The mainstream media is continuing to be bad at their jobs. This time, they are screwing up a recent US Supreme Court ruling story.
For a while now, we’ve been covering the mainstream media generally being bad at their jobs when it comes to covering technology related stories. Their coverage, at times, has gotten so bad, it crosses the line to being just plain unethical where they have been caught repeatedly knowingly lying about the nature of the Online News Act (Bill C-18) – a topic they ought to know something about given that it revolves around their very own businesses, so ignorance isn’t really an excuse on that one.
In fact, it was only yesterday where we took one mainstream news outlet to task for getting a lot of facts wrong about the Online News Act, correcting their many errors and debunking some long debunked and tired disinformation on that story.
One thing we’ve noted off and on is the fact the mainstream media being lousy at their jobs (intentional or not) isn’t exclusively tied to their coverage of the Online News Act. It’s with almost anything tech related in general – especially when it comes to the intersection of technology and the law. Lucky for you, however, you have websites like ours who are willing to periodically correct the record when the mainstream media falls down on their job yet again.
I know some people out there think that I’m being especially hard on the media for all of their mistakes in this area. Some might go so far as to say my coverage over the last few months months is the result of some sort of grudge rather than an interest in accuracy (it’s the latter). It can be hard to say otherwise when I’m one of the few in recent months correcting the record put out by the mainstream media. So, it was especially timely to see others picking up on the mistakes made by mainstream media when it comes to technology policy related issues. This story comes from the United States.
To set things up, the not necessarily thorough, but basic level understanding of the case is that right wing conspiracy nuts were publishing conspiracy theories on topics that are, well, the usual suspects (ala COVID-19, vaccines, etc.) When their material was taken down, those right wing conspiracy nuts claimed conspiracy and argued that it was the Biden administration that somehow silenced them. So, in a bid to replicate the “bold strategy, Cotton” meme, they decided to sue to claim that the Biden administration made social media remove their speech – all with pretty much no evidence to back up those claims.
Mike Masnick of Techdirt has a great breakdown of how we got here and what the US Supreme Court actually ruled”
We’ve talked about the Murthy v. Missouri (originally Missouri v. Biden) case for quite some time now. In this case, Missouri and Louisiana, along with a few rando nonsense peddlers online, had sued the Biden administration for supposedly convincing social media companies to remove their speech. While there were some examples of social media companies doing basic content moderation and there were examples of government officials making statements about content moderation, the case did not have any actual evidence of the government coercing websites to remove or limit the reach of the speech.
And that, as the ruling notes, is kind of the whole ballgame.
As we’ve discussed at great length, both of the following can be true: it absolutely should violate the First Amendment for government officials to threaten and coerce private parties to get them to remove speech and nothing in this case showed any form of actual coercion.
What it showed was a bunch of wild ass conjecture, ridiculously wrong claims, and laughably stupid interpretations of basic everyday content moderation and information sharing. And yet a very partisan district court judge bought every single loony claim and issued the most ridiculously stringent opinion a year ago, insisting that basically every content moderation decision on social media could be traced back to government threats, and ordering nearly all communication between the government and websites to stop.
The 5th Circuit recognized that the lower court went overboard and tried to clean things up, but issued multiple rulings that just made another mess of things. It said that many of the government agencies hadn’t coerced, but some had, and left no clear rules or any way to understand when something crossed the line. In fact, the 5th Circuit ruling was so unhelpful that while their initial ruling said that the government’s Cybersecurity and Infrastructure Security Agency (CISA) had not coerced, a few weeks later they reissued the opinion changing just one paragraph to say that it had coerced. With no explanation.
So, if you were trying to understand where that line was and what coercion was, you had no chance.
When the Supreme Court heard the case earlier this year, it seemed clear that the Justices were perplexed as to how this case even existed. Justices across the political spectrum pointed out that the record appeared to be filled with nonsense and conspiracy theories and claims that made no sense at all.
And thus we get today’s ruling that rejects the lower courts and says none of the plaintiffs have anything that conveys standing to bring the case in the first place. The lower courts should have rejected the case quickly. We’ll have a more thorough analysis of the majority opinion (which was written by Justice Barrett, and signed onto by everyone except for Alito, Thomas, and Gorsuch) later from Cathy Gellis (who filed our own amicus brief in this case).
In short, if you are going to claim that the government has censored you, you need to back it up with, you know, actual evidence. You can’t necessarily expect the courts to just nod away when you push wild conspiracy theories and get a favourable ruling. This, honestly, is pretty reasonable and straight forward.
Unfortunately, members of the mainstream media took this seemingly relatively straight forward ruling and spun it in a wildly different direction that doesn’t even have any resemblance on what the court actually ruled. This, very understandably, left Masnick frustrated at the reaction of the mainstream media as he did his part to correct the record. From TechDirt:
In the wake of a Supreme Court case built on grifters peddling nonsense evidence, it’s only fitting that some media reporting is buying into the same fantasy-land narrative at the heart of the case. You would hope that professional journalists would do better, but apparently that’s too difficult.
But, the narrative that this case was about clear, proven censorship is so deeply ingrained in people’s minds that some are interpreting this case as blessing such censorship. The worst offender is the Daily Mail, perhaps not surprisingly, given their journalistic chops. This title is junk: “Supreme Court rules Biden administration can continue censoring conservative social media posts in major free speech case.“
And while the Daily Mail bylines the piece as if it’s off the AP Wire, there’s no way the text of the article is from the AP. Because it’s just blatantly wrong in such a dumb way.
