Getty Images | Christopher Furlong
A federal judge yesterday ordered the Biden administration to halt a wide range of communications with social media companies, siding with Missouri and Louisiana in a lawsuit alleging Biden and his administration violated the First Amendment by collaborating with social networks “to suppress unfavorable speakers, points of view”. , and content.”
The Biden administration argued that it was communicating with technology companies to counter misinformation about elections, COVID-19 and vaccines, and that it was not putting illegal pressure on the companies. The communications to social media companies were not significant enough “to convert private behavior into government behavior,” Justice Department lawyers argued in the case.
But Judge Terry Doughty, a Trump nominee in the U.S. District Court for the Western District of Louisiana, granted plaintiffs’ request for a preliminary injunction imposing restrictions on the Department of Health and Human Services, the National Institute of Allergy and Infectious Diseases, the Centers for Disease Control and Prevention, the Federal Bureau of Investigation, the Department of Justice, the US Census Bureau, the State Department, the Homeland Security Department, the Cybersecurity and Infrastructure Security Agency, and many specific officials at those agencies. The order also affects White House officials.
The agencies and officers are prohibited from communicating “with social media companies for the purpose of inciting, encouraging, coercing or in any way inciting the removal, removal, suppression or reduction of content that contains protected freedom of expression posted on social media platforms.” Doughty ruled. The injunction prohibits “specifically marking any content or posts on social media platforms and/or forwarding them to social media companies that in any way solicit, encourage, coerce, or incite removal, removal, suppression or diminution of content containing protected freedom of expression.” .”
Government agencies and officials should further not urge, encourage, or pressure social media companies “to change their guidelines for removing, removing, suppressing, or reducing content with protected freedom of expression.” The ruling also said the government should not collaborate with third-party groups, including the Election Integrity Partnership, the Virality Project and the Stanford Internet Observatory, to put pressure on social media companies.
Exceptions include disinformation about voting
Doughty has made several exceptions that allow the government to communicate with social media companies about criminal activity and other expressions that the First Amendment does not protect. The Biden administration may continue to inform social networks of reports of criminal activity or criminal conspiracies, threats to national security, extortion, criminal attempts to suppress votes, illegal campaign contributions, cyber attacks on election infrastructure, foreign attempts to influence elections, threats to the public safety and security, and messages designed to mislead voters about voting requirements and procedures.
The U.S. may also “make permitted government speeches to promote government policies or positions on matters of public interest,” interact with social networks “in an effort to detect, prevent, or mitigate malicious cyber activity,” and “communicate.”[e] with social media companies about removing, removing, suppressing or minimizing posts on social media platforms that are not protected by the freedom of speech in the First Amendment to the United States Constitution.”
In addition to the Missouri and Louisiana attorneys general, prosecutors include Professors Jayanta Bhattacharya and Martin Kulldorff, who co-authored the October 2020 “Great Barrington Declaration” that opposed COVID lockdowns and pushed for herd immunity to be achieved. She and other claimants claim they were censored by social networks.
The ruling was criticized by Jameel Jaffer, an adjunct professor of law and journalism who is the executive director of the Knight First Amendment Institute at Columbia University. “The government cannot be violating the First Amendment simply by talking to the platforms about their content moderation decisions and policies,” Jaffer told The New York Times, calling it “a pretty radical proposal that not supported by case law.”
While the government must be careful to avoid coercion in its efforts to combat false information, Jaffer said that “unfortunately, Judge Doughty’s order does not reflect a serious effort to reconcile the competing principles.”
Evelyn Douek, an assistant professor at Stanford Law School, told The Washington Post that the “order is strikingly broad and clearly intended to cool down any kind of contact between government actors and social media platforms.”
Judge notes “unrelenting pressure” on social networks
Doughty previously blocked federal vaccine and mask mandates in the Head Start program. In the social media case, Doughty made it clear he expects plaintiffs to win in a 155-page memorandum explaining his decision yesterday:
The plaintiffs will likely succeed in their contention that the United States government, through the White House and numerous federal agencies, has pressured and encouraged social media companies to suppress free speech. Defendants used meetings and communications with social media companies to pressure those companies to tear down, reduce, and suppress the freedom of speech of American citizens.
They flagged messages and provided information about the type of messages they wanted suppressed. They also issued guidelines to the social media companies to provide them with information about the action the company had taken regarding the flagged post. This seemingly unrelenting pressure by defendants aimed to suppress millions of protected messages about free speech by American citizens.
The federal defendants “maintain that they only made requests to the social media companies and that the decision to change or suppress content was the independent decision of each social media company,” Doughty wrote. “However, if a state has so interfered with the conduct of the private party, it cannot claim that the conduct resulted from a private choice, even if the private party acted independently.”
He found that defendants “considerably encouraged” the social media companies, and in some cases coerced them, “to such an extent that the decision had to be regarded as the government’s decisions.”
