This month’s testimony in Arizona by the former solicitor general of Missouri on how then-Secretary of State Katie Hobbs illegally censored her political opponents has taken on new significance in light of a U.S. Supreme Court ruling on Friday.
The Supreme Court agreed to take up a case and decide whether government officials, like Hobbs, can suppress speech by conservatives on platforms like Facebook, YouTube and X. The case, known as Murthy v. Missouri, stems from a suit brought by five social media users and the Republican attorneys general of Missouri and Louisiana.
The attorney in that case, Dean John Sauer, testified in detail on Hobbs’ actions in front of the Arizona State House of Representatives’ Ad Hoc Committee on Oversight, Accountability, and Big Tech of the Arizona House of Representatives, chaired by Rep. Alex Kolodin.
Sauer, the former solicitor general of Missouri, frequently refers to the Elections Infrastructure Information Sharing & Analysis Center (EI-ASAC) and the Cybersecurity & Infrastructure Security Agency (CISA) and the Secretary of State’s interaction with them and other federal level groups in his testimony.
The EI-ISAC claims to be “a community of dedicated election officials and cybersecurity professionals working side-by-side to ensure the integrity of elections among U.S. State, Local, Tribal, and Territorial (SLTT) governments.”
CISA describes itself as the nation’s “cyber and infrastructure security agency, designed not to be another government bureaucracy but something much more akin to a public/private collaborative.”
In truth, according to Sauer and other critics, EI-ASAC and CISA became little more than arms of the government intent on squelching “core political speech,” through private companies at the behest of Hobbs and other political actors.
“…What’s being flagged in those emails is absolutely core political speech, including core political speech of your direct political opponents,” testified Sauer.
“I reviewed those emails,” said Sauer, referring to emails obtained through a public record’s request from the Arizona Secretary of State, “and I find an astonishing series of takeaways. First of all, it’s clear that those emails are examples of the very federal national security consortium that was set up in 2020. There’s a direct participation of Arizona State officials in that and as I went through those emails, I thought I had a number of key takeaways.
“First of all, you see emails from 2020, 2021, and 2022 so it’s a yearslong process. It’s not the sort of thing that shows sign of flagging any time soon. Once state officials’ kind of get a hold of the power and silence speech on social media they don’t like – they’re unlikely to relinquish it voluntarily,” said Sauer. “Secondly you see you a series of emails where they’re emailing reports of misinformation directly to the platforms, but also they’re emailing them to the very alphabet soup of agencies that I talked about earlier; EI-ASAC, which is a clearing house funded by the federal national security state to ensure that there can be – that that gives the backing of the federal national security state to these reports of disinformation from state and local officials.
“You see multiple emails where the Arizona Secretary of State’s Office is participating in this very federal censorship apparatus that was set up at the point of a federal bayonet. Thirdly if you look at those emails you see the highest levels of the Secretary of State’s Office involved. It isn’t sort of career staffers who decided to do this on their own,” claimed Sauer. “Almost all the reports come from the communications director who’s a very senior sensitive officer within the Secretary of State’s Office and some of them come from the Secretary of State herself. Fourthly what’s being flagged in those emails is absolutely core political speech, including core political speech of your direct political opponents.”
“There’s multiple emails or tweets or social media posts by the Arizona Republican party are flagged by the Secretary of State’s office to the platform saying please take down off social media what the Arizona Republican party states. There’s another where a senator elect published a long series of posts, I believe on Facebook about election integrity and election concerns and the request from the Secretary of State’s office is not ‘we disagree with this, here’s our counter speech,’ it is ‘take that down so nobody can read it.’ So, there’s an attempt to silence political opponents that goes on here,” stated Sauer.
“What you see, is repeated emails for the Secretary of State’s Office is not just saying take down this post or that post is expressing disinformation but what they say to the platforms is ‘we’re flagging an entire account. We want an entire social media account examined.” They want to silence not just acts of speech but the speakers themselves,” argued Sauer. “’These disfavored speakers we don’t want them to be able to talk at all on social media.’”
“You see situations where the Arizona Secretary State’s Office is engaged in its own bit of misinformation when it’s doing the flagging it’s mischaracterizing the posts that it’s trying to get taken down from social media in its emails to the platforms and to the federal consortium and saying for example there’s an email chain where somebody was trying to lobby the Secretary of State’s office about the eligibility of Kamala Harris to be on the ballot in 2020 and the Secretary of State’s Office says ‘take this down because it falsely implies that Secretary Hobbs supports this. Well, if you read that email there’s nothing in it suggests that Secretary Hobbs supported it was just a mischaracterization that there was an engagement in their own misinformation when they were flagging them and that one. In fact, the platform saw through it and they said, ‘we don’t see any violation of our policies here,” alleged Sauer. “And in response to that, there’s an internal chain where they say – make – derogatory comments about Facebook and how terrible it is for not taking down the misinformation.”
Sauer testified that the censorship was far more insidious than previously thought.
“In the election Integrity partnership, you see an attempt to throttle entire narratives not just individual acts of speech but umbrella of speech. Entire narratives of speech,” said Sauer.
Kolodin called on Sauer, Carl Szabo, Vice-President and General Counsel at NetChoice, and professor of Internet Law at George Mason University, Ilya Shapiro to testify before the committee, who proposed potential reforms for consideration in the upcoming legislative session. These include measures to enhance transparency, impose record-keeping requirements, and regulate the conduct of state officials and social media platforms. The committee also explored the concept of “jawboning,” which involves the application of pressure and coercion by government officials to compel private social media companies to restrict user speech.
“The committee gathered insights from distinguished speakers across the nation to gain a deeper understanding of emerging issues and legal proceedings related to Free Speech in the face of increasing concerns about government interference in social media platforms,” said Representative Kolodin. “As emphasized by our panel of speakers, the government cannot do indirectly what it may not directly do itself. Any forthcoming legislation or regulation must be guided by this principle.”