Court Should Focus on Coercion in Murthy v. Missouri

(Rafael Henrique | Dreamstime.com)

On Monday, the Supreme Court held oral argument in Murthy v. Missouri, a case in which the states of Missouri and Louisiana,  and several private plaintiffs argue that the Biden Administration pressured social media firms into taking down posts they deemed to be “misinformation.” Most of the justices emphasized that at at least some degree of coercion is required before courts can intervene to block the government’s actions in such a case.

If government officials are merely resorting to persuasion, however vehement, that doesn’t by itself violate the First Amendment. Indeed, such suasion is is normal behavior for public officials. As Justice Brett Kavanaugh put it, “my experience is[that] the United States, in all its manifestations, has regular communications with the media to talk about things they don’t like or don’t want to see or are complaining about factual inaccuracies.” Kavanaugh was likely referring to his service as a White House official in the George W. Bush Administration.  Justice Ketanji Brown Jackson, also a former executive branch official made a similar point:

[L]ike Justice Kavanaugh, I’ve had some experience encouraging press to suppress their own speech. You just wrote about editorial. Here are the five reasons you shouldn’t write another one. You just wrote a story that’s filled with factual errors. Here are the 10 reasons why you shouldn’t do that again. I mean, this happens literally thousands of times a day in the federal government.

Cynics might argue that Kavanaugh and Jackson are biased by their own experience in government service. But this distinction between suasion and coercion is inherent in the text of the First Amendment. The Free Speech Clause doesn’t restrict any and all government efforts to constrain speech. Rather it, bars government actions “abridging the freedom of speech” (emphasis added). If the state—or anyone—persuades a private entity to cut back on speech voluntarily, the freedom of speech has not been abridged, even if the total amount of speech may be reduced.

Louisiana Solicitor General Benjamin Aguinaga, arguing for the plaintiff states, suggested things are different in the case of social media firms, because here the government is urging them to cut back on the speech of “third parties” (users of their websites) rather than their own. But that’s no different than if a government official I criticize on this blog contacts Reason and urges them to stop allowing me to post on its site because (they claim) my critiques of government policy are inaccurate and unfair. As long as there is no coercion, neither my freedom of speech nor Reason’s would have been violated if Reason decides to bar me from the site. I only have a right to post here in so far as Reason lets me, and barring me (should they choose to do so) would be an exercise of their freedom speech.

This still leaves the question of whether various federal agencies did in fact coerce social media sites into barring speakers from their sites. As I wrote in a post about the Fifth Circuit decision the Court is reviewing here, I think the answer is likely “yes.” But I admit there can be some difficult factual issues in cases like this. Clever officials my rely on veiled threats rather than open ones. Context is critical in assessing such situations.

Importantly, the Fifth Circuit found that officials did in fact threaten to punish social media firms that refused their demands:

[T]he officials threatened—both expressly and implicitly—to retaliate against inaction. Officials threw out the prospect of legal reforms and enforcement actions while subtly insinuating it would be in the platforms’ best interests to comply. As one official put it, “removing bad information” is “one of the easy, low-bar things you guys [can] do to make people like me”—that is, White House officials—”think you’re taking action.”

That sure seems like coercion to me! Importantly, the people making these statements were officials whose superiors had the power to carry out at least some of these veiled threats. The evidentiary and interpretive issues here are—as noted in my previous post—similar to those that sometimes arise when organized crime organizations, like the Mafia, engage in extortion or protection rackets:

It’s noteworthy that the record analyzed by the [Fifth Circuit] doesn’t seem to include any examples of direct, unequivocal threats, such “If you don’t take down X, I will inflict punishment Y.” But as the court recognizes, context matters. If a representative of a Mafia boss tells a business owner to pay protection money, because “that’s one of the easy, low-bar things you can do to make people like me and the Don happy,” the context strongly suggests a threat of coercion. The same thing is true if a representative of a government agency with regulatory authority over Twitter or Facebook uses similar language to pressure those firms to take down material.

If it is indeed true that government officials “threatened…. to retaliate against inaction,” then the Supreme Court should uphold the Fifth Circuit injunction against the defendant agencies, at least in so far as that injunction bars coercive pressure. As discussed in my previous post, I am far less convinced that the Fifth Circuit acted appropriately in also enjoining “significant encouragement” defined as “a governmental actor exercis[ing] active, meaningful control over the private party’s decision.” If the private party gave the governmental actor such control voluntarily, that may be bad media ethics, but it is not a violation of freedom of speech.

For those keeping score, my position here is exactly the same as in the Texas and Florida social media law cases argued before the Supreme Court last month. There, social media firms urged the Court to strike down state laws requiring them to host speech the firms object to. These laws clearly qualify as government coercion, and should be struck down. On the other hand, if Texas and Florida officials had merely sought to persuade Facebook and Twitter to host various types of right-wing speech voluntarily, there would be no violation of the First Amendment there either.

In sum, the First Amendment bars government from coercing social media firms to either post speech the firms object to (as Texas and Florida seek to do) or take down speech the firms would like to allow (as various federal agencies apparently did). On the other hand, both federal and state officials have every right to urge firms to put up or take down posts voluntarily.

Much of Monday’s oral argument was devoted to questions of whether the plaintiffs had standing. My impression is that the justices could potentially go either way on that question, though I myself think at least some of the plaintiffs do have standing (because their speech on social media got restricted in response to coercive pressure brought to bear by government agencies). If the Court rules the private plaintiffs lack standing, it may be tough sledding for the state governments, as the Supreme Court has not been very friendly to creative state standing claims in recent years. I will leave the details of these standing issues to other commentators.

If the Court reaches the merits, I hope they make clear that coercion is the appropriate standard, but also that veiled, but credible threats of retaliation by government officials qualify as such coercion.

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Liberty Counsel Dude Mat Staver Wants You To Stop Heating Your Home With Dead Babies

Mat Staver, YouTube screencap

Well! It looks as though Marjorie Taylor Greene isn’t the only one trying to make the fetal remains organ harvesting nonsense come back into style (we would prefer gum, but OK).

The Liberty Counsel’s Mat Staver, surely by pure coincidence, is also trying to bring it back into the national spotlight. Last week, he announced Liberty Counsel will once again ask the Supreme Court to take up the case of Sandra Merritt, one of the weirdos who published deceptively edited videos to make it look like Planned Parenthood was getting rich by illegally selling fetal remains.

And if you thought that was going to be the weirdest part of that announcement,you would be very wrong.

Via Mat Staver:

The Jezebel spirit is alive and well in America. The altars to the demon Baal/Beelzebub are protected by government officials who will persecute any who attempt to stop the bloodshed of innocent children sacrificed under Jezebel’s watchful eyes.

So glad to hear that Jezebel (our once-upon-a-time sister site) is doing well after having been bought by Paste!

That being said, I’m not sure how Ba’al — another name for Hadad, a deity who was like Zeus but for Canaanites, and also a general prefix for many other Levantine deities — got to be a demon in Christianity, but that seems rude. I’m not gonna go and start a religion and call one of the demons in my religion Jesus. “Mat Staver,” though, I would consider.

In fact, let’s let the demon Mat Staver continue!

Tomorrow, Liberty Counsel will file our reply to the U.S. Supreme Court requesting the Court take up the case of pro-life hero Sandra Merritt — the brave grandmother whose undercover journalism forced America to admit that not much has changed since Jezebel’s time.

Then, as now, the bodies of innocent children are used to heat our houses (as with the D.C. clinic) and fuel our medicine.

Good lord these people have so many made up things!

There was, indeed, some weird lady who testified, with literally zero evidence, that an abortion clinic in Washington, DC, was throwing fetuses in medical waste bins and then burning them for fuel.

