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This episode is brought to you with financial support from the Future of Online Trust & Safety Fund.
The NHL keeps doing this kind of crap to itself. Of all the major American sports leagues, I’d say it’s pretty clear that the National Hockey League trails all the others in terms of getting things right with the internet. The league finally piggybacked onto the MLB Advanced Media platform several years ago to power its game-streaming service, only to have that entire product descend into the hell that is the NHL’s strict blackout rules. Making an app about the NHL and want to use the league’s name as a searchable keyword so customers can find it? Well, that is apparently trademark infringement.
The point is that the NHL is the pro-sports version of our curmudgeonly uncle that hates modernity and all this new-fangled techno-gizmos the young whipper-snappers are always staring at instead of going outside and playing with a stick or something. And so, perhaps it’s no surprise that a whole bunch of content creators on YouTube that focus on the NHL were suddenly hit with a flurry of copyright notices and demonitizations.
According to multiple content creators, the effects of the copyright claims ranged from having the monetization of their videos redirected to the league to some of the videos being outright blocked. In a video posted to his channel explaining the issues, popular YouTuber EckhartsLadder expressed doubt that moving forward as an NHL content creator would be viable with such restrictions.
“I can’t pussyfoot around and maybe get videos monetized if I want to upload at the same rate,” the content creator said in the video. “I also don’t want to move around from using footage… for me personally, if I can’t make this content, content which I think is engaging, where the clips add a lot of value, where you can see what I am breaking down, it’s just not worth it. And again, I won’t play around with the NHL’s dumb rules.”
Now, the NHL eventually blamed this on a “setting error”, whatever the hell that means. Given how it seemed that any video that used even a tiny snippet of NHL video content within it was getting this copyright treatment, I suppose perhaps an automated takedown bot may have been accidentally set to take action on any NHL footage it could find. But even if that is indeed the true explanation, meaning all of this was a giant accident, that level of incompetency for a league that desperately needs all the attention and free marketing these YouTubers provide can’t be tolerated.
And won’t be if things don’t start changing, judging by some of the comments from these creators.
“The NHL here, in my honest opinion, is shooting itself in the foot,” EckhartsLadder says in his video. “Us as creators, I think, are doing a great job of marketing the game, of keeping people interested in the game. In the age of blackouts, 82-game seasons, 32 teams, I’ve heard so many times that my viewers, that the viewers of these other channels, rely on our content to keep their interest in the NHL high.”
“This is golden opportunity for the @NHL to work with its creators to grow the game. I hope we can find a solution,” the X account for another popular YouTuber, Hockey Psychology, posted. “Monetization provides incentive for creators. If you want to work in hockey, it’s crucial that you know there’s a future in it. Monetization provides that. Could be an @NHL creators program? Either way, It’s the best sport on earth. Let us help you cover the game @NHL”
It is very clear that there a bunch of truly pissed off NHL content creators out there. And, as several of the comments have stated, the NHL really needs to start reaching out to these folks and begin cultivating relationships with them. This is how interest in sports spread these days. MLB, the NBA, and the NFL all know this. There is content on YouTube and social media for those leagues all the time.
Hockey is a great game. I know that. Perhaps others will know it, too, if the NHL allows the sport this free promotion.
On December 14, James Harr, the owner of an online store called ComradeWorkwear, announced on social media that he planned to sell a deck of “Most Wanted CEO” playing cards, satirizing the infamous “Most-wanted Iraqi playing cards” introduced by the U.S. Defense Intelligence Agency in 2003. Per the ComradeWorkwear website, the Most Wanted CEO cards would offer “a critique of the capitalist machine that sacrifices people and planet for profit,” and “Unmask the oligarchs, CEOs, and profiteers who rule our world… From real estate moguls to weapons manufacturers.”
But within a day of posting his plans for the card deck to his combined 100,000 followers on Instagram and TikTok, the New York Post ran a front page story on Harr, calling the cards “disturbing.” Less than 5 hours later, officers from the New York City Police Department came to Harr’s door to interview him. They gave no indication he had done anything illegal or would receive any further scrutiny, but the next day the New York police commissioner held the New York Post story up during a press conference after announcing charges against Luigi Mangione, the alleged assassin of UnitedHealth Group CEO Brian Thompson. Shortly thereafter, platforms from TikTok to Shopify disabled both the company’s accounts and Harr’s personal accounts, simply because he used the moment to highlight what he saw as the harms that large corporations and their CEOs cause.
Harr was not alone. After the assassination, thousands of people took to social media to express their negative experiences with the healthcare industry, to speculate about who was behind the murder, and to show their sympathy for either the victim or the shooter—if social media platforms allowed them to do so. Many users reported having their accounts banned and content removed after sharing comments about Luigi Mangione, Thompson’s alleged assassin. TikTok, for example reportedly removed comments that simply said, “Free Luigi.” Even seemingly benign content, such as a post about Mangione’s astrological sign or a video montage of him set to music, was deleted from Threads, according to users.
The Most Wanted CEO playing cards did not reference Mangione, and the cards—which have not been released—would not include personal information about any CEO. In his initial posts about the cards, Harr said he planned to include QR codes with more information about each company and, in his view, what dangers the companies present. Each suit would represent a different industry, and the back of each card would include a generic shooting-range style silhouette. As Harr put it in his now-removed video, the cards would include “the person, what they’re a part of, and a QR code that goes to dedicated pages that explain why they’re evil. So you could be like, ‘Why is the CEO of Walmart evil? Why is the CEO of Northrop Grumman evil?’”
A design for the Most Wanted CEO playing cards
Many have riffed on the military’s tradition of using playing cards to help troops learn about the enemy. You can currently find “Gaza’s Most Wanted” playing cards on Instagram, purportedly depicting “leaders and commanders of various groups such as the IRGC, Hezbollah, Hamas, Houthis, and numerous leaders within Iran-backed militias.” A Shopify store selling “Covid’s Most Wanted” playing cards, displaying figures like Bill Gates and Anthony Fauci, and including QR codes linking to a website “where all the crimes and evidence are listed,” is available as of this writing. Hero Decks, which sells novelty playing cards generally showing sports figures, even produced a deck of “Wall Street Most Wanted” cards in 2003 (popular enough to have a second edition).
Aswe’vesaidmanytimes, content moderation at scale, whether human or automated, is impossible to do perfectly and nearly impossible to do well. Companies often get it wrong and remove content or whole accounts that those affected by the content would agree do not violate the platform’s terms of service or community guidelines. Conversely, they allow speech that could arguably be seen to violate those terms and guidelines. That has been especiallytrue for speech related to divisive topics and during heated national discussions. These mistakes often remove important voices, perspectives, and context, regularly impacting not just everyday users but journalists, human rights defenders, artists, sex worker advocacy groups, LGBTQ+ advocates, pro-Palestinian activists, and political groups. In some instances, this even harms people’s livelihoods.
Instagram disabled the ComradeWorkwear account for “not following community standards,” with no further information provided. Harr’s personal account was also banned. Meta has a policy against the “glorification” of dangerous organizations and people, which it defines as “legitimizing or defending the violent or hateful acts of a designated entity by claiming that those acts have a moral, political, logical or other justification that makes them acceptable or reasonable.” Meta’s Oversight Board has overturnedmultiplemoderation decisions by the company regarding its application of this policy. While Harr had posted to Instagram that “the CEO must die” after Thompson’s assassination, he included an explanation that, “When we say the ceo must die, we mean the structure of capitalism must be broken.” (Compare this to a series of Instagram story posts from musician Ethel Cain, whose account is still available, which used the hashtag #KillMoreCEOs, for one of many examples of how moderation affects some people and not others.)
