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Conservatives are pushing a story about Biden, covid-19, and content moderation on social media platforms in both the court of public opinion and the Supreme Court. A new report shared exclusively with The Verge and set to be released by a Republican-led House subcommittee brings the congressional effort to establish this narrative in line with a pending Supreme Court case, focusing on allegations that the Biden administration violated the First Amendment in its backchannel communications with platforms like Facebook.

That the communications happened in the first place is not illegal, though if they rise to the level of coercion — the issue that is in front of the Supreme Court now in Murthy v. Missouri — it would be. 

Internal communications at Meta (then Facebook), Google, and Amazon from 2021, cited in the report, show serious pressure from the Biden administration pushing the platforms to do more to combat covid and vaccine misinformation. But the documents also show executives who at times seemed unwilling to cave to pressure, at other points convinced by certain arguments, and sometimes angered and off-put by the administration’s approach.

Newly released private conversations among Meta’s top executives, for example, give a new glimpse into how the company navigated a tense relationship with the Biden administration in the early days of the campaign to vaccinate Americans against covid-19, particularly after President Joe Biden himself accused the company of “killing people.”

The report comes after House Judiciary Chair Jim Jordan (R-OH) subpoenaed Google-parent Alphabet, Amazon, Apple, Meta, and Microsoft last year for their communications with the federal government, saying at the time he wished to “understand how and to what extent the Executive Branch coerced and colluded with companies and other intermediaries to censor speech.” Jordan also chairs a subcommittee established for this purpose — the House Judiciary Committee’s Select Subcommittee on the Weaponization of the Federal Government — and nearly hosted a vote to hold Meta CEO Mark Zuckerberg in contempt of Congress for failing to produce documents. He ultimately called it off, saying the company had begun to cooperate more.

Amazon, Google, and Meta declined to give comment for this article. The Verge also reached out to the White House and Democratic Judiciary Committee staff for comment on the report but did not receive a response in time for publication.

On Wednesday, the select subcommittee held a hearing with two of the former Biden administration officials referenced in the documents: Andy Slavitt and Rob Flaherty. In their prepared statements, they both emphasize that their communication with social media companies was meant to understand how they were implementing their own policies around misinformation. Slavitt, the former senior advisor to the Biden covid response team, said the administration’s interactions with tech companies were “entirely consistent” with the First Amendment. He added that “we had no intention of coercing social media companies into taking any action. And I never received any indication that our dialogue was ever interpreted that way.”

“Urging media to publish accurate information is nothing new for communications staffers,” said Flaherty, who served in the Biden administration as director of the White House’s Office of Digital Strategy. “To be clear, these companies are the ultimate decision makers about what goes on their platforms. But that does not mean that the White House, through its communications office, cannot ask — even implore — media companies to address misinformation on their platforms.” He went on to add that legislators, companies, advocacy groups, and others “likewise try to persuade media to see things their way.”

The committee’s report highlights instances that it characterizes as pressure or coercion from the Biden administration to censor speech on platforms such as Facebook, Google’s YouTube, and Amazon. While Jordan had initially set out to show “collusion” between big tech platforms and the administration to censor conservatives, the published report has leaned away from the word “collusion” in favor of the word “coercion.” (“Collusion” appears just once in the 90-page report.)

This matters because a Supreme Court case about the Biden administration’s alleged coercion of social media platforms into certain kinds of content moderation decisions is pending a decision right now. Murthy v. Missouri is all about where to draw the line between (entirely legal) persuasion from the government versus (illegal) coercion. The shift in language means the Jordan report becomes more aligned with the core arguments in that case.

A “last ditch effort to influence the Supreme Court opinion in the case of Murthy v. Missouri

At Wednesday’s hearing, Select Subcommittee Ranking Member Stacey Plaskett, a Democrat who represents the US Virgin Islands, accused Republicans of holding the hearing now as a “last ditch effort to influence the Supreme Court opinion in the case of Murthy v. Missouri.

Plaskett said committee staff gathered “hundreds of hours of testimony” showing social media companies saying they “evaluated the content against their own internal policies” and “only took action if the content violated those policies.”