Now, medical waste has been used as a cheap fuel source for decades — though it’s not very good for the environment — but there’s only one incident in the US of fetal remains maybe being involved in this and it was when a county in Oregon got some boxes of medical waste from British Columbia that may have had some fetal remains in them.

The altars are different now than in Jezebel’s day. Sacrifices once held in public now take place behind the closed doors of abortion clinics. Then, as now, the government protects the altars where the killing takes place.

Soldiers who once guarded Baal’s and Molech’s priestesses have been replaced with law enforcement officers standing guard to ensure the endless line of children being led to the slaughter continues uninterrupted.

Okay, just to be clear, we’re not the ones who think fetal remains are magic or somehow different from other forms of medical waste. If medical waste were a sustainable source of fuel that did not potentially release toxic substances into the air, I would be all for it, so long as people consented to having their fetus/leg/tumor used for this purpose.

We’re also not the ones bringing religion into this. We don’t have altars, and if law enforcement officers are standing guard outside of clinics, it’s to protect those inside from being murdered by one of the life-loving anti-abortion nuts on the outside.

They do have a tendency to do that, you know.

Women of the time sacrificed their children to Baal in hopes the demon would grant them bright futures, increased wealth, and lasting youth … not much different than the modern women who abort their children in exchange for careers, finances, and a future unburdened by the duties of motherhood.

I am concerned that Mat Staver thinks human sacrifice actually “works.” Like, yes, human sacrifices did happen in ancient times, but they didn’t produce “bright futures, increased wealth or lasting youth.” (Although if we wanna be real precise about things, Baal, again, is usually associated with the Levantine deity Hadad, who was the god of storms and fertility.) Modern women are not “sacrificing their children,” because this is not a religious thing for anyone but people like Mat Staver.

Instead of being passed through fire before being murdered, babies are now murdered first, then delivered to city incinerators to provide heat for American homes (as we saw in Baltimore recently) — but not before being butchered alive, their tiny organs dissected as they squirm to escape. That way, they garner higher prices on the human organ trafficking market.

Ok, so literally none of this happens, and it did not happen in Baltimore. I don’t think the thing about babies being passed through fire before being murdered happened in the past, either. Just logistically, a baby is not going to survive being passed through a fire to be murdered. You put the baby in the fire, that baby is dead!

Sandra’s undercover journalism revealed that Planned Parenthood executives and doctors knowingly altered abortion procedures to obtain intact body parts that eventually were sold by organ procurement companies for huge profits. One person testified under oath that the beating heart that arrived in the lab had to have come from a baby who was born ALIVE!

You know, I do not like what Mat Staver is doing to my Google search history here — but yeah, there’s no way that happened, because while a human heart can beat when removed from the human body, it can only do so for three to five minutes, so a heart is not going to be beating all the way to a lab. Hearts can be restarted — that’s how organ transplants happen — but they don’t just keep beating forever and ever and ever. Unless, you kill a man, dismember him and then bury his body under your floorboards. Then … who can really say?

Also, no, they weren’t sold for “huge profits.” The costs associated with organ procurement have to do with shipping and other administrative costs. For instance, if someone does need a heart transplant, that needs to get to the transplantee fast, often by helicopter or something. The actual heart itself won’t cost money, because that’s illegal, but the whole operation will set you back about $1.4 million.

Donate Just Once!

It’s not that we know they weren’t sold for “huge profit” based on vibes, or because it is our religion. We know it because we understand how tissue donation works and we know the court ordered Sandra Merritt and her co-conspirators to pay Planned Parenthood $2 million for damages for the little scheme that involved them making this claim. Even the Supreme Court — which just overturned Roe a couple years ago — won’t look at her case, because it is that ridiculous.

This is all a religion for these people. They don’t need proof if they have faith, and that is why nothing can convince them that they are wrong. They assume everyone else is like them and that no one else could possibly do anything for a non-religious reason, and that, friends, is where shit gets real weird.

Now if you’ll excuse me, I must get back to ensuring a bountiful harvest this year. Anyone got a light? (Also, OPEN THREAD.)

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‘Most Important SCOTUS Case of My Lifetime’: Recap of Oral Arguments in Murthy v. Missouri

In one of the biggest free speech cases is being argued in front of SCOTUS today, and Jonathan Turley is covering some of the oral arguments in Murthy v. Missouri

So here’s the thread:

‘Bully pulpit exhortations’ is a heck of a way to describe this, and ‘persuasive’ is a straight-up lie.

Recommended

Ouch.

They wouldn’t do this to print media.

Ah. The pandemic. There we go.

We don’t buy it, either.

‘Once in a lifetime pandemic’ — until there’s a climate change emergency. Or a national security emergency.

It is a relevant concern.

Nobody. Ever.

This is a long post, but here it goes:

They will still be sitting there in the constitution, but the courts won’t enforce them as the founders intended. They will be reduced to a hollow shell.Look at what this Biden nominee is saying in the quoted tweet: if we have a big enough emergency, censorship is justified.

That only guarantees that future presidents will be even quicker to declare an emergency. “You can’t question this war, it’s an emergency!”

“You can’t question the effectiveness of a vaccine! We are in an emergency!”

“You can’t question our environmental policy, it’s an emergency!” “You can’t question the election! It’s an emergency!”

“You can’t question our plan to lock up every person of Chinese ancestry into camps, it’s an emergency!” Anything can theoretically be an emergency. And yes, the last example is thrown in to invoke what happened to Japanese Americans during World War II—another case of the Supreme Court granting emergency powers.

When the Supreme Court gave its stamp of approval to Japanese Internment in Korematsu v. United States, 323 U.S. 214 (1944), a different Justice Jackson, Robert Jackson, dissented, writing how an emergency exception granted by the courts inevitably expands: > The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as “the tendency of a principle to expand itself to the limit of its logic.”[1] A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image. Nothing better illustrates this danger than does the Court’s opinion in this case.

And the current Justice Jackson wants to hand that loaded gun to Joe Biden. And leftists, if that doesn’t bother you, are you ready to hand that gun to Donald Trump if he wins in November? You guys literally say he’s a Nazi but you are setting precedents that make it easier to overthrow the Republic, just like Hitler did.

All very good points.

It really is that important.

*Sigh*

This is a big case, and we’ll keep an eye on it.

***

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Pornhub pulls out of seventh state

Pornhub has begun blocking visitors from Texas, where the authorities are attempting to enforce a new law requiring web porn platforms to check viewer ages. The company called the law “ineffective, haphazard, and dangerous.”

Since Pornhub pulled out, Texans have greatly increased Google searches for tools to mask the geographic location of their devices.

We’ve been here before—with age-check laws, attempts to get around them, and porn platforms cutting off access. In fact, Texas is the seventh state that adult content platforms run by the Canadian company Aylo (formerly MindGeek) have left over age verification requirements. As a result, residents of Texas and six other states are blocked from visiting such popular sites as Pornhub, Redtube, and YouPorn.

There may be a better way forward when it comes to thwarting minors’ access to porn while still protecting adult privacy and free expression. But it’s also more complicated—and less likely to indiscriminately punish porn platforms, producers, and performers. Unsurprisingly, politicians don’t seem interested.

‘Not an Effective Solution’ 

Pornhub went dark in Texas last Thursday, following a late-February lawsuit filed by state Attorney General Ken Paxton against Aylo. Paxton has accused the company of failing to follow the state’s age verification law, which requires adult-content websites to make sure viewers are at least 18 years old. A federal court has called the new Texas law unconstitutional. But the 5th Circuit Court of Appeals then gave the state a green light to start enforcing it—hence Paxton’s lawsuit.