TikTok reported that Harr violated the platform’s community guidelines with no additional information. The platform has a policy against “promoting (including any praise, celebration, or sharing of manifestos) or providing material support” to violent extremists or people who cause serial or mass violence. TikTok gave Harr no opportunity for appeal, and continued to remove additional accounts Harr only created to update his followers on his life. TikTok did not point to any specific piece of content that violated its guidelines.
On December 20, PayPal informed Harr it could no longer continue processing payments for ComradeWorkwear, with no information about why. Shopify informed Harr that his store was selling “offensive content,” and his Shopify and Apple Pay accounts would both be disabled. In a follow-up email, Shopify told Harr the decision to close his account “was made by our banking partners who power the payment gateway.”
Harr’s situation is not unique. Financial and social media platforms have an enormous amount of control over our online expression, and we’ve long been critical of their over-moderation, uneven enforcement, lack of transparency, and failure to offer reasonable appeals. This is why EFF co-created The Santa Clara Principles on transparency and accountability in content moderation, along with a broad coalition of organizations, advocates, and academic experts. These platforms have the resources to set the standard for content moderation, but clearly don’t apply their moderation evenly, and in many instances, aren’t even doing the basics—like offering clear notices and opportunities for appeal.
Harr was one of many who expressed frustration online with the growing power of corporations. These voices shouldn’t be silenced into submission simply for drawing attention to the influence that they have. These are exactly the kinds of actions that Harr intended to highlight. If the Most Wanted CEO deck is ever released, it shouldn’t be a surprise for the CEOs of these platforms to find themselves in the lineup.
If you only remember two things about the government pressure campaign to influence Mark Zuckerberg’s content moderation decisions, make it these: Donald Trump directly threatened to throw Zuck in prison for the rest of his life, and just a couple months ago FCC Commissioner (soon to be FCC chair) Brendan Carr threatened Meta that if it kept on fact-checking stories in a way Carr didn’t like, he would try to remove Meta’s Section 230 protections in response.
Two months later — what do you know? — Zuckerberg ended all fact-checking on Meta. But when he went on Joe Rogan, rather than blaming those actual obvious threats, he instead blamed the Biden administration, because some admin officials sent angry emails… which Zuck repeatedly admits had zero impact on Meta’s actual policies.
Indeed, this very fact check may be a good example of what I talked about regarding Zuckerberg’s decision to end fact-checking, which is that it’s not as straightforward as some people think, as layers of bullshit may be presented misleadingly around a kernel of truth, and peeling back the layers is important for understanding.
Indeed, this is my second attempt at writing this article. I killed the first version soon after it hit 10,000 words and I realized no one was going to read all that. So this is a more simplified version of what happened, which can be summarized as: the actual threats came from the GOP, to which Zuckerberg quickly caved. The supposed threats from the Biden admin were overhyped, exaggerated, and misrepresented, and Zuck directly admits he was able to easily refuse those requests.
All the rest is noise.
I know that people who dislike Rogan dismiss him out of hand, but I actually think he’s often a good interviewer for certain kinds of conversations. He’s willing to speak to all sorts of people and even ask dumb questions, taking on the role of listeners/viewers. And that’s actually really useful (and enlightening) in certain circumstances.
Where it goes off the rails, such as here, is where (1) nuance and detail matter and (2) where the person he is interviewing has an agenda to push with a message that he knows Rogan will eat up, and knows Rogan does not understand enough to pick apart what really happened.
This is not the first time that Zuckerberg has gone on Rogan and launched a narrative by saying things that are technically true in a manner that is misleading, likely knowing that Rogan and his fans wouldn’t understand the nuances, and would run with a misleading story.
Two and a half years ago, he went on Joe Rogan and said that the FBI had warned the company about the potential for hack and leak efforts put forth by the Russians, which Rogan and a whole bunch of people, including the mainstream media, falsely interpreted as “the FBI told us to block the Hunter Biden laptop story.”
Except that’s not what he said. He was asked about the NY Post story (which Facebook never actually blocked, they only — briefly — blocked it from “trending”), and Zuckerberg very carefully worded his answer to say something that was already known, but which people not listening carefully might think revealed something new:
The background here is that the FBI came to us – some folks on our team – and was like ‘hey, just so you know, you should be on high alert. We thought there was a lot of Russian propaganda in the 2016 election, we have it on notice that basically there’s about to be some kind of dump that’s similar to that’.
But the fact that the FBI had sent out a general warning to all of social media to be on the lookout for disinfo campaigns like that was widely known and reported on way earlier. The FBI did not comment specifically on the Hunter Biden laptop story, nor did they tell Facebook (or anyone) to take anything down.
Still, that turned into a big thing, and a bunch of folks thought it was a big revelation. In part because when Zuck told that story to Rogan, Rogan acted like it was big reveal, because Rogan doesn’t know the background or the details or the fact that this had been widely reported. He also doesn’t realize there’s a huge difference between a general “be on the lookout” warning and a “hey, take this down!” demand, with the former being standard and the latter being likely unconstitutional.
In other words, Zuck has a history of using Rogan’s platform to spread dubious narratives, knowing that Rogan lacks the background knowledge to push back in the moment.
After that happened, I was at least open to the idea that Zuck just spoke in generalities and didn’t realize how Rogan and audience would take what he said and run with it, believing a very misleading story. But now that he’s done it again, it seems quite likely that this is deliberate. When Zuckerberg wants to get a misleading story out to a MAGA-friendly audience, he can reliably dupe Rogan’s listeners.
Indeed, this interview was, in many ways, similar to what happened two years ago. He was relating things that were already widely known in a misleading way, and Rogan was reacting like something big was being revealed. And then the media runs with it because they don’t know the details and nuances either.
This time, Zuckerberg talks about the supposed pressure from the Biden administration as a reason for his problematic announcement last week:
Rogan:What do you think started the pathway towards increasing censorship? Because clearly we were going in that direction for the last few years. It seemed like uh we really found out about it when Elon bought Twitter and we got the Twitter Files and when you came on here and when you were explaining the relationship with FBI where they were trying to get you to take down certain things that were true and real and certain things they tried to get you to limit the exposure to them. So it’s these kind of conversations. Like when did all that start?
So first off, note the framing of this question. It’s not accurate at all. Social media websites have always had content moderation/content policy efforts. Indeed, Facebook was historically way more aggressive than most. If you don’t, your platform fills up with spam, scams, abuse, and porn.
That’s just how it works. And, indeed, Facebook in the early days was aggressively paternalistic about what was — and what was not — allowed on its site. Remember its famously prudish “no nudity” policy? Hell, there was an entire Radiolab podcast about how difficult that was to implement in practice.
So, first, calling it “censorship” is misleading, because it’s just how you handle violations of your rules, which is why moderation is always a better term for it. Rogan has never invited me on his podcast. Is that censorship? Of course not. He has rules (and standards!) for who he platforms. So does Meta. Rejecting some speech is not “censorship”, it’s just enforcing your own rules on your own private property.
