December 18, 2020 "Information Clearing House" -  A long-standing and vehement criticism of Joe Biden is that legislation he championed as a Senator in the 1980s and 1990s, particularly his crime bill of 1994, contributed to the mass incarceration of Americans generally and African-Americans specifically.

Among the many on the left and libertarian right who have voiced this criticism (along with President Trump) is then-Senator Kamala Harris, who said during the 2020 Democratic primary race that Biden’s “crime bill -- that 1994 crime bill -- it did contribute to mass incarceration in our country.” When Hillary Clinton was running for President in 2015, Bill Clinton, who as president signed Biden’s bill into law, told the NAACP: “I signed a bill that made the problem worse. And I want to admit it.”

Sen. Cory Booker (D-NJ) told Biden during a 2019 presidential debate: “There are people right now in prison for life for drug offenses because you stood up and used that tough-on-crime phony rhetoric that got a lot of people elected but destroyed communities like mine.” Booker then said in an interview with The Huffington Post that that Biden’s “crime bill was shameful, what it did to black and brown communities like mine [and] low-income communities from Appalachia to rural Iowa,” also denouncing it for “overwhelmingly putting people in prison for nonviolent drug offenses that members of Congress and the Senate admit to breaking now.”

In 2016, author and scholar Michele Alexander argued that Hillary did not deserve the votes of black people due to her and her husband’s support for numerous bills, including Biden’s 1994 crime bill, that led to the mass incarceration of African-Americans. Harvard’s Cornel West said in 2019: “When [Biden] says [the 1994 crime bill] didn't contribute to mass incarceration, I tell him he has to get off his symbolic crack pipe."

While that debate over the damage done by Biden’s crime bill has long raged in Democratic Party politics and the criminal justice reform movement, it is now barred from being aired on the Facebook-owned social media giant Instagram, or at least is formally denounced as disinformation. With Joe Biden about to enter the White House — one that will exercise significant influence in determining Silicon Valley’s interests, will be filled with tech executives, and was made possible in large part by Silicon Valley’s largesse poured into the Biden/Harris campaign — Instagram has arrogated unto itself the power to declare these well-established criticisms of Biden and his crime bill to be “False” and having “no basis in fact.”

As first noted on Monday by former Sanders campaign organizer Ben Mora, Instagram publicly denounced as “False” a post on Sunday by the left-wing artist and frequent Biden critic Brad Troemel, who has more than 107,000 followers on that platform. Troemel’s post said nothing more than what Biden’s chosen running mate, Kamala Harris, has herself said, as well as numerous mainstream media outlets and countless criminal justice reform advocates have long maintained.

Troemel posted a 1994 photo of a smiling, mullet-sporting Biden standing next to then-President Bill Clinton. The photo contained this caption: “Find someone that looks at you the way Biden looked at Clinton after Clinton signed Biden’s crime bill into law. Bringing mass incarceration to black Americans.” This was the same photo and caption which an anonymous Trump supporter under the name “realtina40” first posted back in June.

Shortly after Troemel posted this on Sunday, Instagram appended a note in red letters, with a warning sign that read: “Learn why fact-checkers have indicated that this is false.” That was followed by a note plastered over Troemel’s original post with the title: “False,” and which claimed “independent fact-checkers say this information has no basis in fact.” The same thing was done by Instagram to the original post from “realtina40” back in June.

This is not the first time Troemel has been censored by Instagram for posting criticisms of Biden. In response to questions, he told me he first earned the “false” label when posting a meme in April which he had created that mocked Biden’s campaign messaging. Instagram’s retaliation happened after the Biden campaign loudly complained about Troemel’s satirical ad. Biden campaign operatives falsely blamed the Trump campaign for having created it, and then induced Twitter to censor it.

As Troemel told me: “Here you can see Dems using the Russia-tinged cover of disinformation as a way to discredit any and all criticism of Biden found on social media.” When Troemel re-posted that meme last month with the clear notation that it was satirical, Instagram began “shadow banning” him: severely limiting the reach of his posts. It was those events — all involving Troemel’s criticisms of Biden from the left — that caused Instagram to heavily scrutinize his postings, culminating in its blurring of his latest post with a “False” label that contained these well-documented criticisms of Biden’s crime bill.