“As you may know, your elected officials in Texas are requiring us to verify your age before allowing you access to our website,” reads a message on Pornhub that now greets visitors from Texas. “Not only does this impinge on the rights of adults to access protected speech, it fails strict scrutiny by employing the least effective and yet also most restrictive means of accomplishing Texas’s stated purpose of allegedly protecting minors.

“While safety and compliance are at the forefront of our mission, providing identification every time you want to visit an adult platform is not an effective solution for protecting users online, and in fact, will put minors and your privacy at risk,” the statement continues. “Attempting to mandate age verification without any means to enforce at scale gives platforms the choice to comply or not, leaving thousands of platforms open and accessible. As we’ve seen in other states, such bills have failed to protect minors, by driving users from those few websites which comply, to the thousands of websites, with far fewer safety measures in place, which do not comply.”

Pornhub makes a good point, and one that prohibitionists of all sorts are wont to ignore. Banning (or putting up major barriers to) products that people want doesn’t stop people from wanting and accessing those products. It simply bars people from accessing them in the safest and most transparent way possible. And this is especially true where the internet is concerned, since the internet is a global and not easily constrained phenomenon.

There will always be websites willing to provide porn without carding viewers. These platforms are also less likely to take other steps to stay within regulatory or creator-protective limits. By driving viewers away from platforms like Pornhub—sites that engage in at least some content moderation, are relatively receptive and responsive to authorities, and are willing to forge mutually beneficial partnerships with porn creators—age verification laws could actually increase viewership of exploitative or otherwise undesirable content.

“The Texas law for age verification [won’t] actually protect children,” suggested Pornhub. “But it will…reduce content creators’ ability to post and distribute legal adult content and directly impact their ability to share the artistic messages they want to convey with it.”

Age Verification Fallout 

“Searches by Texas users for the term ‘VPN’ jumped more than fourfold” after Pornhub blocked access to Texans, Variety reports.

VPN stands for virtual private network, a tool used to mask the geographic location of internet users. Using a VPN, a resident of Texas could access Pornhub content by appearing to be located in some state where Pornhub is not blocked.

We’ve seen similar spikes in interest in VPNs in other states where Pornhub has blocked users.

States where Pornhub (and sister sites, such as Redtube and YouPorn) are now blocked include Arkansas, Mississippi, Montana, North Carolina, Texas, Utah, and Virginia. Each of these states recently enacted an age verification requirement for adult content websites. Last March, Utah became the second state to enact such a law, and the first to find residents blocked by Pornhub. The Arkansas, Virginia, and Mississippi laws—and Pornhub blocks—started last summer. The North Carolina and Montana laws took effect this past January, with Pornhub blocking access shortly before that.

The Louisiana Difference 

Louisiana was the first state to enact a law requiring web porn platforms to verify visitor ages. Yet Pornhub has not blocked visitors from Louisiana. Why?

The difference is in the details of complying with Louisiana’s law. Verifying visitor ages in Louisiana does not require porn sites to directly collect user IDs. Rather, the state’s government helped develop a third-party service called LA Wallet, which stores digital driver’s licenses and serves as an online age verification credential that affords some privacy.

Using this service does not require people to turn over their real identities to porn sites. “Through LA Wallet’s [Anonymous Remote Age Verification] capabilities, adult content sites can anonymously verify the age of users,” its website states.

This system isn’t perfect, but it is less invasive than the alternative—closer to a convenience store clerk glancing at someone’s ID than to creating a gigantic porn viewer database linked to real identities. This makes it more attractive to people visiting porn platforms and to the platforms themselves.

Louisiana’s law may still pose privacy risks and infringe on free speech. But at least Louisiana attempted to mitigate these issues, unlike the other states that have passed age verification laws. It took the time to develop a system that allows adult content sites to anonymously verify users, instead of just telling tech and content companies to work it out themselves, user privacy be damned.

A Better Way Forward?

It’s pretty clear that the days of open-access digital platforms are receding. Online age verification proposals—not just for porn but for social media—are sweeping the country. Last year, age-check laws aimed at adult content were introduced in at least 11 states. And so far this year, at least seven states (Georgia, Idaho, Indiana, Iowa, Kansas, Ohio, and Oklahoma) have seen proposals put forth to card visitors to online porn platforms.

The Free Speech Coalition, an adult industry trade group, has challenged some of these laws in court, as have some porn platforms.

But Aylo—which was acquired by Ethical Capital Partners last year—has another idea as well. It wants to see age restrictions implemented at the device level.

“We believe that the real solution for protecting minors and adults alike is to verify users’ ages at the point of access—the users’ devices—and to deny or permit access to age-restricted materials and websites based on that verification,” Alex Kekesi, Aylo’s vice president of brand and community, explained in an emailed statement. (He also said “this is not the end” of the Pornhub battle in Texas and that the company is “reviewing options and consulting with our legal team.”)

Device-based verification could work in different ways, but the basic advantage is that it can keep internet porn away from kids without implicating adult user privacy.

In a device-based system, parents could make sure their minor kids’ devices were specially equipped with a mechanism to alert websites that person using it is under 18. This device-based trigger—which could work equally well on porn, social media, or other platforms where people might want to proactively restrict access for kids—could accomplish the goal of restricting access to some group of users without requiring every user to forgo anonymity.

There’s also a more expansive way of doing device-based verification, which would require anyone using a smartphone or computer device to verify their age with the device provider (as opposed to making it an opt-in thing). This option would obviously be more of a burden on adult user privacy, and therefore is more objectionable. Jonah Aragon lays out an array of potential problems with this approach here.

Either way—kids-only or more expansive—”such an approach requires the cooperation of manufacturers and operating-system providers,” noted Pornhub in the statement now visible to Texas visitors.

I think this helps explain why we see less of a push for device-level verification. Computer and smartphone companies have more political clout than porn companies; it’s much easier for politicians to make special demands of the latter than the former.

Add the facts that 1) politicians are lazy and 2) at least some of them want to reduce porn viewership more broadly and not just for minors, and it’s not hard to imagine why politicians have been focused on making porn companies card users rather than pushing for device-based solutions.

For what it’s worth, a voluntary, device-based technical solution isn’t just better from a civil liberties standpoint; it may also be better at restricting access for kids.

The initial ruling against Texas’ age verification law, “noted that Texas’ own studies tended to show that content filtering and parental controls would be more effective, and better tailored, than age verification,” First Amendment lawyer Ari Cohn pointed out last year. And while some people suggest that these voluntary parental control measures don’t cut it because parents are too dumb or careless to use them, “that does not allow the government to sidestep them as a less restrictive means,” Cohn noted.

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Why Jeremy Hunt’ budget is a failure both politically and economically

Hunt has twice sabotaged this strategy with successive cuts to national insurance

Mike Buckley is the director of the Independent Commission on UK-EU Relations and a former Labour Party adviser 

Britain is a country with taxes rising and incomes stagnant. When the election is finally held later this year or just possibly in January 2025 it will be the first time on record that voters will enter the polling booth with incomes lower than at the previous election.

It’s not just the last 5 years. The whole Tory period in office from 2010 to now has been a growth and wage disaster. Real GDP per capita growth over the period will be a mere 0.8%, far below New Labour’s 1.4% and the above 2% norms seen throughout the last half of the 20th century.

Real wage growth is worse still – a paltry 0.2% over 14 years, compared to New Labour’s 1.9% and, again, at least 2% from 1951 to 1997.

Only on unemployment do the Tories come close to pre-2010 norms. Their 5.5% average is below New Labour’s 5.7% and far below Thatcher/Major’s 9.3%.