Second, Rogan himself is already misrepresenting what Zuckerberg told him two years ago about the FBI. Zuck did not say that the FBI was trying to get Facebook to “take down certain things that were true and real” and “limit the exposure to them.” They only said to be on the lookout for potential attempts by foreign governments to interfere with an election, leaving it up to the platforms to decide how to handle that.
On top of that, the idea that the simple fact of how content moderation works only became public with the Twitter Files is false. The Twitter Files revealed… a whole bunch of nothing interesting that idiots have misinterpreted badly. Indeed we know this because (1) we paid attention, and (2) Elon’s own legal team admitted in court that what people were misleadingly claiming about the Twitter Files wasn’t what was actually said.
From there, Zuck starts his misleading but technically accurate-ish response:
Zuck: Yeah, well, look, I think going back to the beginning, or like I was saying, I think you start one of these if you care about giving people a voice, you know? I wasn’t too deep on our content policies for like the first 10 years of the company. It was just kind of well known across the company that, um, we were trying to give people the ability to share as much as possible.
And, issues would come up, practical issues, right? So if someone’s getting bullied, for example, we deal with that, right? We put in place systems to fight bullying, you know? If someone is saying hey um you know someone’s pirating copyrighted content on on the service, it’s like okay we’ll build controls to make it so we’ll find IP protected content.
But it was really in the last 10 years that people started pushing for like ideological-based censorship and I think it was two main events that really triggered this. In 2016 there was the election of President Trump, also coincided with basically Brexit in the EU and sort of the fragmentation of the EU. And then you know in 2020 there was COVID. And I think that those were basically these two events where for the first time we just faced this massive massive institutional pressure to basically start censoring content on ideological grounds….
So this part is fundamentally, sorta, kinda accurate, which sets up the kernel of truth around which much bullshit will be built. It’s true that Zuck didn’t pay much attention to content policies on the site early on, but it’s nonsense that it was about “giving people a voice.” That’s Zuck retconning the history of Facebook. Remember, they only added things like the Newsfeed (which was more about letting people talk) when Twitter came about and Zuck freaked out that Twitter would destroy Facebook.
Second, he then admits that the company has always moderated, though he’s wrong that it was so reactive. From quite early on (as mentioned above) the company had decently strict content policies regarding how the site was moderated. And, really, much of that was based around wanting to make sure that users had a good experience on the site. So yes, things like bullying were blocked.
But what is bullying is a very subjective thing, and so much of content moderation is just teams trying to tell you to stop being such a jackass.
It is true that there was pressure on Facebook to take moderation challenges more seriously starting in 2016, and (perhaps?!?) if he had actually spent more time understanding trust & safety at that time, he would have a better understanding of the issues. But he didn’t, which meant that he made a mess of things, and then tried to “fix it” with weird programs like the Oversight Board.
But it also meant that he’s never, ever been good at explaining the inherent tradeoffs in trust & safety, and how some people are always going to dislike the choices you make. A good leader of a social network understands and can explain those tradeoffs. But that’s not Zuck.
Also, and this is important, Zuckerberg’s claims about pressure to moderate on “ideological” grounds are incredibly misleading. Yes, I’m sure some people were putting pressure on him around that, but it was far from mainstream and easy to ignore. People were asking him to stop potentially dangerous misinformation that was causing harm. For example, the genocide in Myanmar. Or information around COVID that was potentially legitimately dangerous.
In other words, it was really (like so much of trust & safety) an extension of the “no bullying” rule. The same was true of protecting marginalized groups like LGBTQ+ users or on issues like Black Lives Matter. The demands from users (not the government in those cases) were about protecting more marginalized communities from harassment and bullying.
I’m going to jump ahead because Zuck and Rogan say a lot of stupid shit here, but this article will get too long if I go through all of it. So let’s jump forward a couple of minutes, to where Zuckerberg really flubs his First Amendment 101 in embarrassing ways while trying to describe how Meta chose to handle moderation of COVID misinformation.
Zuckerberg: Covid was the other big one. Where that was also very tricky because you know at the beginning it was, you know, it’s like a legitimate “public health crisis,” you know, in the beginning.
And it’s… even people who are like the most ardent First Amendment defenders… that the Supreme Court has this clear precedent, that’s like all rightyou can’t yell fire in a crowded theater. There are times when if there’s an emergency your ability to speak can temporarily be curtailed in order to get an emergency under control.
So I was sympathetic to that at the beginning of Covid, it seemed like, okay you have this virus, seems like it’s killing a lot of people. I don’t know like we didn’t know at the time how dangerous it was going to be. So, at the beginning, it kind of seemed like okay we should give a little bit of deference to the government and the health authorities on how we should play this.
But when it went from, you know, two weeks to flatten the curve to… in like in the beginning it was like okay there aren’t enough masks, masks aren’t that important to, then, it’s like oh no you have to wear a mask. And you know all the, like everything, was shifting around. It just became very difficult to kind of follow.
In trying to defend Meta’s approach to COVID misinformation, Zuck manages to mangle First Amendment law in a way that’s both legally inaccurate and irrelevant to the actual issues at play.
There’s so much to unpack here. First off, he totally should have someone explain the First Amendment to him. He not only got it wrong, he even got it wrong in a way that is different than how most people get it wrong. We’ve covered the whole “fire in a crowded theater” thing so many times here on Techdirt, so we’ll do the abbreviated version:
It’s not a “clear precedent.” It’s not a precedent at all. It was an offhand comment (in legal terms: dicta, so not precedential) in a case about jailing someone for handing out anti-war literature (something most people today would recognize as pretty clearly a First Amendment problem).
The Justice who said it, Oliver Wendell Holmes, appeared to regret it almost immediately, and in a similar case very shortly thereafter changed his tune and became a much more “ardent First Amendment defender.”
Most courts and lawyers (though there are a few holdouts) insist that whatever precedent there was in Schenck (which again, did not include that line) was effectively overruled a half century later in a different case that rejected the test in Schenck and moved to the “incitement to imminent lawless action” test.
So, quoting “fire in a crowded theater” these days is generally used as a (very bad, misguided) defense of saying “well, there’s some speech that’s so bad it’s obviously unprotected,” but without being able to explain why this particular speech is unprotected.
But Zuck isn’t even using it in that way. He seems to have missed that the whole point of the Holmes dicta (again, not precedent) was to talk about falsely yelling fire. Zuck implies that the (not actual) test is “can we restrict speech if there’s an actual fire, an actual emergency.” And, that’s also wrong.
But, the wrongness goes one layer deeper as well, because the First Amendment only applies to restrictions the government can put on speakers, not what a private entity like Meta (or the Joe Rogan Experience) can do on their own private property.
And then, even once you get past that, Zuck isn’t wrong that there was a lot of confusion about COVID and health in the early days, including lots of false information that came under the imprimatur of “official” sources, but… dude, Meta deliberately made the decision to effectively let the CDC decide what was acceptable even after many people (us included!) pointed out how stupid it was for platforms to outsource their decisions on “COVID misinfo” to government agencies which almost certainly would get stuff wrong as the science was still unclear.
But it wasn’t the White House that pressured Zuck into following the CDC position. Meta (alone among the major tech platforms) publicly declared early in the pandemic (for what it’s worth, when Trump was still President) that its approach to handling COVID misinformation would be based on “guidance” from official authorities like the CDC and WHO. Many of us felt that this was actually Meta abdicating its role and giving way too much power to government entities in the midst of an unclear scientific environment.
