of censorship on the same basis when it comes to the war in Ukraine.
The first, in fact, where people were constantly being censored because they were challenging the NATO narrative about Ukraine.
Rumble is not available in France because France demanded that Rumble remove RT and other Russian state media as a condition to remaining in France.
And when Rumble said, we're not going to remove Russian state media because if people want to hear it, they should be able to, Rumble is unavailable in France.
This is a precedent that they have created.
And of course, after October 7th, It has been applied to Israel as well.
The first case the EU brought under their new censorship law to claim that X is violating EU law by allowing too much misinformation is based on an allegation that Elon Musk and Twitter did not censor enough anti-Israel content and therefore became guilty under the law.
It is a framework that is going to be applied to every "major political debate, which is what the purpose of censorship precedents are." If you don't mind, I have two other quick passages of New York Times article that I just have to share with you.
And to ask about. - No, it's amazing. - Okay, so I was saying before that like a bridge too far, the one bridge too far was when they tried to put that crazy resistance fanatic, that neurotic woman in charge of the Office of Disinformation under the Department of Homeland Security.
Everybody was like, this is a ministry of truth.
This is like what Orwell warned about explicitly.
It's a ministry of truth inside Homeland Security.
The New York Times is revisiting this as an example, not of the government going too far, but of the way in which right-wing fanatics like you and me prevented the government from doing the good things it should have done.
Listen to what they said.
Mr. Trump's allies have succeeded in paralyzing the Biden administration and the network of researchers who monitor disinformation.
Matt, we have paralyzed the Biden administration as well as these newfound experts who monitor disinformation.
Quote, officials at the Department of Homeland Security This is who the New York Times is upset are being impeded.
Officials at the Department of Homeland Security and the State Department continue to monitor foreign disinformation, but the government has suspended virtually all cooperation with the social media platforms to address posts that originate in the United States.
Quote, there's just a chilling effect on all of this.
Matt, the New York Times is angry that Homeland Security is no longer allowed to monitor and control domestic speech inside the United States.
Homeland Security Advisory Board on disinformation.
Quote, nobody wants to be caught up in it.
Matt, the New York Times is angry that Homeland Security is no longer allowed to monitor and control domestic speech inside the United States.
What is there to even say about that?
I mean, Glenn, I'm sure you've had this experience of having discussions with people who used to be down the middle, sort of ACLU liberals, and you would say something like, you know that if you're not a leader, you're not a leader.
Foreign intelligence services like the CIA or even the State Department are by statute prevented from engaging in changes of propaganda.
They are not allowed to do state-sponsored censorship within the United States, and yet they have these whole formalized structures that they want to impose.
How can you be in favor of that?
But there is, there's a whole new generation of people who believe that that's totally appropriate.
They just cast it as a Trump, anti-Trump issue.
I mean, the lengths they went to describe somebody like me as a Trump ally.
Solely because you believe in free speech.
Matt, everything, this is the thing I think is so important to understand.
Every last issue in our political discourse is viewed through one prism and one prism only.
Is it pro-Trump or anti-Trump?
That is why, as long as you, if you can be a neocon, who ten years ago liberals were calling Nazis for supporting torture chambers and CIA black sites and Guantanamo and due process free imprisonment, people like Liz Cheney or Nicole Wallace, And as long as you criticize Donald Trump but don't change any of your other views, liberals adore you.
The only prism that they understand, they're monomaniacally obsessed with Donald Trump.
Everything is pro-Trump or anti-Trump.
And because, and this is why this New York Times article is so important, they see free speech as a major obstacle to stopping Trump.
Because censorship is their main tool to stop Trump.
The only people they believe would advocate for free speech are people who love Donald Trump.
This really is how they think.
Yeah, and just two quick things about that.
Please!
First, you know, obviously the co-author of this piece, Jim Rutenberg, wrote a very, very influential piece in the New York Times in 2016 called Trump is Testing the Norms of Objectivity in Journalism, which basically said we had to change the way we do business, that we no longer had to worry about just printing facts, but printing facts that Quote, stand up to history's judgment.