The combination of stagnant growth and wages, high inflation, hollowed out public services and council budgets due to ongoing austerity, the self-inflicted wound of a needlessly hard Brexit and the failure of levelling up have together made Britain a poorer, less optimistic nation that is consistently falling behind our peers.

We are increasingly unequal. While the richest Britons have kept pace with European and US peers the rest of us are falling behind. In 2007 the average UK household was 8% worse off than its peers in north-western Europe, but the deficit has since ballooned to a record 20%.

In 2021 the lowest-earning bracket of British households had a standard of living that was 20% weaker than their counterparts in Slovenia. The average Slovenian household will be better off than its British counterpart by 2024, and the average Polish family will move ahead before the end of the decade.

This matters because of the relative decline of British standards of living. It matters too for the long term health of the economy – we are and will remain in desperate need of migrant labour, but that labour will only come if the financial rewards are worthwhile.

This was the context for Jeremy Hunt’s spring budget – trailed as needing not only to set a course to greater economic prosperity and growth but also to do something to win back support to the Conservatives ahead of the coming election.

Politically the budget was a failure. Post-budget polls have not moved – the Tories remain around 20 points behind Labour, a position they’ve held consistently since Liz Truss’ disastrous ‘mini budget’ of 2022.

Twice as many voters believe – correctly – that despite Hunt’s cut to national insurance taxes overall are set to rise. Indeed UK tax as a share of GDP is forecast rise to 37.1% of GDP in 2028-29, the highest level since 1948.

The only glimmer of realisation from Hunt that a change of strategy is needed if his party is ever to recover politically was his choice of beneficiaries.

Conservative governments have favoured pensioners since 2010, a big reason why pensioners remain the last demographic still to give them a poll lead.

While pensioners will continue to benefit from policies announced in previous parliaments this budget, and to a degree other post 2019 budgets, the Tories have shifted the emphasis from benefits to pensioners to people of working age.

This means that over the course of this parliament the Tories have boosted the incomes of people under 45 by £590 a year, while cutting pensioner incomes by £770 a year. Hunt’s national insurance cuts are part of this: for people of working age they partially offset the rise in tax paid due to frozen thresholds, but there is no offset for pensioners who pay income tax but not national insurance.

The same can be said of Hunt’s change to child benefit – a policy which benefits wealthy parents of working age.

Yet the Tories remain less popular than Labour among every age group other than pensioners. Hunt’s help for people of working age, such as it is, is far too little, far too late.

The budget will similarly do little to change the economic outlook. Rishi Sunak as Chancellor chose to raise taxes to – by the end of the decade – a post war high in order to pay down the huge amount of government debt built up under successive Tory governments.

Hunt has twice sabotaged this strategy with successive cuts to national insurance. In contrast to Theresa May and Boris Johnson, who both sought to stimulate the economy through investment, albeit to little effect, Hunt aims to return the David Cameron / George Osborne model of cuts to state spending and taxes in an attempt to stimulate the economy.

It didn’t work for Cameron and cannot work without immigration, which Hunt spent much of his speech arguing against, repeatedly stating the need to grow our own workforce. Yet again his strategy made no sense – many out of work Britons are restricted by physical or mental ill health, or the need to care for family members with such needs. Hunt’s budget had nothing for these groups.

Indeed the basic premise of Hunt’s tax cut – that lower taxes inevitably leads to changed behaviour, higher growth and government tax receipts – is false. A Financial Times investigation found that real world instances of this happening are “vanishingly rare”.

The OBR predicts that while Hunt is right that lower national insurance will make work pay better and boost hours worked, generating a £1.7bn boost in government revenues by 2028-29, this is far offset by the ongoing £10.7bn cost.

Meanwhile Hunt’s projected spending plans are widely seen as farcical by outside experts, promising cuts to unprotected government departments which in the real world are simply unachievable.

All of this creates space for Labour. Where the Tories have no reliable answers to stagnant growth and wages, run down public services, inequality and the large number of economically inactive Britons, Labour are in the enviable position of holding a consistent poll lead and as a result public permission to offer change.

This makes the next – unknown in number – period of months before an election a key time for Labour to set out not just tax and spend decisions, but also a narrative of national decline under the Tories and the promise of renewal under Labour.

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Newslinks for Monday 18th March 2024 | Conservative Home

Sunak 1) The Prime Minister urges Tories to ‘stick with the plan’ as leadership talk grows

“Rishi Sunak has urged Tory MPs to stick with him and see his economic plan through amid speculation about a challenge to his leadership. On Sunday, the Prime Minister told backbenchers that “the economy is turning a corner” and urged them to hold their nerve despite the Conservative Party’s dire poll ratings. Mr Sunak was forced to speak out following days of speculation that Right-wing Conservatives were lining up Penny Mordaunt to replace him. On Sunday night, Number 10 issued his comments in a sign of growing concern amongst his aides about leadership plotting by Tory MPs. The Prime Minister told his party: “There is now a real sense that the economy is turning a corner, with all the economic indicators pointing in the right direction.” – The Daily Telegraph

  • He tells critics: ‘This is our bounce back year’ – The Times
  • Hester row and Anderson defection have ‘left Sunak weaker than ever’ – The Guardian
  • He pins his hopes on a big fall in inflation this week to show that living standards are improving – The I
  • Mordaunt ‘insists she isn’t trying to topple Sunak’ – The Times
  • Strife and division won’t win the election – Editorial, The Daily Mail
  • The notion that the Conservatives would benefit from toppling the Prime Minister is fanciful – Editorial, The Times
  • Tory MPs must rally behind the Prime Minister. No one will vote a party of disunity, plots, and self-obsession – Editorial, The Sun
  • Our clients don’t want to hear from Tories anymore – Rutherford Hall, The Financial Times
  • Blame for dismal legacy of Tory rule cannot be laid solely at Sunak’s feet – Trevor Kavanagh, The Sun
  • Everyone must get behind the Prime Minister’s plan – James Daly, Daily Express

>Yesterday:

Sunak 2) He is to promise help for Britain’s small businesses in ‘effort to woo voters’

“Rishi Sunak will announce reforms to help small businesses on Monday as he tries to shake off growing doubts about his struggling administration ahead of the general election expected this year. The prime minister, speaking at the government’s Business Connect conference in the Midlands, will announce new help for apprentices, cuts to red tape and a new task force for female entrepreneurs. The announcement is part of a policy blitz by Sunak as he tries to close a yawning gap in the opinion polls between his ruling Conservatives and the opposition Labour party with just months until an election. The Tory party has been convulsed with speculation about Sunak’s leadership after a series of political mis-steps, with some MPs discussing the merits of ousting him…” – The Financial Times

Badenoch ‘slashes red tape’ for medium-sized businesses in ‘post-Brexit boost’

“Costly red tape including climate risk reporting will be axed for up to 40,000 businesses under post-Brexit reforms planned by Kemi Badenoch. The Business Secretary is on Monday set to announce reforms expected to save medium-sized firms £150 million a year as the government looks to kick-start growth and improve productivity. Under the proposals, medium-sized companies would no longer have to spend time and money compiling an annual “strategic report” for shareholders, as had been required under European Union rules. Ms Badenoch will also announce that the number of people a company can employ before it is legally classed as large will rise from 250 to 375. The move will see 5,000 companies reclassified as medium-sized…” – The Daily Telegraph

  • She issues a ‘furious warning’ to MPs ‘plotting to oust’ the Prime Minister – Daily Express