But for him to now blame the Biden admin is just blatantly ahistorical.
And from there, it gets worse:
Zuckerberg: This really hit… the most extreme, I’d say, during it was during the Biden Administration, when they were trying to roll out um the vaccine program and… Now I’m generally, like, pretty pro rolling out vaccines. I think on balance the vaccines are more positive than negative.
But I think that while they’re trying to push that program, they also tried to censor anyone who was basically arguing against it. And they pushed us super hard to take down things that were honestly were true. Right, I mean they they basically pushed us and and said, you know, anything that says that vaccines might have side effects, you basically need to take down.
And I was just like,well we’re not going to do that. Like,we’re clearly not going to do that.
Rogan then jumps in here to ask “who is they” but this is where he’s showing his own ignorance. The key point is the last line. Zuckerberg says he told them “we’re not going to do that… we’re clearly not going to do that.”
That’s it. That’s the ballgame.
The case law on this issue is clear: the government is allowed to try to persuade companies to do something. That’s known as using the bully pulpit. What it cannot do is coerce a company into taking action on speech. And if Zuckerberg and Meta felt totally comfortable saying “we’re not going to do that, we’re clearly not going to do that,” then end of story. They didn’t feel coerced.
Indeed, this is partly what the Murthy case last year was about. And during oral arguments, Justices Kavanaugh and Kagan (both of whom had been lawyers in the White House in previous lives) completely laughed off the idea that White House officials couldn’t call up media entities and try to convince them to do stuff, even with mean language.
Here was Justice Kavanaugh:
JUSTICE KAVANAUGH: Do you think on the anger point, I guess I had assumed, thought, experienced government press people throughout the federal government who regularly call up the media and — and berate them. Is that — I mean, is that not —
MR. FLETCHER: I — I — I don’t want
JUSTICE KAVANAUGH: — your understanding? You said the anger here was unusual. I guess I wasn’t —
MR. FLETCHER: So that —
JUSTICE KAVANAUGH: — wasn’t entirely clear on that from my own experience.
Later on, he said more:
JUSTICE KAVANAUGH: You’re speaking on behalf of the United States. Again, my experience is 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.
Justice Kagan felt similarly:
JUSTICE KAGAN: I mean, can I just understand because it seems like an extremely expansive argument, I must say, encouraging people basically to suppress their own speech. So, like 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.
“Literally thousands of times a day in the federal government.” What happened was not even that interesting or unique. The only issue, and the only time it creates a potential First Amendment problem, is if there is coercion.
This is why the Supreme Court rejected the argument in the Murthy case that this kind of activity was coercive and violated the First Amendment. The opinion, written by Justice Coney Barrett, makes it pretty clear that the White House didn’t even apply that much pressure towards Facebook on COVID info beyond some public statements, and instead most of the communication was Facebook sending info to the government (both admin officials and the CDC) and asking for feedback.
The Supreme Court notes that Facebook changed its policies to restrict more COVID info before it had even spoken to people in the White House.
In fact, the platforms, acting independently, had strengthened their pre-existing content moderation policies before the Government defendants got involved. For instance, Facebook announced an expansion of its COVID–19 misinformation policies in early February 2021, before White House officials began communicating with the platform. And the platforms continued to exercise their independent judgment even after communications with the defendants began. For example, on several occasions, various platforms explained that White House officials had flagged content that did not violate company policy. Moreover, the platforms did not speak only with the defendants about content moderation; they also regularly consulted with outside experts.
All of this info is public. It was in the court case. It’s in the Supreme Court transcript of oral arguments. It’s in the ruling in the Supreme Court.
Yet Rogan acts like this is some giant bombshell story. And Zuckerberg just lets him run with it. And then, the media ran with it as well, even though it’s a total non-story. As Kagan said, attempts to persuade the media happen literally thousands of times a day.
It only violates the First Amendment if they move over into coercion, threatening retaliation for not listening. And the fact that Meta felt free to say no and didn’t change its policies makes it pretty clear this wasn’t coercion.
But, Zuckerberg now knows he’s got Rogan caught on his line and starts to play it up. Rogan first asks who was “telling you to take down things” and Zuckerberg then admits that he wasn’t actually involved in any of this:
Rogan: Who is they? Who’s telling you to take down things that talk about vaccine side effects?
Zuckerberg:It was people in the um in the Biden Administration I think it was um…you know I wasn’t involved in those conversations directly…
Ah, so you’re just relaying the information that was publicly available all along and which we already know about.
Rogan then does a pretty good job of basically explaining my Impossibility Theorem (he doesn’t call it that, of course), noting the sheer scale of Meta properties, and how most people can’t even comprehend the scale, and that mistakes are obviously going to happen. Honestly, it’s one of the better “mainstream” explanations of the impossibility of content moderation at scale
Rogan: You’re moderating at scale that’s beyond the imagination. The number of human beings you’re moderating is fucking insane. Like what is… what’s Facebook… what how many people use it on a daily basis? Forget about how many overall. Like how many people use it regularly?
Zuck: It’s 3.2 billion people use one of our services every day
Rogan: (rolls around) That’s…!
Zuck: Yeah, it’s, no, it’s wild
Rogan: That’s more than a third of the planet! That’s so crazy and it’s almost half of Earth!
Zuck: Well on a monthly basis it is probably.
Rogan: UGGH!
But just I want I want to say that though for there’s a lot of like hypercritical people that are conspiracy theorists and think that everybody is a part of some cabal to control them. I want you to understand that, whether it’s YouTube or all these and whatever place that you think is doing something that’s awful, it’s good that you speak because this is how things get changed and this is how people find out that people are upset about content moderation and and censorship.
But moderating at scale is insane. It’s insane. What we were talking the other day about the number of videos that go up every hour on YouTube and it’s banana. It’s bananas. That’s like to try to get a human being that is reasonable, logical and objective, that’s going to analyze every video? It’s virtually impossible. It’s not possible. So you got to use a bunch of tools. You got to get a bunch of things wrong.
And you have also people reporting things. And how how much is that going to affect things there. You could have mass reporting because you have bad actors. You have some corporation that decides we’re going to attack this video cuz it’s bad for us. Get it taken down.
There’s so much going on. I just want to put that in people’s heads before we go on. Like understand the kind of numbers that we’re talking about here.
Like… that’s a decent enough explanation of the impossibility of moderating content at scale. If Zuckerberg wanted to lean into that, and point out that this impossibility and the tradeoffs it creates makes all of this a subjective guessing game, where mistakes often get made and everyone has opinions, that would have been interesting.
But he’s tossed out the line where he wants to blame the Biden administration (even though the evidence on this has already been deemed unproblematic by the Supreme Court just months ago) and he’s going to feed Rogan some more chum to create a misleading picture:
Zuckerberg: So I mean like you’re saying I mean this is… it’s so complicated this system that I could spend every minute of all of my time doing this and not actually focused on building any of the things that we’re trying to do. AI glasses, like the future of social media, all that stuff.
So I get involved in this stuff, but in general we we have a policy team. There are people who I trust there. The people are kind of working on this on a day-to-day basis. And the interactions that um that I was just referring to, I mean a lot of this is documented… I mean because uh you know Jim Jordan and the the House had this whole investigation and committee into into the the kind of government censorship around stuff like this and we produced all these documents and it’s all in the public domain…
I mean basically these people from the Biden Administration would call up our team and like scream at them and curse. And it’s like these documents are… it’s all kind of out there!