The only thing that is demonstrably “false” here is Instagram’s Biden-shielding assertion that there is a “fact-checking” consensus that this criticism of Biden’s 1994 crime bill is false. It is true that one media outlet, USA Today, fact-checked the identical claim posted back in June by the anonymous Instagram user and concluded that “our research finds that while the crime bill did increase the prison population in states, it did not bring about a mass incarceration relative to earlier years.” But that article so concluded even while admitting that Biden’s “crime bill did increase the prison population in states” and “any increase in the overall prison population would automatically translate into a larger number of Black inmates.” The article’s own premises thus bolster, not refute, the claim at issue.

But numerous other media outlets and fact-checking organizations — far more than just one — concluded the opposite: namely, that there is at least a reasonable and substantial basis for these claims about Biden’s bill:

• PolitiFact rated as only “Half True” Biden’s claim that the 1994 crime bill “did not generate mass incarceration,” noting the bill provided funds to states on the condition that they force prisoners to serve longer sentences and that it bolstered the tough-on-crime climate that led to higher incarceration rates in the states (that was the same point Bill Clinton made to the NAACP: “the federal law set a trend…. [W]e had a lot people who were locked up, who were minor actors, for way too long”);
• The Washington Post’s designated fact-checker Glenn Kessler assigned two Pinocchios to Biden’s insistence that his crime bill “did not generate mass incarceration,” noting that “the bill encouraged states to build more prisons — with more money coming to them if they increased penalties.” Kessler cited a Brennan Center report that “the 1994 Crime Bill is justly criticized for encouraging states to build and fill new prisons.”

  The Post added: “There are many factors that contributed to the United States having such a high incarceration rate, but few dispute the crime bill was a contributor. Bill Clinton has acknowledged this.” The paper’s “two Pinocchio” rating means Biden’s denial contains “significant omissions and/or exaggerations….Similar to ‘half true’”);

• CNN purported to fact-check the same claims from Biden and found that Biden’s denial “misses the broader impact that federal policy can have on the way that states incarcerate, including the influence of federal money,” concluding that the view that the 1994 crime bill was a significant factor in mass incarceration was, at the very least, debatable.
• The fact-check from NBC News flatly stated that “though the bill was not the root cause of ‘mass incarceration,’ it was ‘the most high-profile legislation to increase the number of people behind bars,’ according to a Brennan Center analysis in 2016.”
• Fact-checking Sen. Booker’s accusations against Biden, The Atlantic said: “it is true that the bill—which extended the death penalty to 60 new crimes, stiffened sentences, offered states strong financial incentives for building new prisons, and banned a range of assault weapons—helped lead to the wave of mass incarceration that’s resulted in the United States accounting for 25 percent of the world’s prison population.” It added that “a 2016 analysis by the Brennan Center concluded that the 1994 bill contributed both to the subsequent decline in crime and to the doubling of the rate of imprisonment from 1994 to 2009.”
• The New York Times’ fact-check of Biden’s denial rated it “Exaggerated,” quoting a criminologist to say that Biden’s bill “encouraged [states] to mass incarcerate further.”
• Regarding Biden’s denial that his 1994 crime bill “led to more prison sentences, more prison cells, and more aggressive policing — especially hurting Black and brown Americans,” Vox pronounced: “The truth, it turns out, is somewhere in the middle,” noting that “the law imposed tougher prison sentences at the federal level and encouraged states to do the same” and also ensured “an escalation of the War on Drugs.”

One could spend literally all day listing media outlets, criminal justice experts, and politicians from both parties who have insisted that Biden’s 1994 crime bill was a significant factor in mass incarceration generally and of African-Americans specifically, or that the assertion is at least reasonably debatable and grounded in empirical facts — exactly what Instagram has decided is out of bounds to state. It is axiomatically true, or at the very least logically reasonable, that if Biden’s crime bill led to more mass incarceration — and few doubt that it did — then the bill, in the words of the denounced Instagram post, “brought mass incarceration to black Americans.”