If you remember, Glenn, it was kind of a clarion call telling us that we had to accept a more oppositional role and understand that the content that we printed was important because Donald Trump was such a big threat that we had to choose what we covered and what we wrote accordingly.
Right.
And so he makes it very plain in this piece That he talks about how a central part of Trump's social media, and so therefore, gaining some control over social media, it's almost like they assume that the readers will come to the correct conclusion and believe, well, if central element of Trump's success is social media.
It follows, right, like three dots, therefore, we must have more control over social media.
They think like that.
I mean, this is actually how they think.
There is no longer any First Amendment free speech principle involved.
I mean, I'm not a Trump supporter, but you cannot throw out the First Amendment because And this is how they think.
It's unbelievable the way the business has turned on a dime over this issue.
Right.
I mean, just the fact that they can say with a straight face, one of the reasons it's so important that we stop Donald Trump and imprison him before the election is because if he gets into power, he may politicize the Justice Department and try and turn it against his political opponents.
And there's nothing in their brain that alerts them to the contradiction in that formulation shows you how far gone they are in terms of only seeing everything as either pro-Trump or anti-Trump.
And as long as it's pro-Trump, whatever it is, it's justified.
I love this New York Times article so much and I hate it so much too and I could spend all night just going over every paragraph with you because it's just filled with every pathology and sickness of the liberal mind in the United States but I just can't not do this one last one and then I'm gonna let you go because
This one, okay, so as you know, Matt, because we've talked about it so often and you wrote about it and lots of other people did, I left The Intercept in 2020 when they refused to allow me to publish an article analyzing the contents of what was on Hunter Biden's laptop and what it said about Joe Biden and his ethics because a week earlier
They had published an article, just like every other media outlet did, saying, citing the CIA, that the Hunter Biden laptop and the materials on it were Russian disinformation and therefore could not be trusted.
Now, as everybody knows, that was a lie.
The materials on the Hunter Biden laptop were completely authentic and genuine down to the last comma.
It was obvious back then.
That's why I was willing to stake my journalistic reputation on it.
But everybody admits it now, including the New York Times and everybody else.
And yet nobody ever went back and said, hey, remember when we spent weeks right before the 2020 election telling you that the Hunter Biden materials were Russian disinformation because the CIA told us that?
It turned out that was false.
Okay, I try to let that go, the fact that they will never retract that.
But listen to this, Matt, the Hunter Biden laptop episode is cited in the New York Times as an example of why censorship is so important.
Here's what they say, quote, social media With its pipeline to tens of millions of voters presented powerful new pathways for anti-democratic tactics but with far fewer of the regulatory and legal limits that exist for television, radio, and newspapers.
So they're saying that- What are they talking about?
They're saying that the problem with the internet is it's too, at least with radio and television, you had a small number of corporations that could be controlled by the government.
And the problem with the internet is there's not enough control.
There's too much free speech.
And then here's their example.
Quote, the pitfalls were clear during the 2020 campaign.
Platforms had rushed to bury a New York Post article about Hunter Biden's laptop out of concern that it might be tied to Russian interference.
Conservatives saw that as an attempt to tilt the scales to Mr. Biden.
Administration officials said they were seeking a delicate balance between the First Amendment and social media's rising power over public opinion.
Quote, we're in the business of critical infrastructure, and the most critical infrastructure is our cognitive infrastructure, said Jen Easterly, the director of the Cybersecurity and Infrastructure Security Agency, whose responsibility includes protecting the national voting system.
Quote, building that resilience to misinformation and disinformation, I think, is incredibly important.
Matt, they are lamenting the fact that the government now has a harder time doing things like burying the Hunter Biden story, because apparently they think... A true story.
A true story, because implicit in that is that that was a Russian disinformation plot, and the government needed to protect us by burying it.
And they didn't just bury it, by the way, they censored it.
Facebook algorithmically suppressed it up until the election.
Twitter actually brute censored it based on a lie.
And the New York Times, Matt, to this day is still citing that as an example of the kind of reporting we need the government to suppress.