Rogan: Gah! Did you record any of those phone calls? God!
Zuckerberg: I don’t no… I don’t think… I don’t think we… but but… I think… I want listen… I mean, there are emails. The emails are published. It’s all… it’s all kind of out there and um and they’re like… and basically it just got to this point where we were like, no we’re not going to. We’re not going to take down things that are true. That’s ridiculous…
Parsing what he’s saying here is important. Again, we already established above a few important facts that Rogan doesn’t understand, and either Zuck doesn’t understand or is deliberately being coy in his explanation: (1) government actors are constantly trying to persuade media companies regarding their editorial discretion and that’s not against the law in any way, unless it crosses the line into coercion, and Zuck is (once again) admitting there was no coercion and they had no problem saying no. (2) He’s basing this not on actual firsthand knowledge but on stuff that is “all kind of out there” because “the emails are published” and “it’s all in the public domain.”
Now, because I’m not that busy creating AI glasses (though I am perhaps working on the future of social media), I actually did pay pretty close attention to what happened with those published emails and the documents in the public domain, and Zuckerberg is misrepresenting things, either on purpose or because the false narrative filtered back to him.
The reason I followed it closely is because I was worried that the Biden administration might cross the First Amendment line. This is not the case of me being a fan of the Biden administration, whose tech policies I thought were pretty bad almost across the board. The public statements that the White House made, whether from then press secretary Jen Psaki or Joe Biden himself, struck me as stupid things to say, but they did not appear to cross the First Amendment line, though they came uncomfortably close.
So I followed this case closely, in part, because if there was evidence that they crossed the line, I would be screaming from the Techdirt rooftops about it.
But, over and over again, it became clear that while they may have walked up to the line, they didn’t seem to cross it. That’s also what the Supreme Court found in the Murthy case.
So when Zuckerberg says that there are published emails, referencing the “screaming and cursing,” I know exactly what he’s talking about. Because it was a highlight of the district court ruling that claimed the White House had violated the First Amendment (which was later overturned by the Supreme Court).
Indeed, in my write-up of that District Court ruling, I even called out the “cursing” email as an example that struck me as one of the only things that might actually be a pretty clear violation of the First Amendment. Here’s what I wrote two years ago when that ruling came out:
Most of the worst emails seemed to come from one guy, Rob Flaherty, the former “Director of Digital Strategy,” who seemed to believe his job in the White House made it fine for him to be a total jackass to the companies, constantly berating them for moderation choices he disliked.
I mean, this is just totally inappropriate for a government official to say to a private company:
Things apparently became tense between the White House and Facebook after that, culminating in Flaherty’s July 15, 2021 email to Facebook, in which Flaherty stated: “Are you guys fucking serious? I want an answer on what happened here and I want it today.”
But then I dug deeper and saw the filing where that quote actually comes from, realizing that the judge in the district court was taking it totally out of context. The ruling made it sound like Flaherty’s cursing outburst was in response to Facebook/Zuck refusing to go along with a content moderation demand.
If that were actually the case, then that would absolutely violate the First Amendment. The problem is that it’s not what happened. It was still inappropriate in general, but not an unconstitutional attack on speech.
What had happened was that Instagram had a bug that prevented the Biden account from getting more followers, and the White House was annoyed by that. Someone from Meta responded to a query, saying basically “oops, it was a bug, our bad, but it’s fixed now” and that response was forwarded to Flaherty, who acted like a total power-mad jackass with the “Are you guys fucking serious? I want an answer on what happened here and I want it today” response.
So here’s the key thing: that heated exchange had absolutely nothing to do with pressuring Facebook on its content moderation policies. That “public domain” “cursing” email is entirely about a bug that prevented the Biden account from getting more followers, and Rob throwing a bit of a shit fit about it.
As Zuck says (but notably no one on the Rogan team actually looks up), this is all “out there” in “the public domain.” Rogan didn’t look it up. It’s unclear if Zuckerberg looked it up.
But I did:
We can still find that response wholly inappropriate and asshole-ish. But it’s not because Facebook refused to take down information on vaccine side effects, as is clearly implied (and how Rogan takes it).
Indeed, Zuckerberg (again!) points out that the company’s response to requests to remove anti-vax memes was to tell the White House no:
Zuck: They wanted us to take down this meme of Leonardo DiCaprio looking at a TV talking about how 10 years from now or something um you know you’re going to see an ad that says okay if you took a Covid vaccine you’re um eligible you you know like uh for for this kind of payment like this sort of like class action lawsuit type meme.
And they’re like, “No, you have to take that down.” We just said, ‘No, we’re not going to take down humor and satire. We’re not going to take down things that are true.“
He then does talk about the stupid Biden “they’re killing people” comment, but leaves out the fact that Biden walked that back days later, admitting “Facebook isn’t killing people” and instead blaming people on the platform spreading misinformation and saying “that’s what I meant.”
But it didn’t change the fact that Facebook refused to take action on those accounts.
So even after he’s said multiple times that Facebook’s response to whatever comments came in from the White House was to tell them “no,” which is exactly what the Supreme Court made clear showed there was no coercion, Rogan goes on a rant as if Zuckerberg had just told him that they did, in fact, suppress the content the White House requested (something Zuck directly denied to Rogan multiple times, even right before this rant):
Rogan: Wow. [sigh] Yeah, it’s just a massive overstepping. Also, you weren’t killing people. This is the thing about all of this. It’s like they suppressed so much information about things that people should be doing regardless of whether or not you believe in the vaccine, regardless… put that aside. Metabolic health is of the utmost importance in your everyday life whether there’s a pandemic or there’s not and there’s a lot of things that you can do that can help you recover from illness.
It prevents illnesses. It makes your body more robust and healthy. It strengthens your immune system. And they were suppressing all that information and that’s just crazy. You can’t say you’re one of the good guys if you’re suppressing information that would help people recover from all kinds of diseases. Not just Covid. The flu, common cold, all sorts of different things. High doses of Vitamin C, D3 with K2 and magnesium. They were suppressing this stuff because they didn’t want people to think that you could get away with not taking a vaccine.
Dude, Zuck literally told you over and over again that they said no to the White House and didn’t suppress that content.
But Zuck doesn’t step in to correct Rogan’s misrepresentations, because he’s not here for that. He’s here to get this narrative out, and Rogan is biting hard on the narrative. Hilariously, he then follows it up by saying how the thing that Zuck just said didn’t happen, but which Rogan is chortling along as if it did happen, proves the evils of “distortion of facts” and…. where the hell is my irony font?
Rogan: This is a crazy overstep, but scared the shit out of a lot of people… redpilled as it were. A lot of people, because they realized like, oh, 1984 is like an instruction manual…
Zuck: Yeah, yeah.
Rogan: It’s like this is it shows you how things can go that way with wrong speak and withbizarre distortion of facts.
I mean, you would know, wouldn’t you, Joe?
From there, they pivot to a different discussion, though again, it’s Zuckerberg feeding Rogan lines about how the US ought to “protect” the US tech industry from foreign governments, rather than trying to regulate them.