Rwanda ‘wants two-month pause’ after first migrant flight arrivals

“Rwanda has insisted on a staggered start to migrant deportations with the first flights not taking off until mid-May at the earliest even if Rishi Sunak’s Rwanda bill becomes law this week, The Times can disclose. Government officials have said it will take a minimum of six weeks to get flights off the ground from the point at which the Safety of Rwanda Bill receives royal assent. The Home Office hopes it will be able to issue about 150 migrants with removal notification letters by the end of this week but it will depend on the outcome of votes on Wednesday in the House of Lords…Another source familiar with the plans confirmed that Rwanda will accept migrants from the UK in “stages”. “It has to be quite slowly staggered,” they added.” – The Times

  • Ministers have accepted that number of migrants to be initially deported will be ‘small’ as Kigali wants time for scheme to bed in – The Daily Telegraph
  • ‘Majority of Tory voters’ want Rwanda bill scrapped or watered down – The I
  • True cost of UK sending migrants to Rwanda could be billions of pounds, says IPPR think-tank – The Financial Times
  • Labour pledges ‘1,000 strong returns unit for asylum seekers’ if it wins power – The I
  • A historic defeat for the Tories looms if the Rwanda plan is grounded – Matthew Goodwin, Daily Express

Putin is a modern-day Stalin, says Shapps, after Russian leader wins ‘sham election’

“Vladimir Putin is behaving like “a modern-day Stalin”, Grant Shapps has said after the Russian president won a fifth term in office. Writing for The Telegraph…the Defence Secretary accused Putin of having stolen the Russian election after having opponents such as Alexei Navalny “imprisoned or murdered”. Yulia Navalnaya, Mr Navalny’s widow, joined a queue of voters outside the Russian embassy in Berlin at midday on Sunday in a protest against Putin’s rule. An exit poll published on Sunday night showed that Putin had won 88 per cent of the vote on a turnout of 73.3 per cent…Thousands of people turned up at polling stations in Russia and cities across the world on Sunday to participate in the Noon Against Putin protest over his re-election.” – The Daily Telegraph

  • What will Putin do next as president of Russia? – The Times
  • He strolls to victory – but his opponents ‘humiliate and outfox him’ – The Daily Telegraph
  • We’re still stunningly complacent about the grave threat Putin presents to our way of life and democratic values – Ian Birrell, The Daily Mail

Harper announces residents will ‘get a say’ on LTNs as guidance updated

“Councils will be obliged to consider residents’ views before creating new low-traffic neighbourhoods under updated government guidance. The Department for Transport has published draft statutory guidance for councils on LTNs, insisting that they must get buy-in from local residents, businesses and emergency services when designing schemes. It will come into force in the summer. LTNs restrict vehicles from using certain roads and prioritise cyclists and pedestrians. The move comes after a review uncovered concerns over LTNs, including emergency service delays, the impact on disabled residents and the high number of penalty charge notices the schemes generated…A review showed that only 13 per cent of residents responded to councils’ planning consultations on LTNs.” – The Times

>Yesterday:

Nick Timothy: The Islamist threat is all too real – Gove understands that it needs tackling

“British politicians and those with responsibility in wider society urgently need to understand who these extremists are, which organisations speak for them, and where their ideas come from. If they fail to do so, not only violence but political subjugation awaits us. Extremists insist, and sincerely believe, that they act in the name of Islam…This is why it is vital that the Government defines extremism, identifies extremist organisations and shuns, punishes and proscribes them accordingly. Whatever the concerns about Gove’s definition – and complaints are mostly worries about its misuse by a civil service and public sector in dire need of reform – he is the one minister who has sought to understand the threat we face. Now, others must follow his lead.” – The Daily Telegraph

Cates: Egg freezing is a ‘false promise’

“Women are being “exploited” into freezing their eggs under the “false promise” that it will likely result in them having a baby, a Tory MP has said. Miriam Cates criticised large companies who pay for female employees to freeze their eggs and urged women to put having a family before their career. Cates told the Mail on Sunday: “Egg freezing doesn’t work. A tiny percentage of people who freeze their eggs will ever become pregnant. “By the time women think about doing this, for obvious reasons they are thinking, ‘my biological clock is ticking, I’ve not met the right guy, I’m not ready to settle down’. Freezing eggs at about the age of 35 would likely not result in pregnancy because the eggs were not good enough quality, she said…” – The Times

Labour’s private school tax raid ‘could cost taxpayer £1.6 billion a year’

“Labour’s private school tax raid could cost the taxpayer £1.6 billion a year as it forces a quarter of pupils into the state sector, a new report has found. Sir Keir Starmer’s party has made introducing VAT on independent school fees a flagship policy, claiming it would generate £1.7 billion to spend on state education. But an analysis by the Adam Smith Institute (ASI), a free market think tank, warned that the policy was based on flawed assumptions and could cost the public purse billions across a single parliament. Sir Keir has already unveiled seven policies that would be funded by his tax raid to the tune of £1.3 billion, the amount the Institute for Fiscal Studies (IFS) has estimated that it would raise annually.” – The Daily Telegraph

  • Labour landslide will be ‘much harder to achieve than in 1997’, analysis shows – The Guardian
  • Khan presides over ‘surge in fatcats’ at City Hall with over 1,000 pen-pushers on £100,000 plus salaries – The Sun
  • Starmer will not pull off what Blair did in 1997 – Ian Birrell, The I
  • Labour is bound to have its own Hester moment – Will Lloyd, The Times

>Today:

>Yesterday:

Matheson should not resign as an MSP, Yousaf says

“Michael Matheson should not resign as an MSP after being found to have broken rules by claiming an £11,000 roaming charges bill from the taxpayer, Humza Yousaf has insisted. Mr Yousaf said his former health secretary was a “decent person” who had made a “mistake” after running up the charges while on a family holiday…The First Minister argued that Mr Matheson had already been suitably punished by losing his Scottish Cabinet job and paying back the money to the public purse. But the Tories said it was not enough for Mr Matheson to resign as a minister…and called for a bill that would allow his Falkirk West constituents to sack him. Their demand came after…an investigation by the Scottish Parliament…found he had breached two sections of the MSP code of conduct.” – The Daily Telegraph

  • Warning that new hate crime law may lead to police being swamped – The Times
  • SNP demand police return campervan at centre of finances investigation – The Daily Telegraph
  • His internal critics round on Yousaf’s ‘Tory-free Scotland’ pledge – The Times
  • Wishart said he would not use his leader’s controversial language – The Daily Telegraph
  • This protracted police investigation is a disaster for the SNP – Iain Macwhirter, The Times

Davey ‘vows to get UK back in single market’

“Sir Ed Davey has pledged to put the UK “on the path back to the single market” and “restore Britain’s place at the heart of Europe”. The Liberal Democrat leader told his party’s spring conference in York that Europe “is where we belong” and that he wanted to “repair the damage the Conservatives have done”. He said the prime minister “sounds like he’s already given up” and that setting the general election date is “pretty much the only thing left that Rishi Sunak controls any more”. The Tories, he said, “no longer represent British values of decency, tolerance and the rule of law”, and he challenged members to “smash the blue wall” at the election…The Lib Dems are using the gathering to prepare for a further push into traditional Conservative strongholds…” – The Times

News in Brief:

  • How was the puberty-blocking scandal ever allowed to happen? – Brendan O’Neill, The Spectator 
  • Wales’s new First Minister already plagued by scandal – Henry Hill, UnHerd 
  • A 30p vision for Britain – Joseph Dinnage, CapX 
  • The ongoing reality of Russian imperialism – Dmitri Levitin, The Critic 
  • We need a 21st-century Thatcherism not more Heseltine or Brown – Simon Cooke, The View from Culllingworth 

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Tony Lodge: How the zombie Rail Reform Bill can still deliver for passengers | Conservative Home

Tony Lodge is a Research Fellow at the Centre for Policy Studies and author of Changing Track – How to rescue the railways after the pandemic.

