Their claims of censorship have successfully stymied the effort to filter election lies online.
In the wake of the riot on Capitol Hill on January 6, 2021, a groundswell built in Washington to rein in the onslaught of lies that had fuelled 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 is once again coursing through news feeds, aiding Trump as he fuels his comeback with falsehoods about the 2020 election.
“The censorship cartel must be dismantled and destroyed, and it must happen immediately,” he thundered at the start of his 2024 campaign.
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 Representative 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.” (More recently, Benz originated the false assertion that Taylor Swift was a “psychological operation” asset for the Pentagon.)
Three years after Trump’s posts about rigged voting machines and stuffed ballot boxes went viral, he and his allies have achieved a stunning reversal of online fortune. Social media platforms now provide fewer checks against the intentional spread of lies about elections.
“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 US 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 court’s decision, expected by June, could curtail the government’s latitude in monitoring content online.
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 paralysing 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.”
’Interpretive battle’
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.
“WE have to use TIKTOK!!” read a memo prepared for Trump’s lead lawyer, Rudy Giuliani, referring to a strategy to use social media to promote false messages about dead voters and vote-stealing software. “Content goes VIRAL here like no other platform!!!!! And there are MILLIONS of Trump supporters!”
After the violence on January 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 January 6 attack. That would be crucial “for success in 2022 and 2024,” he added.
Once out of office, Trump built his own social platform, Truth Social, and his aides created a network of new organisations to advance the Trump agenda — and to prepare for his return.
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.”
He solicited funding from conservative donors, drawing on a US$27 million contribution from the Bradley Impact Fund, which had financed a web of groups that pushed “voter fraud” conspiracies in 2020. Another US$1.3 million came from the Conservative Partnership Institute, considered the nonprofit nerve centre of the Trump movement.
A key focus would be what he perceived as bias against conservatives on social media. “When you see people being banned off of Twitter and Facebook and other platforms,” he said in January 2021, “what you are seeing is the fundamental erosion of the concept of liberty and freedom in America.”
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 defences against election lies, which clearly had failed before January 6.
In one respect, that was more clear-cut than matters of public health. There have long been special legal protections against providing false information about where, when and how to vote or intentionally sowing public confusion, or fear, to suppress voting.
Social media, with its pipeline to tens of millions of voters, presented powerful new pathways for anti-democratic tactics, but with far fewer of the regulatory and legal limits that exist for television, radio and newspapers.
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 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.
The fury was most intense on the right. Miller, speaking on Fox News, slammed it as “something out of a dystopian sci-fi novel.”
Jankowicz said such attacks were distorting but acknowledged that the announcement had struck a nerve.
“I think any American, when you hear, ‘Oh, the administration, the White House, is setting up something to censor Americans,’ even if that has no shred of evidence behind it, your ears are really going to prick up,” she said.
A legal assault
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, including Dr Anthony Fauci, the nation’s top expert on infectious diseases, who had become a villain to many conservatives.
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.
“A lot of these lawsuits against social media companies themselves were just dying in the graveyard in the Northern District of California,” Schmitt, who was elected to the US Senate in 2022, said, referring to the liberal-leaning federal court in San Francisco. “And so our approach was a little bit different. We went directly at the government.”
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.
Documents subpoenaed for the case showed extensive interactions between government officials and the platforms. In emails and text messages, people on both sides were alternately cooperative and confrontational. The platforms took seriously the administration’s complaints about content they said was misleading or false, but at the same time, they did not blindly carry out its bidding.
On Biden’s third day in office, a White House aide, Clarke Humphrey, wrote to Twitter flagging a post by Robert F. Kennedy Jr. falsely suggesting that the death of Hank Aaron, the baseball legend, had been caused by the Covid-19 vaccines. She asked an executive at the platform to begin the process of removing the post “as soon as possible.”
The post is still up.
Reframing the debate
In August 2022, a new organisation, 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.
