A federal judge ruled Tuesday that the Biden administration must cease contacting social media companies about a broad range of online content, including the administration's efforts to flag misinformation. The judge said some of the administration’s past communications with social media companies violated the First Amendment, and said that during the pandemic the government "assumed a role similar to an Orwellian Ministry of Truth."
As anyone who has read through independent reporting on Twitter's internal decision-making about content moderation, also known as the Twitter Files, should know, there are some complicated questions surrounding the kinds of intimate contact the government has had with the company. (That contact was not specific to Biden, it happened under former President Donald Trump as well.) This case focused on whether any of the government's communications constituted an informal pressure tactic to coerce a company to take down content, also called jawboning, a violation of the Constitution.
But multiple First Amendment scholars and free speech advocates say the sweeping nature of the ruling, the result of a lawsuit brought by the Republican attorneys general of Louisiana and Missouri, is too broad and hobbled by a partisan agenda. It’s predicated on rickety reasoning. It conflates virtually any kind of discussion with censorship. And ultimately it could end up protecting social media companies from legitimate criticism.
This ruling, if it were to become permanent, would represent a big and striking restriction on the government’s ability to interact with social media companies.
The injunction granted by U.S. District Court Judge Terry Doughty, who was appointed by Trump, says that parts of the government cannot communicate with social media companies for “the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.” He also said there is a carve-out that permits the government to warn social media platforms about criminal activity, national security threats and foreign election interference. (More on the controversial nature of that carve-out later.) But overall this ruling, if it were to become permanent, would represent a big and striking restriction on the government’s ability to interact with social media companies. The Biden administration is currently appealing the ruling.
If you haven’t been super plugged into the Twitter Files conversation, then it might sound strange to learn that the government was interacting with social media companies about things that went beyond matters of criminal activity and national security. But there are records of the Trump and Biden administrations making requests for content removal from Twitter. In the case of the Biden administration, many of those instances involved administration officials sending emails and texts to Twitter staffers to flag instances of misinformation and disinformation about Covid and the elections that violated Twitter’s own policies. On one occasion in 2019 Trump asked for a derogatory tweet from model and television personality Chrissy Teigen to be taken down, according to a former Twitter employee.
The plaintiffs, who include Covid vaccine skeptics, focus on Biden and argue that his contact with Twitter represents an attempt by the government to suppress conservative speech. But winning that argument requires evidence that the government was not just asking for content to be removed but applying pressure toward that end. And while it’s inherently tricky to determine where asking ends and pressuring begins when you're talking about an entity as powerful as the government, experts say the plaintiffs don’t back up their claim that the government exerted pressure.
It’s not inherently a violation of the First Amendment for the government to direct critical speech at private actors. “The government needs to be able to govern, and governing requires speech, including speech directed at private actors,” Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University, said in a statement.
“It surely can’t be a violation of the First Amendment for the government to call out a newspaper for publishing a story the government believes to be false,” he wrote. Jaffer acknowledged in his statement that the issue is complex, and he appears open to the possibility that the government has jawboned companies, Twitter included. But he said he found the ruling “too broad” and argued it would “insulate the platforms not just from coercion but from criticism as well.”
In their scathing critique of Doughty’s ruling, Leah Litman of the University of Michigan and Lawrence Tribe of Harvard University argue that the lawsuit fails to acknowledge the established precedent of governments asking private parties about their content moderation policies or discussing whether foreign governments are interfering with content in order to alter elections. “The First Amendment certainly doesn’t prevent them from merely asking,” they write. Moreover, they point out that some of the examples in the lawsuit suggest the government is in the wrong even when it doesn’t make a request. The plaintiffs argue that Dr. Anthony Fauci “suppressed speech on hydroxychloroquine” merely because he said “hydroxychloroquine is not effective” on “Good Morning America.”
“A government official appearing on a television show and stating that certain speech is disinformation does not come even remotely close to the government coercing social media companies into removing that speech,” Litman and Tribe write.
Genevieve Laker, a legal scholar at the University of Chicago, argues that while the question of coordination between the government and legal scholarship was “relatively new” and didn't involve difficult questions, this ruling didn’t grapple with those difficult questions. Instead it “fails to distinguish” between public criticism, sharing information about rules violators, and private messages pressuring a company to take down specific content. “These diff[erent] acts raise very diff[erent] constitutional Qs. But you would never know it if you read Tuesday’s opinion,” she tweeted.
Laker added, “The result is an incredibly broad reading that is a major leap into the unknown. This just isn’t how courts have analyzed jawboning in the past. And it’s not how other circuits are analyzing it now.”
There’s also the issue that the ruling seems to lack a coherent theory of appropriate government speech. Stanford University’s Daphne Keller argued that the judge’s carve-out for what the government is still allowed to talk to social media companies about is extremely broad and includes protected free speech. Doughty’s exceptions allow the government to flag “threats that threaten the public safety or security of the United States’’ and “other threats.” That language is extremely vague and could plausibly include First Amendment-protected speech (you can imagine different political parties imagining very different things as constituting a threat to the “public safety” of the country). Keller argues that the judge is effectively selecting between which First Amendment-protected speech he values and which he doesn’t value as much.
This is all to say that even among analysts and advocates who are vigilant about the government overstepping its bounds, this specific ruling on this specific lawsuit is wildly controversial for its reasoning and sweep. If the judge wants us to think of this as more than a merely partisan ruling on behalf of Republican state officials, then he needs to address the thorny, nuanced questions about what the government can say to social media companies by starting with a fair assessment of the facts, and reasonably distinguishing between a conversation and coercion.