The new Draft Rail Reform Bill is something of an anomaly. It is the result of a tortuously drawn-out process which started six years ago with the Keith Williams Rail Review; this eventually led to the Shapps-Williams ‘Plan for Rail’ White Paper in May 2021, which enjoyed a large degree of industry support for its proposed Great British Railways (GBR) plan.

Bringing infrastructure and operational decision-making together would go some way to tackling fractured out of date planning and misaligned incentives which are the root of many of the railway’s problems.

But after all this, where was the long-promised Railways Bill?  Why wasn’t a draft Bill published later that year with the final plans in the May 2022 Queen’s Speech? Such a timescale would have seen a Railways Act, creating GBR, now in place. (After all, under 20 clauses, it is short.)

Instead, and to huge disappointment, a draft bill requiring pre-legislative scrutiny was hesitantly bolted onto last year’s King’s Speech.

As a result, the current plans to reform the railways, in line with the White Paper, will not now become law before the general election. If the Conservatives lose then their Bill will not become law, as a new government will move to deliver its own vision for rail, with yet another bill and perhaps another rail review too.

The Commons Transport Select Committee (TSC) has been tasked with delivering the pre-legislative scrutiny on the Draft Bill which should be completed by the early summer. However, there will clearly be no time for it to clear its formal parliamentary stages before the election.

So what can be concluded (and hopefully salvaged) from this frustrating business?

Firstly, the saga is likely – and rightly – going to be seen as yet more rail policy drift. Since 2010 there have been ten different rail ministers and seven secretaries of state. The result of this churn has been seven contradictory rail reviews, most of whose findings were largely ignored, against a rising subsidy for running trains and maintaining the network.

The best time to radically reform the railways was immediately after the pandemic, but this opportunity was missed. Running empty trains with non-furloughed staff cost the taxpayer £17bn;

It remains far too high – the annual rail subsidy still stands at £11bn – and this is a direct consequence of rail planners failing to react to new patterns of travel behaviour and fare spend.  For reference, only two per cent of all journeys taken by the public involves a train.

If the Conservatives win the election they will have a fully-scrutinised bill ready for its parliamentary stages. But if they don’t, a new government must be sufficiently encouraged by the industry to seriously consider the Bill, and adopt its most workable elements. Labour ministers might find a significant number of clauses, which have faced cross party scrutiny in the TSC, fit well with their plans.

For example, are Labour’s calls for “public ownership” of rail a version of the concessionary model we already see in London? Private companies are contracted to run trains by Transport for London, which is a statutory corporation headed by the Mayor. This has arguably worked well on the London Overground line for many years.

Likewise Network Rail, which is responsible for infrastructure, including tracks, signals, tunnels, bridges and most stations, has been in public hands since 2014.

A key concern around the Bill is where it fails to place sufficient emphasis on what clearly works and where it can better support innovation and market growth, the only way to control sector costs and bring high subsidies under control.

Arguably one of the most significant and welcome developments since rail privatisation has been the roll out of on-track train competition, known as open access.  Sadly for most passengers, it has been on too small a scale and is still limited to just one main line; the new Bill must do all it can to strengthen and widen this success.

Why then does the it appear to give the rail regulator new powers to limit train and route competition?

There is now clear evidence that trains which compete for passengers on the same track lead to lower fares, more passengers and more regions enjoying direct fast trains. The ‘open access’ model, where unsubsidised, long-distance, high-speed trains compete with government-sponsored franchises also sets a key performance benchmark.

If the subsidy for the franchise needs to rise to cover its losses, as a result of competition then the answer is more open access and less reliance on a failing franchise. These services between London, the North East, and Scotland have also had a huge positive impact on the levelling up agenda, connecting many towns and cities which were without direct and competitive fast train links.

The Bill states that competition should only be permitted so long as it doesn’t increase the subsidy required by franchises. But this completely fails to appreciate that whilst successful competition may well lead to pressures on a failing franchise’s business model, this is ultimately reflecting what a demand-led railway’s passengers want.

Supporting innovation here is key and there is a risk that old blocks to railway competition (based on out-of-date criteria) are simply resurrected.

The Bill creates a new Integrated Rail Body, which hopefully won’t resemble the old British Railways Board. Questions need to be asked about its independence alongside the regulator, and its power to control costs and boost financial performance. It must not just become an extension of Network Rail. It will be interesting to watch the select committee examining all these points.

Despite all the delays and uncertainty, this legislation is more important for the future of the railways than it might first appear. It might never become law in its present form, but it will influence whatever comes next. Ministers must take the time to get it right.

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Yikes! Zerohedge Reports That Current F-35 Combat Capability is FAR Worse Than We Even Knew

Last September, the General Accounting Office (GAO) issued a damning report on the current capabilities of the F-35 aircraft in the U.S. Armed Forces. In the report, the GAO concluded that only 55 percent of the more than 600 aircraft in use by the military were ‘mission capable.’ The media had a field day with those numbers, but it turns out, it may be FAR worse than we even already knew. 

This morning, the anonymous news site Zerohedge released an analysis of the GAO report and found that only 15-30 percent of the aircraft may be fully combat-capable. 

The discrepancy between the numbers is related to the definition of the term ‘mission capable.’ In its analysis, Zerohedge clarifies that ‘mission-capable’ does not actually mean ‘combat-capable.’ There are several levels of mission capability, so an aircraft that is deemed ‘mission-capable’ may only be suited for training or testing missions. To be ‘combat-capable,’ the aircraft must be deemed by the military to be ‘full mission-capable.’ 

(It’s a bit confusing, but that’s military bureaucracy and terminology for you.)

What Zerohedge found in the GAO report is pretty shocking.

Not only is the F-35 fleet’s full mission capable rate in the neighborhood of 30 percent (see table on page 96 of the report), the full mission capable rate of the Marine Corps’ F-35B was a miserable 15.5 percent in March 2023. More current full mission capable rates have not been published, but given the program’s ongoing problems and issues, including unreliable engines that are now under-specced due to feature creep, it is highly unlikely the situation has improved in the last year.

And then there is the fact that being fully mission capable is no indicator of how well the plane executes its missions. For example, the F-35 could be designated as mission capable for conducting close air support missions despite the fact the F-35 is the very antithesis of what a close air support plane should be and is not capable of executing genuine close air support.

But given the F-35’s unreliability, talking about full mission capability rates of anything approaching even 50 percent is a pipe dream. And it cannot be overemphasized that the F-35/Joint Strike Fighter has been in development since 1994, costing billions of dollars.

Recommended

Yikes. Fifteen to thirty percent of full mission capability. That is … not good. We looked at the charts mentioned above in the GAO report, and they do seem to match with Zerohedge’s analysis here, with the F-35A (used by the U.S. Air Force) generally performing much better than the F-35B (Marines) or F-35C (Navy). 

Zerohedge’s conclusion is equally ominous:

This brings us back to the question of just how many of the over 600 F-35s delivered to the U.S. military can provide significant, non-trivial combat ability. The answer is we really don’t know. But if we combine the F-35’s fragility with its very low full mission-capable and sortie generation rates, it probably isn’t many.

Elon does have a knack for stating the obvious very succinctly, doesn’t he? 

While it would be easy to pass this off to the Biden administration’s woke push in the military (and that certainly isn’t helping matters), the truth is that this is a much larger issue than any one President or policy. The F-35 has been a problem for years, ever since Lockheed Martin won the Joint Strike Fighter program over Boeing. 

So, no. We can’t make any Boeing jokes here, folks. Sorry about that. They have enough of their own problems anyway. 

But we can make twerking jokes. We’re not even sure what that means, but it made us laugh.

