`Interpretive battle'
In the wake of the riot on Capitol Hill on Jan. 6, 2021, a groundswell built in Washington to rein in the onslaught of lies that had fueled the assault on the peaceful transfer of power.
Social media companies suspended Donald Trump, then the president, and many of his allies from the platforms they had used to spread misinformation about his defeat and whip up the attempt to overturn it. President Joe Biden's administration, Democrats in Congress and even some Republicans sought to do more to hold the companies accountable. Academic researchers wrestled with how to strengthen efforts to monitor false posts.
Trump and his allies embarked instead on a counteroffensive, a coordinated effort to block what they viewed as a dangerous effort to censor conservatives.
They have unquestionably prevailed.
Waged in the courts, in Congress and in the seething precincts of the internet, that effort has eviscerated attempts to shield elections from disinformation in the social media era. It tapped into — and then, critics say, twisted — the fierce debate over free speech and the government's role in policing content.
Projects that were once bipartisan, including one started by the Trump administration, have been recast as deep-state conspiracies to rig elections. Facing legal and political blowback, the Biden administration has largely abandoned moves that might be construed as stifling political speech.
While little noticed by most Americans, the effort has helped cut a path for Trump's attempt to recapture the presidency. Disinformation about elections again is coursing through news feeds, aiding Trump as he fuels his comeback with falsehoods about the 2020 election.
The counteroffensive was led by former Trump aides and allies who had also pushed to overturn the 2020 election. They include Stephen Miller, the White House policy adviser; the attorneys general of Missouri and Louisiana, both Republicans; and lawmakers in Congress such as Rep. Jim Jordan, R-Ohio, who since last year has led a House subcommittee to investigate what it calls “the weaponization of government.”
Those involved draw financial support from conservative donors who have backed groups that promoted lies about voting in 2020. They have worked alongside an eclectic cast of characters, including Elon Musk, a billionaire who bought Twitter, now called X, and vowed to make it a bastion of free speech; and Mike Benz, a former Trump administration official who previously produced content for a social media account that trafficked in posts about “white ethnic displacement.”
Three years after Trump's posts about rigged voting machines and stuffed ballot boxes went viral, he and
Republican presidential candidate former President Donald Trump speaks at a rally on Saturday in Vandalia, Ohio, where he said, “Now, if I don't get elected, it's going to be a blood bath for the whole that's going to be the least of it. It's going to be a blood bath for the country.”
his allies have achieved a stunning reversal of online fortune. Social media platforms now provide fewer checks against the intentional spread of lies about elections.
“The people that benefit from the spread of disinformation have effectively silenced many of the people that would try to call them out,” said Kate Starbird, a professor at the University of Washington whose research on disinformation made her a target of the effort.
It took aim at a patchwork of systems, started in Trump's administration, that were intended to protect U.S. democracy from foreign interference. As those systems evolved to address domestic sources of misinformation, federal officials and private researchers began urging social media companies to do more to enforce their policies against harmful content.
That work has led to some of the most important First Amendment cases of the internet age, including one to be argued Monday at the Supreme Court. That lawsuit, filed by the attorneys general of Missouri and Louisiana, accuses federal officials of colluding with or coercing the platforms to censor content critical of the government.
The arguments strike at the heart of an unsettled question in modern American political life: In a world of unlimited online communications, in which anyone can reach huge numbers of people with unverified and false information, where is the line between protecting democracy and trampling on the right to free speech?
Even before the court rules, Trump's allies have succeeded in paralyzing the Biden administration and the network of researchers who monitor disinformation.
Officials at the Department of Homeland Security and the State Department continue to monitor foreign disinformation, but the government has suspended virtually all cooperation with the social media platforms to address posts that originate in the United States.
“There's just a chilling effect on all of this,” said Nina Jankowicz, a researcher who in 2022 briefly served as executive director of a short-lived DHS advisory board on disinformation. “Nobody wants to be caught up in it.”
For Trump, banishment from social media was debilitating. His posts had been central to his political success, as was the army of adherents who cheered his messages and rallied behind his effort to hold on to office after he lost.
After the violence on Jan. 6, Trump aides started working on how to “win the interpretive battle of the Trump history,” as one of them, Vincent Haley, had said in a previously unreported message found in the archives of the House investigation into the Jan. 6 attack.
Once out of office, Trump built his own social platform, Truth Social, and his aides created a network of new organizations to advance the Trump agenda.
Miller, Trump's top policy adviser, created America First Legal, a nonprofit, to take on, as its mission statement put it, “an unholy alliance of corrupt special interests, big tech titans, fake news media and liberal Washington politicians.”
A key focus would be what he perceived as bias against conservatives on social media.