It had what it considered successes, including spotting — and helping to stop — the spread of a false claim that a poll worker was burning Trump ballots in Erie, Pennsylvania. The approach could misfire, though. A separate but related CISA system flagged a tweet from a New York Times reporter accurately describing a printer problem at a voter centre in Wisconsin, leading Twitter to affix an accuracy warning.
Decisions about whether to act remained with the platforms, which, in nearly 2 out of every 3 cases, did nothing.
In Benz’s telling, however, the government was using the partnership to get around the First Amendment, such as outsourcing warfare to the private military contractor Blackwater.
Benz’s foundation for a time advertised itself as “a project of” Empower Oversight, a Republican group created by former Senate aides to support “whistleblower” investigations.
Benz had previously lived a dual life. By day, he was a corporate lawyer in New York. In his off-hours, he toiled online under a social media avatar, Frame Game Radio, which railed against “the complete war on free speech” as it produced racist and antisemitic posts.
In videos and posts, Frame Game identified himself as a onetime member of the “Western chauvinist” group the Proud Boys, and as a Jew. Yet he blamed Jewish groups when he and others were suspended by social media companies. Warning about a looming demographic “white genocide,” Frame Game vented, “Anything pro white is called racist; anything white positive is racist.”
Benz did not respond to requests for comment. After NBC News first reported on Frame Game last fall, Benz called the account “a deradicalisation project” to which he contributed in a “limited manner.” It was intended, he wrote on X “by Jews to get people who hated Jews to stop hating Jews.”
Toward the end of 2018, Benz joined the Trump administration as a speechwriter for the housing and urban development secretary, Ben Carson. Benz’s posts were discovered by a colleague and brought to department management, according to a former official who insisted on anonymity to discuss a personnel matter.
As the election between Trump and Biden heated up, he joined Miller’s speech-writing team at the White House. He was there through the early days of the effort to keep Trump in power and was involved in the search for statistical anomalies that could purport to show election fraud, according to testimony and records collected by House investigators, some of which were first uncovered by Kristen Ruby, a social media and public relations strategist.
In late November 2020, Benz was abruptly moved to the State Department as a deputy assistant secretary for international communications and information policy. It is unclear precisely what he did in the role. Benz has since claimed that the job, which he held for less than two months, gave him his expertise in cyberpolicy.
Benz’s report gained national attention when a conservative website, Just the News, wrote about it in September 2022. Four days later, Schmitt’s office sent requests for records to the University of Washington and others demanding information about their contacts with the government.
Schmitt soon amended his lawsuit to include nearly five pages detailing Benz’s work and asserting a new, broader claim: Not only was the government exerting pressure on the platforms, but it was also effectively deputising the private researchers “to evade First Amendment and other legal restrictions.”
The scheme, Benz said, had “ambitious sights for 2022 and 2024.”
‘An aha moment’
In October 2022, Musk completed his purchase of Twitter and vowed to make the platform a forum for unfettered debate.
He quickly reversed the banning of Trump — calling it “morally wrong” — and loosened rules that had caused the suspensions of many of his followers.
He also set out to prove that Twitter’s previous management had too willingly cooperated with government officials. He released internal company communications to a select group of writers, among them Matt Taibbi and Michael Shellenberger.
The resulting project, which became known as the Twitter Files, began with an instalment investigating Twitter’s decision to limit the reach of the New York Post article about Hunter Biden’s laptop.
The author of that dispatch, Taibbi, concluded that Twitter had limited the coverage amid general warnings from the FBI that Russia could leak hacked materials to try to influence the 2020 election. Although he was critical of previous leadership at Twitter, he reported that he saw no evidence of direct government involvement.
Last March, Benz joined the fray. Taibbi and Benz participated in a live discussion on Twitter, which was co-hosted by Jennifer Lynn Lawrence, an organiser of the Trump rally that preceded the riot on January 6.
As Taibbi described his work, Benz jumped in: “I believe I have all of the missing pieces of the puzzle.”