Ouch. That one hurts right in the military-industrial complex.

We can practically hear Jesse Kelly saying this from his nearest Red Lobster. 

In addition to the United States, the F-35 is also used by many NATO countries, as well as Israel and South Korea. We’re almost frightened to look at what their capability analysis might reveal.

It might be important at this point to note that China builds upwards of 100 new fourth-generation fighters for its Air Force and Navy each year, and is also replacing its older aircraft with these new fighters at a similarly rapid pace. 

Costs certainly are a major issue. Some estimates indicate that expanding, operating, and maintaining the F-35 program over time could ring up a price tag in excess of $1.7 trillion. 

That word does seem a bit fitting. 

The rest of the tweet concludes, ‘… this is what happens when Senate Staffers are allowed to design military ships, vehicles, and aircraft.’ Hard to argue against that. 

Ooh, that one is going to sting for the people who want to take away Americans’ right to bear arms. 

Well, sure. That fixes everything, right? 

Despite the jokes though, this is a serious issue. The F-35 was once promised by Lockheed Martin (along with Northrop Grumman and BAE Systems) to be a revolutionary aircraft for combat operations and air superiority. But over its history, it has been plagued by mishaps, crashes, and MASSIVE cost overruns — to the tune of hundreds of billions of dollars.

Will the United States ever abandon the aircraft or the program? Certainly not. 

But they’d better start focusing on fixing the problems. 

***

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The New York Times Again Worries That Free Speech Endangers Democracy

On Monday, the U.S. Supreme Court is scheduled to hear oral arguments in Murthy v. Missouri, which raises the question of when government efforts to suppress “misinformation” on social media violate the First Amendment. Neglecting that central question, The New York Times portrays the case as part of a conspiracy by Donald Trump’s supporters to undermine democracy by promoting false claims that mislead voters and threaten the peaceful transfer of power.

“In a world of unlimited online communications” where “anyone can reach huge numbers of people with unverified and false information,” Times reporters Jim Rutenberg and Steven Lee Myers ask, “where is the line between protecting democracy and trampling on the right to free speech?” This is not the first time that Myers has described freedom of speech as a threat to democracy. Last year, he worried that “the First Amendment has become, for better or worse, a barrier to virtually any government efforts to stifle a problem that, in the case of a pandemic, threatens public health and, in the case of the integrity of elections, even democracy itself.” The purported conflict between free speech and democracy is a bizarre and highly misleading way to frame the issues raised by Murthy.

When Biden administration officials persistently pressured social media platforms to curtail speech those officials viewed as dangerous, Rutenberg and Myers say, they were trying to “balance free speech with democratic rights” and “seeking a delicate balance between the First Amendment and social media’s rising power over public opinion.” The implication is that government officials have the authority to weigh freedom of speech against competing values on a case-by-case basis. But that is not the way the First Amendment works.

The First Amendment bars the government from “abridging the freedom of speech,” full stop. As interpreted by the Supreme Court, that command applies to all sorts of speech, no matter how inaccurate, misleading, controversial, offensive, or hateful it might be, unless it fits into one of several narrowly defined exceptions, such as defamation, true threats, fraud, obscenity, and incitement to “imminent lawless action.”

The speech that worries Rutenberg and Myers, such as false claims about COVID-19 vaccines and fraud in the 2020 presidential election, does not fit into any of those exceptions. It is therefore constitutionally protected, precluding any ad hoc attempt to balance the value of allowing it against the risks that might entail.

The Biden administration concedes as much. “No one disputes that the government would have violated the First Amendment if it had used threats of adverse government action to coerce private social-media platforms into moderating content,” it says. “But no such threats occurred here.”

The dispute in Murthy centers on whether federal officials’ interactions with Facebook et al. amounted to “significant encouragement” of censorship and/or crossed the line between persuasion and coercion. While civil liberties groups disagree about the answer to that question, they agree that it needs to be addressed.

The Foundation for Individual Rights and Expression (FIRE) is urging the Supreme Court to uphold the 5th Circuit’s conclusion that “executive branch agencies violated the First Amendment by interfering with private moderation decisions.” Those agencies, FIRE says, “used both carrot and stick tactics to achieve indirectly what the Constitution prohibits [when it is done] directly: governmental control over social media moderation decisions.”

FIRE sees “substantial evidence” that the White House, the FBI, the Centers for Disease Control and Prevention, and the Cybersecurity and Infrastructure Security
Agency “engaged in unlawful ‘significant encouragement’ by placing persistent pressure on platforms to change their moderation policies.” Some federal officials, it says, “became so entangled with social media platform moderation policies that they were able to effectively rewrite the platforms’ policies from the inside.”

FIRE also agrees with the 5th Circuit that some of these communications qualified as coercive. “White House officials issued ‘urgent, uncompromising demands to moderate
content’ and used ‘foreboding, inflammatory, and hyper-critical phraseology’ when social media companies failed to moderate content in the way they requested or as quickly as officials desired,” it says. “Demands to remove specific posts ‘ASAP,’ the use of words and phrases like ‘you are hiding the ball,’ and officials warning they are ‘gravely concerned’ made clear the threats to social media companies were ‘phrased virtually as orders.’ And officials repeatedly ‘refuse[d] to take “no” for an answer and pester[ed]’ the social media companies until they ‘succumb[ed].’ More ominously, they ‘threatened—both expressly and implicitly—to retaliate against inaction.'”

The record “contains copious evidence that the social media platforms understood communications from the White House and FBI agents to be threats and acted accordingly,” FIRE says. “For example, a social media platform expressly agreed to ‘adjust [its] policies’ to reflect the changes sought by officials. And several social media platforms ‘t[ook] down content, including posts and accounts that originated from the United States, in direct compliance with’ a request from the FBI that they delete ‘misinformation’ on the eve of the 2022 congressional election. When the White House and FBI ‘requested’ the platforms to jump, they ultimately, if reluctantly, asked how high.”

FIRE adds that the White House and the FBI “threatened ‘adverse consequences’ to social media platforms if they failed to comply.” When the platforms’ content moderation “was too slow for the White House’s liking, officials publicly accused them of ‘killing people'” and “privately threatened them with antitrust enforcement, repeal of Section 230 immunities, and other ‘fundamental reforms’ to make sure the platforms were ‘held accountable.'”

In addition to those “express threats,” FIRE says, “both White House and FBI officials’ statements contained implied threatened consequences because those officials are backed by the ‘awesome power’ wielded by the federal executive branch. For example, White House officials frequently alluded to the President’s potential involvement should social media platforms not moderate content to their satisfaction.” And “as a federal enforcement agency that conducts various internet investigations,” the FBI “has tools at its disposal to force a platform to take down content.”

The Electronic Frontier Foundation (EFF), which filed a Murthy brief in support of neither side, sees the situation somewhat differently. It worries that too broad an injunction against government interaction with social media platforms could preclude useful and constitutionally permissible contacts that inform Facebook et al. of misinformation threats they might want to counter by applying their own rules. But even EFF thinks some of these contacts can plausibly be viewed as coercive. EFF mentions Deputy Assistant to the President Rob Flaherty’s “communications to Facebook regarding specific Tucker Carlson and Tomi Lahren posts expressing COVID-19 vaccine hesitancy,” which it describes as “at least a close case that should likely be resolved against the government.”

Rutenberg and Myers’ article, by contrast, barely acknowledges that Murthy raises any legitimate First Amendment concerns at all. Instead they worry that the Supreme Court’s decision “could curtail the government’s latitude in monitoring content online.” To be clear: Rutenberg and Myers think that would be bad.