A bit later on, there actually is a good discussion about the kinds of errors that are made in content moderation and why. Rogan (after spending so much time whining about the evils of censorship) suddenly turns around and says that, well, of course, Facebook should be blocking “misinformation” and “outright lies” and “propaganda”:
Rogan: But you do have to be careful about misinformation! And you have to be careful about just outright lies and propaganda complaints, or propaganda campaigns rather. And how do you differentiate?
Dude, like that’s the whole point of the challenge here. You yourself talked about the billions of people and how mistakes are made because so much of this is automated. But then you were misleadingly claiming that this info was taken down over demands from the government (which Zuckerberg clearly denied multiple times), and for you to then wrap back around to “but you gotta take down misinformation and lies and propaganda campaigns” is one hell of a swing.
But, as I said, it does lead to Zuck explaining how confidence levels matter, and how where you set those levels will cover both how much “bad” content gets removed, but also how much is left up and how much innocent content gets accidentally caught:
Zuck: Okay, you have some classifier that’s it’s trying to find say like drug content, right? People decide okay, it’s like the opioid epidemic is a big deal, we need to do a better job of cracking down on drugs and drug sales. Right, I don’t I don’t want people dealing drugs on our networks.
So we build a bunch of systems that basically go out and try to automate finding people who are who are dealing with dealing drugs. And then you basically have this question, which is how precise do you want to set the classifier? So do you want to make it so that the system needs to be 99% sure that someone is dealing drugs before taking them down? Do you want to to be 90% confident? 80% confident?
And then those correspond to amounts of… I guess the the statistics term would be “recall.” What percent of the bad stuff are you finding? So if you require 99% confidence then maybe you only actually end up taking down 20% of the bad content. Whereas if you reduce it and you say, okay, we’re only going to require 90% confidence now maybe you can take down 60% of the bad content.
But let’s say you say, no we really need to find everyone who’s doing this bad thing… and it doesn’t need to be as as severe as as dealing drugs. It could just be um I mean it could be any any kind of content of uh any kind of category of harmful content. You start getting to some of these classifiers might have you know 80, 85% Precision in order to get 90% of the bad stuff down.
But the problem is if you’re at, you know, 90% precision that means one out of 10 things that the classifier takes down is not actually problematic. And if you filter… if you if you kind of multiply that across the billions of people who use our services every day that is millions and millions of posts that are basically being taken down that are innocent.
And upon review we’re going to look at and be like this is ridiculous that this thing got taken down. Which, I mean, I think you’ve had that experience and we’ve talked about this for for a bunch of stuff over time.
But it really just comes down to this question of where do you want to set the classifiers so one of the things that we’re going to do is basically set them to… require more confidence. Which is this trade-off.
It’s going to mean that we will maybe take down a smaller amount of the harmful content. But it will also mean that we’ll dramatically reduce the amount of people who whose accounts were taken off for a mistake, which is just a terrible experience.
And that’s all a good and fascinating fundamental explanation of why the Masnick Impossibility Theorem remains in effect. There are always going to be different kinds of false positives and false negatives, and that’s going to always happen because of how you set the confidence levels of the classifiers.
Zuck could have explained that many of the other things that Rogan was whining about regarding the “suppression” of content around COVID (which, again, everyone but Rogan has admitted was based on Facebook’s own decision-making, not the US government), was quite often a similar sort of situation, where the confidence levels on the classifiers may have caught information it shouldn’t have, but which the company (at the time) felt had to be set at that level to make sure enough of the “bad” content (which Rogan himself says they should take down) gets caught.
But there is no recognition of how this part of the conversation impacts the earlier conversation at all.
There’s more in there, but this post is already insanely long, so I’ll close out with this: as mentioned in my opening, Donald Trump directly threatened to throw Zuck in prison for the rest of his life if Facebook didn’t moderate the way he wanted. And just a couple months ago, FCC Commissioner (soon to be FCC chair) Brendan Carr threatened Meta that if it kept on fact-checking stories in a way Carr didn’t like, he would try to remove Meta’s Section 230 protections in response.
None of that came up in this discussion. The only “government pressure” that Zuck talks about is from the Biden admin with “cursing,” which he readily admits they weren’t intimidated by.
So we have Biden officials who were, perhaps, mean, but not so threatening that Meta felt the need to bow down to them. And then we have Trump himself and leading members of his incoming administration who sent direct and obvious threats, which Zuck almost immediately bowed down to and caved.
And yet Rogan (and much of the media covering this podcast) claims he “revealed” how the Biden admin violated the First Amendment. Hell, the NY Post even ran an editorial pretending that Zuck didn’t go far enough because he didn’t reveal all of this in time for the Murthy case. And that’s only because the author doesn’t realize he literally is talking about the documents in the Murthy case.
The real story here is that Zuckerberg caved to Trump’s threats and felt fine pushing back on the Biden admin. Rogan at one point rants about how Trump will now protect Zuck because Trump “uniquely has felt the impact of not being able to have free speech.” That seems particularly ironic given the real story: Zuckerberg caved to Trump’s threats while pushing back on the Biden admin.
Zuckerberg knew how this would play to Rogan and Rogan’s audience, and he got exactly what he needed out of it. But the reality is that all of this is Zuck caving to threats from Trump and Trump officials, while feeling no coercion from the Biden admin. As social media continues to grapple with content moderation challenges, it would be nice if leaders like Zuckerberg were actually transparent about the real pressures they face, rather than fueling misleading narratives.
But that’s not the world we live in.
Strip away all the spin and misdirection, and the truth is inescapable: Zuckerberg folded like a cheap suit in the face of direct threats from Trump and his lackeys, while barely batting an eye at some sternly worded emails from Biden officials.
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As I noted when the Ninth Circuit Appeals Court handed down its original decision back in 2023, I didn’t care much for the plaintiff, but I did care quite a bit about the First Amendment. Less-than-ideal litigants make some pretty good caselaw, and that’s how it went here.
The plaintiff challenging Oregon’s surreptitious recording law was Project Veritas, a right-wing bunch of agitators that tends to rely on heavily edited recordings to prove whatever point it’s trying to make. But its tactics aren’t all that distinguishable from more credible forms of journalism. The same sort of thing is essential to whistleblowing. All that really separates Project Veritas from these other things is its general lack of ethics.
That being said, it raised a valid point in court. And, on appeal, the Ninth Circuit Appeals Court agreed with its allegations, finding that Oregon’s law against surreptitious recordings violated the Constitution.
Applying Animal Legal Def. Fund. v. Wasden, 878 F.3d 1184 (9th Cir. 2018), the panel held that section 165.540(1)(c) regulates protected speech (unannounced audiovisual recording) and is content based because it distinguishes between particular topics by restricting some subject matters (e.g., a state executive officer’s official activities) and not others (e.g., a police officer’s official activities). As a content-based restriction, the rule fails strict scrutiny review because the law is not narrowly tailored to achieving a compelling governmental interest in protecting conversational privacy with respect to each activity within the proscription’s scope, which necessarily includes its regulation of protected speech in places open to the public.
The dissent thought otherwise, claiming the law protected citizens’ right to “conversational privacy,” thus basically making Oregon a two-party consent state. More oddly, the dissent claimed the fact that surreptitious recordings could be shared more widely and quickly than when the law was first crafted was reason enough to ignore the obvious First Amendment implication of banning this form of subterfuge.
