Editor’s note, July 14, 4:30 pm ET: The US Court of Appeals for the Fifth Circuit has granted the Justice Department’s request to stay Judge Terry Doughty’s order, which prevented many parts of the Biden administration from contacting social media companies about misinformation on their platform. This stay is in effect until the court can hear the DOJ’s appeal of Doughty’s decision. The original story, published on July 5, is below.
Conservatives have complained for years that they’ve been unfairly banned from social media platforms. Now a federal judge is banning parts of the government from communicating with social media platforms.
Judge Terry Doughty, a Trump appointee, issued a preliminary injunction on July 4 as part of a lawsuit over how much involvement the federal government can have with content on social media platforms. It forbids the Biden administration from communicating with those platforms about “protected free speech,” specifically “viewpoint discrimination,” for the purposes of trying to remove it, with the judge dramatically saying such actions may constitute “the most massive attack against free speech in United States’ history.” The Biden administration will likely appeal the injunction.
It’s part of a long-running feud many Republicans have with social media platforms, which they claim disproportionately censor conservative content from what have become public town squares, albeit run by private businesses. Democrats, on the other hand, have complained that social media platforms don’t do enough to remove harmful speech and that they go out of their way to favor the right.
It also comes as social media companies have been reducing their trust and safety teams in layoffs and in the wake of Twitter’s takeover by selective free speech “absolutist” Elon Musk, who has allowed previously banned speech to proliferate on Twitter. Forbidding government agencies to even communicate with platforms about certain kinds of content removes another potential way for the platforms to mitigate harmful speech, though it also removes any potential pressure those platforms may have felt to comply with government requests. But those same companies don’t have a great track record when left to their own devices, which is part of why the government has felt the need to step in this way in the first place.
The case began when Republican attorneys general of Missouri and Louisiana, along with a few private parties who feel they were unfairly banned by the platforms, sued the Biden administration last year, accusing the federal government of colluding with social media companies to censor political or politicized speech. Such allegations have been a years-long complaint from the right, but it picked up steam during the pandemic, when social media platforms became more aggressive in cracking down on health misinformation. The temporarily censored content related to a laptop that belonged to then-presidential candidate Biden’s son Hunter a few weeks before the election has also been a particular source of ire for Republicans.
The lawsuit was also filed a week after the April 2022 announcement of the existence of a Disinformation Governance Board, which was supposed to be a way for the Homeland Security Department to coordinate its efforts to counter disinformation. Following a great deal of conservative outcry, the board was paused in May and officially dissolved last August.
The government has long conferred with social media platforms about content, typically when it comes to threats to security, safety, and democracy. The late 2022 release of the so-called “Twitter Files” showed how extensive those communications can be, which added fuel to right-wing accusations of political censorship. While the government didn’t explicitly order legal speech to be removed — and there were instances where companies didn’t act on their suggestions — even recommendations to remove or flagging problematic content may reasonably create enough to pressure companies to comply. Judge Doughty certainly thought it was.
The Knight First Amendment Institute wasn’t so sure, with executive director Jameel Jaffer saying in an emailed statement that “the government needs to be able to govern, and governing requires speech, including speech directed at private actors … [but] we don’t want the government to be able to escape the First Amendment’s prohibition against censorship simply by relying on informal coercion rather than formal regulation.”
Jaffer concluded that “the court’s order in this case is certainly too broad; it would insulate the platforms not just from coercion but from criticism as well.”
The order applies to the Health and Human Services Department, the National Institute of Allergy and Infectious Diseases, the Office of the Surgeon General, the Centers for Disease Control and Prevention, the Census Bureau, the Justice Department, the Cybersecurity and Infrastructure Security Agency, the Homeland Security Department, the State Department, employees of those offices, various members of the Biden administration, and anyone acting on their behalf.
These parties are also blocked from communicating or working with outside groups that monitor and research speech on social media platforms, including the Election Integrity Partnership, the Virality Project, and the Stanford Internet Observatory, to try to pressure the platforms through them.
White House press secretary Karine Jean-Pierre, who is specifically named in the injunction, said on Wednesday that “we’re going to continue to promote responsible actions to protect public health, safety and security when confronted by challenges like a deadly pandemic and foreign attacks on our elections.”
“We certainly disagree with this decision,” she added.
The order has already had an effect, with the State Department reportedly canceling a meeting with Facebook about the 2024 election on Wednesday and pausing future such meetings “pending further guidance.”
The order does allow the government to communicate with social media platforms about content that represents a security or safety threat, such as posts that deliberately mislead voters, efforts to detect and prevent cyberattacks, criminal activity, and, finally “communicating with social media companies about deleting, removing, suppressing, or reducing posts on social media platforms that are not protected free speech by the Free Speech Clause in the First Amendment to the United States Constitution.”
As that last exception suggests, the wording of the order is broad and vague, making it difficult to discern what would qualify as protected free speech that the government can’t communicate with social media platforms about, and what speech the government is allowed to flag. It’s also an indication that Doughty intends to ultimately rule in the plaintiffs’ favor in the lawsuit, as he says in his ruling that he’s issuing the injunction because he believes they are “likely to succeed.” The injunction is in effect until the final outcome of the case, assuming the court itself doesn’t change it or the Biden administration’s appeal is unsuccessful.
At a time when social media platforms are cutting trust and safety teams, which may mean less monitoring and removal of harmful content, this ruling prohibits the government from doing some of that work for them. That’s bad news for people who are concerned about the damage some of that speech can do, or who don’t think the government should be legally responsible for moderation decisions that were ultimately made by private companies.
But it’s probably good news for people who think the government shouldn’t be in the position of even suggesting to a private company what speech should be allowed on its platforms. While you may agree with the administration’s choices now, administrations change. You might not like what the next one thinks social media platforms should get rid of, and be happy if it’s not allowed to tell them to do it.