On Monday, The New York Post sought comment from Facebook about Instagram’s “False” label. The tech giant, in the words of that paper, said “that Instagram won’t end its censorship unless USA Today changes its assessment.” Yet the Post — long an advocate for tough-on-crime legislation — itself echoed virtually every other media outlet by noting that “whether Biden’s law contributed to mass incarceration is a matter of debate.”

Indeed, from what I can tell, USA Today is the only prominent media outlet of all the ones which fact-checked this issue to conclude that the claim about Biden’s bill is “false.” The overwhelming consensus of fact-checkers and experts is that the 1994 crime bill at the very least contributed to mass incarceration generally and of African-Americans specifically, and that the magnitude of that role is debatable.

But Instagram has closed this debate, at least on its platform. They have announced that the claims about Biden’s 1994 crime bill as expressed by not only Brad Troemel — but also Kamala Harris, Bill Clinton, Cory Booker, Cornel West, the Brennan Center and countless others — has been proven false.

This episode demonstrates two crucial facts. The first is that what is so often passed off as quasi-scientific, opinion-free “fact-checking” are instead extremely tendentious, subjective and highly debatable opinions. That’s how Instagram can cherry-pick the conclusions of USA Today and treat it as if it is Gospel even though numerous other outlets, mainstream politicians in Biden’s own party, and criminal justice experts reached a radically different conclusion. “Fact-checking” in theory has journalistic value, but it is often nothing more than a branding tactic for media outlets to disguise their highly subjective pronouncements as unchallengeable Truth.

The second, more important point is that Silicon Valley giants lack any competency to determine the truth or falsity of political claims even when they act with the best of motives. Who at Instagram decided to rely on the USA Today claims while ignoring all the conflicting conclusions from other outlets and experts, and who decided how to apply that conclusion to the post at issue? And why did USA Today randomly decide to subject an anti-Biden meme about his crime bill from the account of a relatively obscure, anonymous Trump supporter but ignore similar statements coming from Senators Harris and Booker and Bill Clinton, thus handing Instagram an excuse to label any similar views as “False” and without “any basis”? Why are tech companies trying officiate political debates this way?

Recall that the censorship of Twitter and Facebook of The New York Post’s reporting on Hunter Biden’s laptop was based at least in part on the claim that the documents were the by-product of hacking and “Russian disinformation” — claims that have “no basis in fact.” As Matt Taibbi put it last week when warning of the dangers of YouTube’s decision to ban from its platform any questioning of the legitimacy of the 2020 election while still allowing similar questioning of the 2016 election: “There’s no such thing as a technocratic approach to truth. There are official truths, but those are political rather than scientific determinations, and therefore almost always wrong on some level.”

Moreover, the assumption that tech giants are acting with the best of intentions is completely unwarranted. Like every faction, these companies are awash with bias, partisanship, ideological dogma and self-interest. They overwhelmingly donated to the Democratic Party and the Biden campaign. Their executives are residing in virtually every sector of the Biden/Harris transition. Currying favor with the Biden administration — by, say, soft-censoring or discrediting harmful critiques of the President-elect — serves their corporate interests in multiple ways. And their overwhelmingly establishment-liberal employees are increasingly insistent that views they dislike should be censored off their platforms.

This is why it has been so dangerous, so misguided, to acquiesce to a campaign that is being led by corporate media outlets to insist that these tech giants abandon a belief in a free internet and instead censor more aggressively. That a person will now be declared by Facebook’s properties to be a disseminator of disinformation for voicing long-standing and well-documented criticisms of Joe Biden’s crime record is yet another bleak glimpse of a future in which unseen tech overlords police our discourse by unilaterally arbitrating truth and falsity, decree what are permissible and impermissible ideas, and rigidly impose the boundaries of acceptable debate.

Glenn Greenwald is a journalist, constitutional lawyer, and author of four New York Times bestselling books on politics and law. His most recent book, “No Place to Hide,” is about the U.S. surveillance state and his experiences reporting on the Snowden documents around the world. Prior to co-founding The Intercept, Greenwald’s column was featured in The Guardian and Salon. Glenn is one of the three co-founding editors of The Intercept. He left The Intercept in October 2020. https://greenwald.substack.com/ - Suscribe to his newsletter