In other words, in Project Veritas’s view, having one’s oral communication secretly recorded imposes no greater burden on privacy than merely having the same comments heard—never mind that recorded comments can be forwarded to vast audiences, posted on the internet in perpetuity, selectively edited, presented devoid of context, or manipulated using modern technology.
But that’s always been the case with recordings. They can be manipulated, edited, and shared. That it happens more quickly now doesn’t really change anything.
Except that it apparently does. The Ninth Circuit reconvened for an en banc hearing and has flipped its own script. According to the court’s (extremely long) decision [PDF], the problem here isn’t any of these things necessarily. It’s the other thing: too much scrutiny.
That’s where the court decided it went wrong. It applied to high a level of scrutiny to something it has now chosen to portray as government speech, even though it’s really the opposite — a government incursion on free speech protections.
First, it says the law is content-neutral, in that it applies to the act of recording, rather than the contents of the recordings.
[The statute] does not “draw[ ] distinctions based on the message a speaker conveys,” and it was not adopted because of the government’s “disagreement with the [speaker’s] message.”
While that’s true, it kind of sidesteps the reality of imposing this limitation on people engaged in journalism or whistleblowing, who will once again find these actions illegal. So, it does affect the messages a speaker “conveys,” even if it doesn’t directly affect the person doing the literal speaking when the recording is being made.
Having decided that, the Appeals Court lowers the scrutiny bar and finds it’s much easier for the law to clear it.
To further its interest in preserving conversational privacy, Oregon adopted a relatively modest notice requirement. Absent an applicable exception, Project Veritas must inform participants in a conversation that they will be recorded before initiating a recording. Keeping the purpose of the statute in mind, section 165.540(1)(c) is exceptionally well tailored to protecting Oregonians’ private conversations. By requiring that participants in a conversation be informed before an audio recording begins, but not requiring that they consent to the recording, the statute minimizes the infringement upon Project Veritas’s journalistic efforts while still protecting the interviewees’ right to knowingly participate in Project Veritas’s speech—or not. Once a person is on notice that she will be recorded, she may choose to speak or remain silent. Either way, a noticed recording does not violate a privacy interest. Moreover, consistent with Oregon’s interest in conversational privacy, the statute does not sweep in photography or video recordings; it applies only to recordings of face-to-face oral communications.
Oregon’s statutory scheme is well tailored because it also accounts for some settings in which people cannot reasonably expect not to have their oral statements recorded…. These exceptions permit open recordings at public gatherings, including protests, and private meetings in which participants should reasonably expect that they will be recorded….
It also says journalists for years have engaged in journalism without secretly recording people. And since they’ve been able to publish exposes without this form of personal intrusion, apparently it shouldn’t be an option for anyone. If people choose not to speak after being informed they’re being recorded, no one’s rights are harmed. It’s perhaps better put in the court’s citations (the claim that surreptitious recordings allow people to speak for others without their consent), but the end result is something that’s just going to lend itself to abuse by government officials, even if the law specifically contains some small exceptions excluding (some) public employees from being covered by this law.
The dissent sounds more like the original opinion delivered by this court.
Oregon’s law is grossly overbroad and not narrowly tailored to advance the state’s interest in conversational privacy (even assuming intermediate scrutiny applies). Oregon prevents citizens from recording even in public areas if they do not announce that they are audiotaping. Oregon thus tramples on people’s ability to record and report on a large swath of public and newsworthy events. And because the law bans the taping of conversations where there is no reasonable expectation of privacy, Oregon’s statute is not narrowly tailored to further the state’s interest in conversational privacy.
In any event, Oregon’s law should be subject to strict scrutiny, not intermediate scrutiny, because the statute is not content-neutral. The statute has a law-enforcement exception that allows citizens to legally record law enforcement officials—but no one else—without announcing that they are recording them. Oregon has essentially carved out only law enforcement matters from its ban on unannounced recording. Because this is a content-based restriction, strict scrutiny applies—and Oregon’s law must fall to the wayside…
Unfortunately, this time around it’s the dissent and so it ultimately has no effect on Oregon’s law. Project Veritas is now back where it started. If it wants to challenge this, it will have to ask the Supreme Court to take a look at it. Given that court’s lack of interest in fielding cases, much less engaging in robust defense of certain constitutional rights, this might be a lost cause even with a plaintiff more than half the current justices probably approve of. After all, striking this law down just means some of their conservative buddies might be “victimized” by surreptitious recordings in the future. And that’s probably not a risk they’re willing to take.
We’re still waiting for the Supreme Court to rule on the TikTok ban case, which is expected to come today or tomorrow. But things are getting increasingly silly. The Biden administration, which actively pushed for the ban and eagerly signed it into law, is now making a last-ditch effort to… keep the app operating, even as the Supreme Court may side with [checks notes] the administration’s own Solicitor General who last week told the court that the law needed to go into effect.
This is according to NBC reporters who have the scoop:
President Joe Biden’s administration is considering ways to keep TikTok available in the United States if a ban that’s scheduled to go into effect Sunday proceeds, according to three people familiar with the discussions.
“Americans shouldn’t expect to see TikTok suddenly banned on Sunday,” an administration official said, adding that officials are “exploring options” for how to implement the law so TikTok does not go dark Sunday.
That story comes out a few hours after a similar report detailing how President-elect Donald Trump’s team has their own plans to “save TikTok.”
President-elect Donald Trump is considering an executive order once in office that would suspend enforcement of the TikTok ban-or-sale law for 60 to 90 days, buying the administration time to negotiate a sale or alternative solution — a legally questionable effort to win a brief reprieve for the Chinese-owned app now scheduled to be banned on Sunday nationwide.
Trump has been mulling ways to save the day for the wildly popular video app, talking through unconventional dealmaking and legal maneuvers such as an executive order that would unravel the law passed by Congress last year with bipartisan support, according to two people familiar with the deliberations, who spoke on the condition of anonymity to discuss private talks.
Trump has expressed a keen interest in being seen as rescuing a platform on which he’s been told he’s widely admired…
To recap this utterly stupid situation, let’s review the key facts here. Donald Trump was the first President who tried to ban TikTok during his last administration, only to have that attempt rejected by the courts as unconstitutional.
Subsequently, last year, the Biden administration joined forces with a large bipartisan majority to try a “more legal” way of banning the app, and they all celebrated when they bundled the TikTok ban with funding for Ukraine, Israel, and Taiwan.
Trump flipped his position after getting a big donation from a billionaire friend who happens to own a huge chunk of TikTok’s parent company, ByteDance. And, as noted, Trump filed an amicus brief with the Supreme Court, essentially asking the court to delay enforcement so that he, in his view, the super genius social media deal maker (insert sarcasm font), could swoop in and make a deal to save the app.
So, now both of these Presidents, who have both tried to ban TikTok, are suddenly both claiming they want to save TikTok just as the Supreme Court seems poised to likely allow the ban to go through… and meanwhile the kids on TikTok start embracing even crazier apps from China.
All day yesterday, you could hear various politicians in DC seemingly freak out as they watched kids eagerly embrace other Chinese apps while mocking the TikTok ban. And now it appears that the two Presidents, both of whom insisted on banning the app, are (way too late) realizing just how disconnected from kids this makes them look.
All of this continues to make the political class look like a bunch of absolute dipshits who have no clue what they’re doing.