Biden's administration was moving in the other direction. He came into office determined to take a tougher line against misinformation online — in large part because it was seen as an obstacle to bringing the coronavirus pandemic under control.
DHS officials were focused on bolstering defenses against election lies, which clearly had failed before Jan. 6.
Social media, with its pipeline to tens of millions of voters, presented powerful new pathways for antidemocratic tactics, but with far fewer of the regulatory and legal limits that exist for television, radio and newspapers.
The pitfalls were also clear: During the 2020 campaign, platforms had rushed to bury a New York Post article about Hunter Biden's laptop out of concern that it might be tied to Russian interference. Conservatives saw it as an attempt to tilt the scales toward Joe Biden.
Administration officials said they were seeking a delicate balance between the First Amendment and social media's rising power over public opinion.
“We're in the business of critical infrastructure, and the most critical infrastructure is our cognitive infrastructure,” said Jen Easterly, director of the Cybersecurity and Infrastructure Security Agency, whose responsibilities include protecting the national voting system.
“Building that resilience to misinformation and disinformation, I think, is incredibly important.”
In early 2022, DHS announced its first major answer
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to the conundrum: the Disinformation Governance Board. The board would serve as an advisory body and help coordinate anti-disinformation efforts across the department's bureaucracy, officials said. Its director was Jankowicz, an expert in Russian disinformation.
The announcement ignited a political firestorm that killed the board only weeks after it began operating. Liberals and conservatives raised questions about its reach and the potential for abuse.
Among those who took note was Eric Schmitt, then the attorney general of Missouri.
He and other attorneys general had been a forceful part of Trump's legal campaign to overturn his defeat. Now they would lend legal firepower to block the fight against disinformation.
In May 2022, Schmitt and Jeff Landry, then the attorney general of Louisiana and now the governor, sued dozens of federal officials.
The lawsuit picked up where others had failed. Trump and others had sued Facebook and Twitter, but those challenges stalled, as courts effectively ruled that the companies had a right to ban content on their sites. The new case, known as Missouri v. Biden, argued that companies were not just banning users; they were being coerced into doing so by government officials.
The attorneys general filed the lawsuit in the Western District of Louisiana, where it fell to Judge Terry Doughty, a Trump appointee who had built a reputation for blocking Biden administration policies.
The lawsuit was considered a long shot by experts, who noted that government officials were not issuing orders but urging the platforms to enforce their own policies. The decision to act was left to the companies, and more often than not, they did nothing.
Reframing the debate
In August 2022, a new organization, the Foundation for Freedom Online, posted a report on its website called “Department of Homeland Censorship: How DHS Seized Power Over Online Speech.”
The group's founder,
Benz, claimed to have firsthand knowledge of how federal officials were “coordinating mass censorship of the internet.”
At the heart of Benz's theory was the Election Integrity Partnership, a group created in the summer of 2020 to supplement government efforts to combat misinformation about the election that year.
The idea came from a group of college interns at CISA. The students suggested that research institutions could help track and flag posts that might violate the platforms' standards, feeding the information into a portal open to the agency, state and local governments and the platforms.
The project ultimately involved Stanford University, the University of Washington, the National Conference on Citizenship, the Atlantic Council's Digital Forensic Research Lab and Graphika, a social media analytics firm. At its peak, it had 120 analysts, some of whom were college students.
Decisions about whether to act remained with the platforms, which, in nearly 2 out of every 3 cases, did nothing.
On July 4, 2023, Doughty issued a sweeping injunction, saying that the government could not reach out to the platforms, or work with outside groups monitoring social media content, to address misinformation, except in a narrow set of circumstances.
The ruling went further than some of the plaintiffs in the Missouri case had expected.
The Biden administration appealed.
While the judge said the administration could still take steps to stop foreign election interference or posts that mislead about voting requirements, it was unclear how it could without communicating “with social media companies on initiatives to prevent grave harm to the American people and our democratic processes,” the government asserted.
In September, the 5th U.S. Circuit Court of Appeals scaled the order back significantly but still found the government had most likely overstepped the limits of the First Amendment. That sent the case to the Supreme Court, where justices recently expressed deep reservations about government intrusions in social media.
Before the court's decision, agencies across the government have virtually stopped communicating with social media companies, fearing the legal and political fallout as the presidential election approaches, according to several government officials.
Hailing the end of “that halcyon period of the censorship industry,” Benz has found new celebrity, sitting for interviews with Tucker Carlson and Russell Brand. His conspiracy theories have aired on Fox News and become talking points for many Republicans.
The biggest winner, arguably, has been Trump, who casts himself as victim and avenger of a vast plot to muzzle his movement.
Biden is “building the most sophisticated censorship and information control apparatus in the world,” Trump said in a campaign email March 7, “to crush free speech in America.”