This is an explicit pro-censorship Manifesto from the New York Times.
And I understand that political operatives will want to censor.
That's why we need a First Amendment to bar them from doing so.
Political officials, government officials always want to censor.
The thing that has amazed me the most that I find absolutely surreal is that 40 years ago, this newspaper was going to the Supreme Court to protect I mean, of all the things that we live through that are absolutely bizarre, to me at least, that is the most bizarre and disturbing.
not op-eds, but news articles that have no purpose other than to discredit free speech advocates as far-right extremists and to herald government censorship as the only thing that can save us.
Is, I mean, of all the things that we lived through that are absolutely bizarre, to me at least, that is the most bizarre and disturbing.
How do you feel about that? - Yeah, no, Glenn, I'm with you on that.
I mean, first of all, that topic came up in when I testified before the House.
There was a question, I believe it was from one of the representatives from Massachusetts, who said, well, aren't you concerned that this would The 2016 hack and leak operation, you're basically talking about the Hunter Biden story, that so affected that election.
And I had to interject and say, that story was true.
Whatever you care about the source of the WikiLeaks disclosures, There was nothing inaccurate about it, but their minds are now wired to think that even something that is true can be misinformation or disinformation or malinformation.
So in this case now, even though the disinformation was actually on the part of the CIA, they were the ones who put out the false story that this story came from the Russians, and that was accepted by all the journalists who covered that story.
They're worried about the true part, which was the story that Miranda Devine at the New York Post put out.
Twitter didn't just suppress the story, they blocked people from sending it to each other via direct message, which is a tool they only used against child pornography, usually.
But the remarkable The thing about this is that it shows the incredible lengths to which they will go to suppress something that's accurate in the name of national security, and they no longer understand, I think, the difference, like, why we allow true information to get out there, because they don't trust the public to make the right decisions when they see something that's true.
So, obviously, the public, they're children.
Yeah, exactly.
And I think, like, you know, I think it's important to note, because we're talking about liberal orthodoxy, I think some people are surprised to hear justices they regard as conservative, like Brett Kavanaugh, Amy Coney Barrett, even to some extent John Roberts, seemingly sympathetic Not necessarily as much as, say, Khadija Brown-Jackson, but still somewhat sympathetic.
And I think it's very important to note that this isn't so much of an anti-Trump sentiment The fear is that people will become too populist, meaning they'll become too independent of institutions of authority, and they need to be constrained, they need to be controlled, they can't be given too much freedom.
And there are a lot of people embedded in the conservative establishment who look at the Trump movement and the populism that it's provoking, and any kind of anti-establishment ideology, including on the left, And that's their real enemy.
And so it shouldn't surprise people that kind of traditional conservatives like Mitch McConnell and Mitt Romney, and it's not surprising that some of the justices on the Supreme Court who are regarded as conservative are a lot more like Mitt Romney and Mitch McConnell than they are, say, like Donald Trump, also view this kind of wild west on the Internet as being too also view this kind of wild west on the Internet as being too dangerous to permit and therefore are sympathetic to government attempts to try and put some also view this kind of wild west on the internet as being too dangerous to permit and therefore are sympathetic to government attempts to try and put some limitations on it.
And in that, they share the same views as the New York Times, which happens all the time these days, that the two establishment wings of all political parties find themselves much more in agreement than not.
And I think what that means is that left-right is not really the relevant metric any longer.
It's more, are you within that establishment?
Do you want to strengthen it?
Do you believe in its right to control?
Or do you see it as something to be subverted and something to be liberated from?
And we just kind of have the wrong vocabulary that if you're on the outside of that establishment and see it as a threat and something to be liberated from, you now get described as being right-wing.
It's just the wrong vernacular.
But at the end of the day, I don't really care about the labels.
I care about these values.
Yeah, and Glenn, just quickly, I know we're running out of time, but you went through this with the Snowden reporting, the hostility that you got from the national security apparatus was really aimed at the idea that the public They're not entitled to get even information that might upset them, because there needs to be this establishment control over information.
There are some things that the public just can't handle, right?