But Republicans, Plaskett said, have repeatedly declined to make the testimony public and declined to give Democrats “hundreds of hours of video taken during those investigations.” Plaskett asked to enter several transcripts of interviews with tech executives into the record, but there was an objection. Jordan said that they “plan to release all of these once we’ve talked to everyone we’ve interviewed and their counsel to make sure that they’re comfortable with it.”

What did get released is an intriguing glimpse into how social media policy gets made. But still — is any of this coercion? In one WhatsApp exchange, as apoplectic Meta executives seethe over a Biden comment throwing them under the bus, they fling around phrases like “engage with them” or “engage in good faith” or “our working relationship” when describing their ties to the government — remarkably anodyne characterizations despite the otherwise high emotion in the chat.

Ultimately, this question — whether any of the pressure from the White House was coercion — is something the Supreme Court will be answering in the coming months. 

A ‘knife fight’ after Biden’s Facebook comment

The committee’s report reveals previously private communications between top executives at Meta, including one that shows how they navigated its most pointed and public critique from the country’s leader. 

A July 2021 WhatsApp exchange reveals how Meta’s top executives reacted to President Joe Biden’s statement that Facebook is “killing people” based on its handling of misinformation around covid. He later walked back the remark, saying that “Facebook isn’t killing people; these 12 people are out there giving misinformation,” pointing to an administration report on vaccine misinformation. “That’s what I meant.”

Before Biden’s walk-back, however, Facebook executives were incensed by the comment. In WhatsApp messages the day of Biden’s initial remark, then-COO Sheryl Sandberg wrote, “Ugh on Biden today.” Meta president of global affairs Nick Clegg responded, “The behavior of the WH over the last 24 hours has been highly cynical and dishonest.” 

Sandberg told Clegg she wanted Facebook’s response to be “as aggressive as you can live with,” suggesting an on-the-record statement and messaging that Biden was using Facebook as a scapegoat. Clegg said, “[We’re] doing all those things and more — it’s a knife fight.”

Zuckerberg chimed in, asking, “Can we include that the WH put pressure on us to censor the lab leak theory?” But Clegg threw cold water on that, saying, “I don’t think they put specific pressure on that theory — it was always ‘do more’ generic pressure.” 

Joel Kaplan, a public policy executive at the time, presciently warned against suggesting Facebook censored the lab leak theory at the White House’s behest because it would “supercharge” conservative critiques that it’s “collaborating” with the Biden administration “to censor speech.” (Kaplan previously served under the George W. Bush administration. While employed as a Facebook executive, he sat behind Brett Kavanaugh in putative support during the Congressional hearing over the Supreme Court nominee’s alleged sexual assault of Christine Blasey Ford.) 

“If they’re more interested in criticizing us than actually solving the problems, then I’m not sure how it’s helping the cause to engage with them further,” Zuckerberg wrote

Sandberg and Zuckerberg both referred to the Biden administration as “scapegoating” Facebook to cover “their own missed vaccination rates,” as Sandberg put it. That language appeared in coverage following Biden’s remark.

The exchange also appears to show that, rather than feeling beholden to Biden’s will, the incident actually pushed Facebook’s top executives to want to engage less with the federal government. “If they’re more interested in criticizing us than actually solving the problems, then I’m not sure how it’s helping the cause to engage with them further,” Zuckerberg wrote. 

Clegg said he agreed that “if this is the way they want to play it we have little incentive to engage in good faith with them.”

“We definitely need to reset our working relationship with them,” Zuckerberg said.

Sandberg added, “And another thought. Did Trump say things this irresponsible? If Trump blamed a private company not himself and his govt, everyone would have gone nuts.” 

In 2018, CNN ran an article titled “Amazon and 16 other companies Trump has attacked since his election.” Facebook is included.

Fact-checking the lab leak theory

Another exchange among top executives at Meta sheds light on how the company navigated changing opinions among the third-party fact-checkers that it relied on to inform its policies during the pandemic. The lab leak hypothesis — the theory that the covid-19 virus originated from a lab leak in Wuhan, China — was, according to scientific consensus at the start of the pandemic, a wild conspiracy theory. Over time, the lab leak theory — while still a minority opinion in the scientific community — is no longer stigmatized as pure fabrication.  

