Ruling places social media at the crossroads of disinformation and free speech

Two months after President Biden took office, his top digital adviser emailed officials on Facebook urging them to do more to limit the spread of “vaccine doubt” on the social media platform.

At the Centers for Disease Control and Prevention, officials held “weekly sync” meetings with Facebook, once emailing the company 16 “misinformation” messages. And in the summer of 2021, the surgeon general’s top aide repeatedly urged Google, Facebook and Twitter to do more to combat disinformation.

The examples are among dozens of interactions described in a 155-page ruling from a Louisiana federal judge on Tuesday that placed temporary but far-reaching restrictions on how members of Mr. Biden’s administration can interact with social media companies. The government appealed the ruling on Wednesday.

The case is a flashpoint in the broader effort by conservatives to document what they believe is a liberal conspiracy by Democrats and tech company executives to silence their views. It plays on anger on the right about how social media companies have handled stories about the origins of Covid, the 2020 election and Hunter Biden, the president’s son.

The final result could determine the future of the First Amendment law in a rapidly changing media environment and change how far the government can go to prevent the spread of potentially dangerous information, particularly at elections or during emergencies such as a pandemic .

The actions of the government at the center of the case were largely intended as public health measures. But Tuesday’s order instead looked at the issue through the filter of partisan culture wars — asking whether the administration had violated the First Amendment by unlawfully threatening the social media companies to censor speech that would distaste and potentially harm Mr Biden’s government. found for the public.

The case was brought by two Republican attorneys general and five individuals who campaigned against masks, claimed vaccines didn’t work, opposed lockdowns and pushed drugs that medical experts denounced as ineffective, such as ivermectin and hydroxychloroquine.

And it is overseen by Judge Terry A. Doughty, who was appointed by President Donald J. Trump and has previously expressed little skepticism about debunked claims by vaccine skeptics. In an earlier case, Judge Doughty accepted the claim that “Covid-19 vaccines do not prevent transmission of the disease.”

Judge Doughty was confirmed by the Senate by a vote of 98 to 0 in 2018 in the U.S. District Court for the Western District of Louisiana, which is seen in recent years as beneficial to right-wing lawsuits. He ruled against the Biden administration’s vaccine mandate for Head Start preschool programs last year, say that the “freedom interests of individuals authorized to take the Covid-19 vaccine outweigh the interests generated by the mandatory administration of vaccines.”

The preliminary injunction of the court is already taking effect. A previously scheduled threat identification meeting on Thursday between State Department officials and social media executives was abruptly canceled by officials, according to two people familiar with the decision, which was previously reported by The Washington Post.

Administrative officials said the Justice Department was examining the judge’s lengthy order to determine what activities to halt when it comes to communicating their concerns about information dissemination.

“The court order prohibiting the government from even talking to tech companies about their content moderation policies is a massive blow to vital government efforts to harden American democracy against threats of misinformation,” Leah Litman And Laurence H. Stam wrote Wednesday in the Just Security blog.

“Each step in the decision’s reasoning manages to be weirder than the last,” the pair wrote.

White House officials pledged to abide by the judge’s order, which will remain in effect as long as the case continues unless a higher court overturns the order.

“But we’re not going to apologize for promoting responsible actions to protect public health, safety and security when we face challenges like a deadly pandemic or foreign attacks on our elections,” said Sharon Yang, a White House spokeswoman. . “Nor are we going to apologize for believing that social media platforms have a responsibility — a critical responsibility — to consider the effects their platforms are having on the American people.”

The sheer scope of the ruling could make it difficult for the administration to comply, several legal experts said.

It allows the government to continue to inform the platforms about certain content, including messages about criminal activity, threats to national security and foreign election interference. But a subset of that content may also be protected by the First Amendment, the kind of speech the administration can’t discuss with the companies under the judge’s order.

And the line between the two could be blurred, said Genevieve Lakier, a professor at the University of Chicago Law School, who called the judge’s rulings “pretty significant departures from precedent.”

“The result is this incredibly broad injunction that seems to prevent large parts of the executive branch from communicating with the platforms about speech,” she said.

“Should government officials find out for themselves what the threat is serious enough to communicate about it to the platforms, or not serious and then not?” she said. “How are they going to draw this line?”

In his order, Judge Doughty described what he called a campaign by White House and government officials to pressure social media companies.

In one case, the judge wrote that aides to first lady Jill Biden repeatedly persuaded Twitter executives to remove a video edited to make her appear profane to a group of children. Twitter removed the video.

In another case, Judge Doughty wrote that a top Biden official requested that Twitter remove a parody account linked to Finnegan Biden, Hunter Biden’s daughter and President Biden’s granddaughter. He wrote that Twitter suspended the account 45 minutes after the request.

After Vivek Murthy, the Surgeon General, urged social media companies to “take action against super-spreaders of misinformation” in July 2021, the companies removed information posted by 17 accounts linked to the “Disinformation Dozen”, a group of people who regularly spread false anti-vaccine claims.

Judge Doughty said the social media companies’ decision came after multiple emails, phone calls and weeks of meetings between Mr Murthy’s top associates and senior executives at several social media companies.

“Public and private pressure from the White House apparently had its intended effect,” the judge wrote. “All 12 members of the ‘Disinformation Dozen’ were censored and pages, groups and accounts linked to the Disinformation Dozen were removed.”

He also described regular meetings between the companies and the FBI’s San Francisco field office, where he wrote that as many as eight agents were responsible for forwarding concerns about social media posts to seven tech companies several times a month.

On several pages, Judge Doughty references the FBI’s investigation into Hunter Biden’s laptop, suggesting a connection between the government’s dealings with social media companies and some platforms’ decision to remove information about the story.

“The FBI also likely misled social media companies into believing the Hunter Biden laptop story was Russian disinformation, resulting in the suppression of the story a few weeks prior to the 2020 presidential election,” the judge wrote in his order.

Conservatives have already begun to use that kind of language to fuel their broader political accusations against Mr Biden and the Democrats. Representative Jim Jordan of Ohio, the Republican chairman of the Judiciary Committee, tweeted, “Great loss to the industrial censorship complex.”

But they are allegations that the president and his aides dismiss as false and misleading.

Administration officials argued in the case that they were not exerting undue pressure on the social media companies. Instead, they said the government had a responsibility to prevent the spread of misinformation through discussions with the companies.

And they say — supported by evidence from several social media companies — that the platforms have made independent decisions about what information to promote or remove, without any government scrutiny.

Internal files released by Twitter last year document instances where the company rejected government requests.

But in Tuesday’s ruling, Judge Doughty found that government efforts amounted to coercion from the platforms that violated the First Amendment by essentially replacing private companies on behalf of the government.

The judge said the pressure went beyond aggressively encouraging the platforms to delete posts — which he himself said would violate the First Amendment — and amounted to coercion of some of America’s largest companies by the’ most powerful office in the world’. ”

Jeff Kosseff, an associate professor of cybersecurity law at the United States Naval Academy, said the government should figure out how broadly to apply Judge Doughty’s bans.

“The bigger issue for clarity is who this actually applies to — and does it apply to them in their personal capacity, their official capacity, or both,” he said. “Does he want an office assistant at the GGD not to be able to give his opinion in his own time?”