This was this attitude that was very pervasive, and you saw it even in some prominent journalists who gave you a hard time and suggested that you were an accomplice to crime and that sort of thing.
Well, here, you know, one of the things we found in the Twitter files, you know, there was research backing this Aspen Institute tabletop exercise where some of the nation's most prominent national security journal there to do a tabletop planning routine there was research backing this Aspen Institute tabletop exercise where some of the nation's most prominent national security journal there to do a tabletop planning routine for the potential release of a story about Hunter
Biden and Burisma, where one of the central tenants of the meeting was rejecting what they called the Pentagon Papers principle, which was this idea that So essentially, they've convinced the press to consider itself part of the establishment now.
Like, we are, at the New York Times and the Washington Post, we're part of these guardians, this vanguard that decides what the public can and cannot handle.
We don't want to be a conduit for things that might rile up the population.
And, you know, 40, 50 years ago, when Cy Hirsch was considered the great journalist of our time, They've had that attitude, but now this is the prevailing attitude among establishment journalists.
And as you know, Glenn, it's just such an incredible revolutionary change in how we look at things that it's stunning to watch, but never more forcefully expressed than in this piece, as you put it.
Yeah, and I'm sorry, I just need to add one thing, because I could go on all night about this, that honestly what really happened inside these journalistic institutions, as you all know too, Is that in the age of Trump, they jettisoned every long standing principle.
I mean, they cheered a blogger who turned over her own source voluntarily to the FBI, when for decades, it was a sterling principle of journalism, that even if the FBI subpoenas you and forces you to turn over your source, you go to jail before doing it.
But one of the things that... It was career ending to think, give up a source.
Yeah, to let alone to do it voluntarily to beg them and they cheered her for doing it because they saw it as a strike against Trump.
But the big thing that they changed is exactly what you just said, which is journalists never previously cared about a source's motives or who the source was.
As long as the information was genuine and in the public interest, that's all you cared about.
And one of the things that happened in 2016, as you probably remember, was everybody was desperate to get their hands on Trump's tax returns.
And somebody, and to this day, the New York Times has no idea who, took part of Trump's tax returns from an old year, 2012 or 2013, dropped it in the mail and sent it to the New York Times.
The New York Times got the story, got the tax returns, and they verified it, and they wrote about it.
They published it.
And I remember the journalist who was the lead journalist, David Barstow, who won two Pulitzers for other reporting, went on NPR, and NPR said to him, how can you publish this information when you have no idea who the source is?
And he said, journalists don't care about the source.
We don't care.
The source in Watergate was motivated by petty and vindictive anger over her being passed over by Richard Nixon for a promotion to the FBI director.
Sometimes sources are terrible people.
Sometimes they have terrible motives.
All you care about is, is the document genuine, and is it in the public interest?
And these institutions, after 2016 and WikiLeaks, changed their internal policy to say, That if there's information that we get, even if it's genuine and even it's in the public interest, we should consider not publishing it if it comes from a source with bad motives, namely a foreign source trying to help Trump win.
They explicitly changed the core standards that govern journalism for decades in the name of Matt, like I said, we could go on all night.
helped Donald Trump win or his opponent lose.
That was what they did with the Hunter Biden story.
And it's what they've done continuously and will continue to do because they now really don't even pretend anymore that their mission is journalism.
They see their mission as stopping Trump and everything else is a means to that end.
Matt, like I said, we could go on all night.
We've done so on the phone before, but we have to just kind of arbitrarily cut it off.
I know you have more to say instead of why, but that New York Times article, I'm so glad that I feel cathartic having gone over that with you.
You're obviously the perfect person to come on as well and talk about this relationship between big tech and the government that I think the Supreme Court We're really misunderstood.
Hopefully, there's still time for them to change their mind.
I don't expect them to do so.
Keep up the great work.
I know people can find you still at Racket News on Substack, where you're continuing to break stories and publish important pieces.
And I know a lot of people who watch the show are already reading you.
And if you're not, you should.
Thank you so much, Matt.
Have a great evening.
You too, Glenn.
Take care.
All right, bye.
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