In June 2021, a trust and safety executive explained in an email to Zuckerberg that some of the third-party fact-checkers they relied on either rescinded their false rating or acknowledged uncertainty about the lab leak theory. The executive says that the company had removed posts including any of five claims rated as false by its fact-check network in February 2021, including that the disease was man-made or engineered by a government or country. That decision, at the time, came “in response to continued public pressure and tense conversations with the new Administration,” which, based on the timing, would have been the Biden administration. 

But, the trust and safety executive added, Zuckerberg had also asked the team back in February to review the decision further into the year “to determine if we should revert to reduce & inform” rather than remove the posts.

Zuckerberg wrote that the new development “seems like a good reminder that when we compromise our standards due to pressure from an administration in either direction, we’ll often regret it later.”

Conservatives will no doubt zero in on the phrase “compromise our standards due to pressure from an administration” — that part seems to imply that Meta was pressured initially into flagging the lab leak hypothesis as misinformation — but the following clause, “we’ll often regret it later,” may be just as indicative of how Meta relates to the government. Buyer’s remorse is only possible when you’re free to make (or not make) a purchase.   

From collusion to coercion

The committee says it’s reviewed “tens of thousands of emails and other relevant nonpublic documents” that it says show that the “Biden White House coerced companies to suppress free speech.”

That framing is significant since it’s also the focus of a major Supreme Court case expected to be decided by the end of June that will have major ramifications on the federal government’s ability to communicate with social media firms.

The committee’s report focuses more on the coercion element rather than collusion — again, a word only used once in the document. That makes the legal questions around the Biden administration’s engagement with social media companies very similar to those debated before the Supreme Court earlier this year in Murthy v. Missouri. The central issue in Murthy is whether the Biden administration violated the First Amendment by coercing social media companies — namely, by flagging posts that the government itself deemed as harmful (e.g., medical or election misinformation) and exerting pressure to remove them. 

A key consideration in that case is whether this government engagement amounted to unconstitutional coercion of speech (known as jawboning) or permissible persuasion. In oral arguments, justices on both sides of the political spectrum seemed worried about placing broad limits on how tech companies could communicate with the government and questioned the cause-and-effect link the Republican states drew to the Biden administration’s pressure and platforms’ content moderation policy decisions.

The documents in the report may raise the same causal questions for some: did platforms feel coerced to change their policies, or were they ultimately persuaded by the arguments they heard from the government? Documents from Amazon and YouTube also show that the companies seemed to feel pressure from Biden administration officials about their covid content moderation choices but also, at points, deflected their suggestions or made changes to their policies months after the administration engaged them.

YouTube, for example, shared a new proposed policy around vaccine safety content in September 2021, according to the report, after months of engagement with the administration. Back in July of that year, YouTube’s public policy team did not commit to a Biden administration official to any new policies and responded to a question about what it calls “borderline content” with stats about the low reach that content already receives. On September 21st, a member of the YouTube policy team asked White House official Rob Flaherty about dates to preview and seek feedback on its “new policy to remove content that could mislead people on the safety and efficacy of vaccines.” On September 29th, after the policy was released, Flaherty apologizes for failing to respond to the previous message but says he “saw the news” and that “at first blush, seems like a great step.”

During arguments in Murthy v. Missouri, Justice Elena Kagan was skeptical of a monthslong gap between the Biden administration asking Facebook not to distribute a post about vaccine hesitancy and the platform allegedly blocking a health group as a result.

“A lot of things could happen in two months,” Kagan said.

We know Jordan — who chairs the committee and subcommittee that released this report — is invested in the outcome of the Supreme Court case because he actually attended the oral arguments. An opinion is expected by the end of June. Meanwhile, House Republicans are not waiting for the Supreme Court — they say in the report they are working on new legislation, like the Censorship Accountability Act, which would let individuals sue executive branch officials for damages for censoring their speech.

By rb8jg

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