The Supreme Court ruled that the Biden administration can keep censoring social media posts on topics like COVID-19 and election security.
That’s not, at all, what the Supreme Court ruled. It was pretty explicit that actual censorship still violates the First Amendment. All the court said was that the plaintiffs here failed to show anything even remotely resembling censorship, and thus they had no standing to sue.
The article also quotes Missouri Senator Eric Schmitt, who had been Attorney General of Missouri when the case was brought under his watch. Schmitt also flat out lies:
Former Missouri Attorney General – and now-Senator Eric Schmitt – reacted to the case saying it ‘wasn’t the outcome we were hoping for,’ but it is a ‘huge win’ because it ‘exposed nearly every part of the Biden Administration’s vast ‘censorship enterprise.’’
It literally did not. Like, literally. The whole point of the Supreme Court ruling was that Missouri and the other plaintiffs failed to expose any damn thing, and that’s why the case got rejected.
The Guardian, which one might normally think of as the political opposite of the Daily Mail, also got it wrong with this headline: “US supreme court allows government to request removal of misinformation on social media.”
I mean, it’s not quite as egregious as the Mail, but it’s still wrong. The court did not allow the government to request removal of misinformation. It simply said that those who brought that case failed to show any evidence of the government coercively making such demands.
Even in the US, CNN ran a misleading headline: “Supreme Court allows White House to press social media companies to remove disinformation.”
I guess maybe if your interpretation of “press” is “suggest to them content violates their rules” or that they should “consider if their rules are putting people at risk” then it’s sorta accurate? But “press” suggests an element of coercion, and that’s not at all what the Supreme Court allowed.
What Masnick provided was by no means comprehensive, but rather, a sample. We did some digging of our own and found plenty of headlines that were either misleading or just flat out incorrect. Here’s the headline from Politico:
“Biden admin can’t be sued for pressuring social media companies to remove misinformation, Supreme Court rules”
That’s not what the Supreme Court ruled here. If you are going to accuse the Biden administration of censorship, you need to bring evidence supporting your case. That’s what the Supreme Court ruled. Another article was published on Bloomberg which showed this:
The headline reads “Supreme Court Backs White House on Social Media Post Removal”. At best, this is highly misleading and there were countless ways to better word that. The second bullet point read “Court found that two states and five residents lacked standing” which is technically accurate, but when combined with the headline, it could very easily mislead the reader into believing that the ruling was that the two states and five residents didn’t have standing in challenging the Biden administrations censorship which is… not what happened. The legal standing refers to the lack of evidence that was provided in the first place.
Canadian media began picking up the story and the coverage, so far, isn’t all that better. A Globe & Mail report (paywalled) offered this in their opening paragraph:
The Supreme Court on Wednesday sided with the Biden administration in a dispute with Republican-led states over how far the federal government can go to combat controversial social media posts on topics including COVID-19 and election security.
Again, this ruling is about the plaintiffs lack of evidence. There was no evidence to suggest that the Biden administration was somehow silencing conservative voices on social media.
Given the terrible track record of the Canadian mainstream media on other area’s of the intersection of technology and the law, I have little faith that they are going to be any better with their coverage here. If the American mainstream media can’t even get a story about their own justice system right, what hope is there for the Canadian mainstream media to do any better? The mainstream media in this country getting this story right would be a surprise for me.
It’s worth pointing out that, for those who have followed me since before the Freezenet days, correcting the mainstream media really is nothing new.
When file-sharing was still the big tech story in the 2000’s and early 2010’s, one of the common ways the mainstream media screwed up was taking everything the major record labels and movie studios said about file-sharing at face value. If those corporate organizations said that one download means one lost sale, then the mainstream media automatically assumed this was true (even though it clearly was not). If those corporations said that piracy was killing the entertainment industry and that they were on the verge of folding overnight, the mainstream media published that as indisputable fact. People like myself had to sit here and correct that record over and over and over again.
Throughout the 2010’s when the stories of government surveillance really took off in the US, I personally saw the mainstream media simply taking the government at their word when they said that dragnet surveillance was the only solution to keeping people safe. This despite the complete lack of evidence to support such wild claims that defended the governments unconstitutional efforts. So, people like myself had to sit here and correct the record over and over and over again.
To that end, mainstream media has always been terrible at their coverage when it comes to technology related news. There’s mainstream media coverage defending efforts to break encryption. There’s mainstream media coverage that simply believes the hype that social media is some sort of inherent health risk akin to smoking. We’ve even seen mainstream media coverage that seemingly takes claims that AI will bring about the extinction of humanity at face value without really questioning those claims.
The mainstream media coverage seemingly advancing the theory (intentionally or inadvertently) that the Biden administration is somehow directly censoring conservative voices really is only an extension to all the other ways the mainstream media screws up technology related news stories. While this does bring a certain element of job security on my part, I personally would rather be covering stories about cool things technology has brought to society instead. Still, someone’s got to correct the media when they screw up and I may as well help the efforts on getting these stories right because few people are willing to withstand the slings and arrows of obviously misinformed people (another reason why I get really annoyed at the terrible quality of mainstream media reporting in the first place – people honestly believe those reports).
So, for those who are saying that I’m being too hard on the mainstream media and the accuracy of their reporting. It’s not just me that is noticing obvious mistakes here. Other’s are speaking up about this as well.