As they see it, Trump’s stolen-election fantasy poses a clear and present danger to democracy, as evidenced by the Capitol riot that interrupted congressional ratification of Joe Biden’s victory. They note that Trump, after being banished from social media in the wake of the riot, is now back on those platforms, free to promote his phony grievance as he tries to unseat Biden in this year’s election. Worse, “Facebook and YouTube announced that they would reverse their restrictions on content claiming that the 2020 election was stolen.” As a result, “the torrent of disinformation that the previous efforts had slowed, though not stopped, has resumed with even greater force.”

Trump’s banishment, of course, was the result of private decisions by private companies, as was his restoration. The decisions at issue in Murthy, by contrast, were made in the context of unrelenting government pressure that the Biden administration argues was constitutionally permissible. Rutenberg and Myers clearly agree.

When social media platforms crack down on controversial speech at the government’s behest, users are apt to think twice before expressing opinions that might offend the authorities. But Rutenberg and Myers are not worried about such self-censorship. Instead they worry that constitutional objections to the government’s social media meddling have had a “chilling effect” on efforts to curtail online speech.

To emphasize the need for such intervention, Rutenberg and Myers quote Jen Easterly, director of the Cybersecurity and Infrastructure Security Agency. “We’re in the business of critical infrastructure, and the most critical infrastructure is our cognitive infrastructure,” Easterly said at a 2021 conference, “so building that resilience to misinformation and disinformation, I think, is incredibly important.” She promised to “work with our partners in the private sector and throughout the rest of the government and at the [Department of Homeland Security] to continue to ensure that the American people have the facts that they need to help protect our critical infrastructure.”

Ensuring that Americans “have the facts” is one thing. It involves responding to “misinformation and disinformation” by citing countervailing evidence. But when fighting “misinformation and disinformation” entails government-encouraged censorship of controversial speech, it raises obvious First Amendment concerns. The very idea of a government agency charged with guarding “our cognitive infrastructure” should set off alarm bells for anyone who values freedom of thought and freedom of speech.

The fact that Rutenberg and Myers do not hear those bells suggests they assume that Orwellian mission can only affect speech they do not like, because the government will inerrantly distinguish between “misinformation” and worthwhile content. That is a pretty shortsided view for people whose work depends on a constitutional provision that bars the government from enforcing such judgments.

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Psycho Killer Hockey, Qu’est-ce Que C’est?

A Conservative Party of Canada MP went to prison recently although not for a reason you might think.

Frank Caputo, who represents a rural riding in British Columbia, traveled all the way to La Macaza, a small town in the Laurentian Mountains north of Montreal, on a fishing expedition to feed the emerging right-wing talking point Prime Minister Justin Trudeau is soft on serial killers.

Caputo went there specifically to see the cell belonging to Paul Bernardo, a man so despised it caused a public outcry when it emerged last year he’d been transferred to a medium-security facility after spending nearly three decades in max.

“I came face to face with Paul Bernardo, and you will not believe how this guy is living,” said Caputo over ominous Stranger Things-style synthesizers at the start of a video called “Serial Killer Pick-up Hockey.”

He compares living conditions at the jail as similar to how the wiseguys from Goodfellas had it in the slammer, and Caputo is clearly hoping to be made a capo in a future Conservative cabinet. Some of the supposed luxury items discovered in Bernardo’s vacant cell included chocolate bars, an electric razor and even empty margarine containers (!), and the man also has access to a decent gym, billiard table, workshop and, according to the representative for Kamloops-Thompson-Cariboo, even an outdoor hockey rink/tennis court.

Turns out he might’ve taken some Katie Britt-level liberties with that last one.

Prison officials apparently didn’t appreciate having their facility used as the brunt of a political stunt and poured cold water on Caputo’s claims by pointing out they haven’t had a working ice rink in years.

“There is currently no functioning hockey rink or tennis court being used by inmates at La Macaza,” said spokesperson Kevin Antonucci. “It should also be noted that opportunities to participate in recreational activities [are] not unique to La Macaza, and can be found in other institutions.”

Antonucci also clapped back at his big Brush with Evil anecdote, which Caputo presents like he was Clarice Starling trying to catch Buffalo Bill, saying: “It is our understanding that participants did not interact with Paul Bernardo during their visit.”

They may have passed in a hallway though.

Chastened for embellishing the encounter, the rookie MP apologized and … lol just kidding. He’s a very serious Conservative man so of course doubled down and posted a photo proving there IS TOO a Serial Killer Hockey Rink, which has to be the worst name for a sports facility since Comiskey Park, home of the Chicago White Sox, was renamed Guaranteed Rate Field.

Note the absence of ice. Or nets. Or serial killers.

Jesus wept. “The Trudeau government says doesn’t exist.” Nobody is saying it doesn’t exist, only that it’s currently just some boards assembled around a piece of pavement. Prison officials declined to say if this was due to safety concerns, budget cuts, a casualty of COVID or simply because violent sex offenders — people who don’t play well with others by definition — don’t want to play hockey with others either. Just because Jason Voorhees likes to wear an old-school goalie mask doesn’t mean they’re all into the game.

Caputo was also dismayed to discover the jail seems more like a university campus than the Black Hole of Calcutta. Which is because it used to be. La Macaza, located next to the airport for the Mont Tremblant ski resort, first began as a military base but was turned into Manitou College in 1973, the country’s first post-secondary institute offering studies in Indigenous affairs. Which seems like something the MP for the same riding where hundreds of unmarked graves were discovered at the former Kamloops Indian Residential School two years ago should know. Although, unlike with residential schools, students at Manitou weren’t forced to attend against their will, and the school closed after three years before being turned into a prison.

But the trip wasn’t a complete bust since Caputo discovered there is now yet another notorious killer housed in this particular hoosegow, Luka Magnotta, the guy from the Netflix true-crime series Don’t F**k With Cats, whose name is fresher in potential Conservative voters’ memories. He is now trying to have Parliament do a special investigation into both of their respective transfers, and Conservatives want to pin the blame on Trudeau for passing a bill that made them possible.

Which also isn’t true.

Bill C-83 was introduced in 2019 to end the use of solitary confinement, which experts say does far more harm than good, and changed the law to ensure inmates are held in the “least restrictive environment.”

Global News breaks it down:

A spokesperson for Public Safety Canada says Bernardo’s transfer would have happened under the previous wording of the law, which was brought in by the former Conservative government of Stephen Harper.

That version of the law stipulated that prisoners should be kept in prisons with the “necessary” restrictions. When the law was originally created by former Progressive Conservative prime minister Brian Mulroney in the early 1990s, it used the term “least restrictive.”

“The result of this transfer was not affected by the passage of Bill C-83. A transfer would have also occurred under the previous language of ‘necessary’ restrictions,” said Public Safety spokesperson Magali Deussing.

The Right has a long history of using useful boogeymen to paint their opponents as being weak on crime. The best example is probably the outsized role convicted murderer William Horton played in the 1988 US presidential election, where George H. W. Bush’s campaign managed to convict former Massachusetts governor Michael Dukakis in the court of public opinion for crimes committed by Horton while out on furlough from a state prison. Horton was conveniently Black, so GOP strategists put a cherry on top of their dog-whistle sundae by giving him the diminutive nickname “Willie” to help sell the idea Democrats love violent crimes and any Black people who commit them.

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Now that the rink stink has been put on ice, Caputo is pitching the prospect of these two potentially playing tennis together when the weather or court conditions improve. Which, as distasteful as it is, may not be the worst idea. Tennis is great way to work out aggression and release endorphins, and being scoreless in a match would likely be as close as these losers will ever get to experiencing love again.

[CBC / The Tyee / Global News / Merriam-Webster]

Love but for real

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