There was a far broader “scale of censorship the world has never experienced before,” he told Taibbi, who made plans to follow up.
Later, Shellenberger said that connecting with Benz had led to “a big aha moment.”
“The clouds parted, and the sunlight burst through the sky,” he said on a podcast. “It’s like, oh, my gosh, this guy is way, way farther down the rabbit hole than we even knew the rabbit hole went.”
Platform in Congress
A week after that online meeting, Taibbi and Shellenberger appeared on Capitol Hill as star witnesses for the Select Subcommittee on the Weaponization of the Federal Government. Benz sat behind them, listening as they detailed parts of his central thesis: This was not an imperfect attempt to balance free speech with democratic rights but a state-sponsored thought-policing system.
Shellenberger titled his written testimony, “The Censorship Industrial Complex.”
The committee had been created immediately after Republicans took control of the House in 2023, with a mandate to investigate, among other things, the actions taken by social media companies against conservatives.
It was led by Jordan, who helped spearhead the attempt to block certification of Joe Biden’s victory and who has since worked closely with Miller and America First Legal.
“There are subpoenas that are going out on a daily, weekly basis,” Miller told Fox News in the first days of Republican control of the House, showing familiarity with the committee’s strategy.
Jordan’s committee soon sought documents from all those involved in the Election Integrity Partnership, as well as scores of government agencies and private researchers.
Miller followed with his own federal lawsuit on behalf of private plaintiffs in Missouri v. Biden, filing with D. John Sauer, a former solicitor general of Missouri who had led that case. (More recently, Sauer has represented Trump at the Supreme Court.)
Democrats in the House and legal experts questioned the collaboration as potentially unethical. Lawyers involved in the case have claimed that the subcommittee leaked selective parts of interviews conducted behind closed doors to America First Legal for use in its private lawsuits.
An amicus brief filed by the committee misrepresented facts and omitted evidence in ways that may have violated the Federal Rules of Civil Procedure, Representative Jerry Nadler, D-N.Y., wrote in a 46-page letter to Jordan.
A committee spokesperson said the letter “deliberately misrepresents the evidence available to the committee to defend the Biden administration’s attacks on the First Amendment.”
The amicus brief, filed to the 5th US Circuit Court of Appeals, was drafted by a lawyer at Miller’s legal foundation.
Miller did not respond to requests for comment.
A chilling effect
By the summer of 2023, the legal and political effort was having an impact.
The organisations involved in the Election Integrity Partnership faced an avalanche of requests and, if they balked, subpoenas for any emails, text messages or other information involving the government or social media companies dating to 2015.
Complying consumed time and money. The threat of legal action dried up funding from donors — which had included philanthropies, corporations and the government — and struck fear in researchers worried about facing legal action and political threats online for the work.
“You had a lot of organisations doing this research,” a senior analyst at one of them said, speaking on the condition of anonymity because of fear of legal retribution. “Now there are none.”
The Biden administration also found its hands tied.
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. Doughty even repeated an incorrect statistic first promoted by Benz: The partnership had flagged 22 million messages on Twitter alone, he wrote. In fact, it had flagged fewer than 5,000.
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 its appeal.
In September, the 5th US 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 who described the retreat on the condition of anonymity.
In a statement, Cait Conley, a senior adviser at CISA, said the department was still strengthening partnerships to fight “risks posed by foreign actors.” She did not address online threats at home.
The platforms have also backed off. Facebook and YouTube announced that they would reverse their restrictions on content claiming that the 2020 election was stolen. The torrent of disinformation that the previous efforts had slowed, though not stopped, has resumed with even greater force.
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, such as the one about the Pentagon’s use of Swift, 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.”
This article originally appeared in The New York Times.
Written by: Jim Rutenberg and Steven Lee Myers
Photographs by: Emily Elconin, Doug Mills, Victor J. Blue, Jamie Kelter Davis, Haiyun Jiang and Nick Fancher
©2024 THE NEW YORK TIMES