There have been very few times I’ve encountered something in life that feels like it was absolutely made specifically for me. The Deadpool movie series is one of those few things. For my sensibilities, they’re just about perfect. And one of my favorite aspects of the films is the fourth-wall-breaking nature of the main character. Deadpool will often look into the camera and talk to the audience in a way that acknowledges that he’s in a movie. Examples of this are legion: Deadpool referring to the X-Men house smelling like Patrick Stewart, complaints in movie about licensing restrictions preventing cool cameos by other Marvel characters, or the narration in the 2nd film’s opener about how the entire movie was in a fact a “family movie.”
The point here is that cultural references that would normally have no place in a superhero movie abound. Some of those references even revolve around lead actor Ryan Reynold’s personal life. For instance, in Deadpool & Wolverine, a multiverse version of Deadpool that is female, Ladypool, was played by Reynolds’ wife, Blake Lively. Lively recently sued a director and co-star of a film she was in, Justin Baldoni, and while Baldoni had threatened to sue her back, instead he… sued the NY Times for reporting on Lively’s accusations. Lively sued over accusations of some very gross workplace behavior, among other things, whereas Baldoni is arguing, um, that the NY Times reporting on Lively’s accusations is defamation and… fraud?
Those accusations included, for instance, Baldoni attempting to pressure Lively over her physique in the movie shortly after she had a child, sharing inappropriate content with castmembers, and talking openly about sexual topics. Baldoni, meanwhile, has been quite famous for portraying himself as a really nice guy and talking openly about how he’s a “feminist.”
What does any of this have to do with Deadpool? Well, another multiverse character that shows up is Nicepool, an unmasked, long-haired version of the titular character. And fans noticed some similarities to the details surrounding the accusations Lively has made against Baldoni.
The particular moments in Deadpool & Wolverine that echo Lively’s claims against Baldoni include Nicepool’s lines about Ladypool “snapping back” into shape after having a baby and following that up with “It’s okay, I identify as a feminist”—since Baldoni touts his status as a feminist in his podcast. A deleted scene in Deadpool & Wolverine also saw Nicepool making reference to a feminist podcast; that latter scene in particular helped the “Baldoni is Nicepool?” theory go viral.
And viral it went, indeed. Major entertainment media sources even picked this up and ran with it.
I will make no claims as to the veracity of Lively’s claims for the purposes of this post. I will say that every action Baldoni has taken since appears to be designed to keep those claims in the headlines for as long and as loud as possible. And the fact that, despite suggesting he would sue Lively directly, he hasn’t… seems telling. Also, suing the New York Times for reporting on all of this? That is a very silly gambit unlikely to end in any kind of victory for Baldoni and most certainly Streisanding the attention on the accusations against him through the proverbial roof.
But Baldoni wasn’t done there. Once the speculation about Nicepool started, he fired off a litigation hold to Disney and Marvel, once again propelling all of this back into the news.
According to Variety, Baldoni’s lawyers are using the accusation as grounds for issuing a litigation hold letter which calls on Disney and Marvel Studios to retain “documents and data” in regards to Baldoni and “Nicepool.”
The litigation letter presented by Baldoni’s team asks Marvel and Disney to preserve “any and all documents relating to the development of the ‘Nicepool’ character” in addition to “communications relating to the development, writing, and filming of storylines and scenes featuring ‘Nicepool’” and “all documents relating to or reflecting a deliberate attempt to mock, harass, ridicule, intimidate, or bully Baldoni through the character of ‘Nicepool.’”
It’s hard to see the strategy here. I suppose that perhaps there might be some utility in building towards a defamation and/or harassment case using whatever can be dug up from Disney and Marvel. But, frankly, I doubt it will be much. And the content that appears in the movie is very much going to be protected speech on First Amendment grounds, given its parody nature and the extremely veiled references it makes (if it’s even making those references at all).
Using myself as a convenient test case, I had zero idea who Baldoni was until I caught wind of this whole mess with Lively, his suit against the New York Times, and most recently this legal notice sent to Disney and Marvel. Now I don’t know that I could forget his name, his image, nor the accusations leveled against him even if I tried.
So if the impetus for all this action by Baldoni was over anger at the public nature of these accusations, well, it seems he is working against that purpose at the moment.
We’re at the halfway point of January, and that means we’re at the halfway point of the latest edition of our public domain game jam, Gaming Like It’s 1929! As in past years, we’re celebrating the entry of new works into the public domain by calling on game designers of all stripes and levels of experience to create digital and analog games based on these now-copyright-free works from 1929.
We’ve already gotten a few interesting early entries, and we expect a lot more to come in as the deadline approaches — but for now that deadline is still more than two weeks away, and that’s still plenty of time to get started and build a game of your own.
As usual, we’ll be awarding prizes to winners in six categories. Every entry has a shot at either the Best Analog Game or Best Digital Game award, but if you don’t feel like competing for those coveted titles, you can also tighten your focus: put your art and design skills to work for the Best Visuals prize, do justice to a work you love for the Best Adaptation prize, mix and match an interesting selection of sources for the Best Remix prize, or dive deep into obscure and unexpected sources for the Best Deep Cut prize. Some of the most intriguing and surprising games from past jams were squarely aimed at these special categories!
If you want to get involved, head on over to the game jam page on Itch to read the full rules and sign up — then start designing! And for those who are already hard at work, we’re excited to see what you’re cooking up. The jam runs through the end of January, and then we’ll be testing out all the entries to select our winners. Thanks to everyone who’s getting involved and showing why a robust and growing public domain matters.
Mark Lemley is one of, if not the biggest names in IP law. So when Lemley makes a move, it’s worth paying attention. And that’s exactly what happened this week when he announced that he has “fired Meta as a client.”
There are various lists that come out from time to time about the “most cited” law professors, and on recent lists Lemley is always highly ranked. On IP law/Cyberlaw in particular, he’s almost always at the top. Here’s a list from 2013-2017 that shows him not just as the most cited cyberlaw professor, but with the number of citations to his works that is more than double the second person on the list (Lemley’s 2200 citations to Robert Merges’ 920).
Even outside of cyberlaw, he is near the top of the list. UChicago’s big “most cited legal scholars of all time” list has him at number eight, and given that some of the names ahead of him are dead and that list is from three years ago (and he keeps publishing, which I know because I have a bunch of his papers that I have open in tabs that I intended to write about but haven’t yet gotten to…), he’s likely even higher on that list.
No matter how you count it, Lemley is in the Michael Jordan/LeBron James realm of legal scholars, widely recognized as one of the greatest.
Anyway, beyond being an incredibly insightful and prolific legal scholar, he has also been a practicing lawyer for many years as well, working on a number of high-profile cases.
And earlier this week, he announced that he has “fired Meta as a client.” Lemley was representing Meta in the Kadrey v. Meta lawsuit regarding Meta’s use of books in training its AI. And, as the docket shows, on Monday, he withdrew as an attorney for Meta:
As Lemley noted on various social media profiles, he cannot stomach what he sees as Zuckerberg’s embrace of nonsense and this is how he is responding to “Mark Zuckerberg and Facebook’s descent into toxic masculinity and Neo-Nazi madness.”
I know that some people will get all huffy about this (you know who you are, commenters), but this is a principled stand. And it’s also one that could have a real impact on Meta, given Lemley’s knowledge, legal skills, and respect in the legal community.
A design for the Most Wanted CEO playing cards
