The Media Today

The government talking to the platforms is a First Amendment minefield. A judge just blew it up.

July 13, 2023

Over the past few years, officials from a number of federal agencies have met regularly with senior executives from the major social platforms to talk about foreign troll armies, the fight against disinformation, and other areas of mutual interest. Last week, such discussions suddenly became illegal as a result of an injunction imposed by Terry Doughty, a federal judge in Louisiana, who ruled that they likely constitute an attempt by the government to coerce the social platforms and as such a violation of the First Amendment. Doughty ordered officials across large parts of the US government to (at least temporarily) stop talking to tech companies about content moderation and removal. He also prohibited officials from “collaborating, coordinating, partnering, switchboarding, and/or jointly working with” certain academics who focus on social media.

In his 155-page, 45,000-word decision, Doughty, who was appointed by Donald Trump in 2017, wrote that the lawsuit that led to his decision—which was filed last year by the attorneys general of Louisiana and Missouri—addressed no lesser stakes than “the most massive attack against free speech in United States’ history [sic].” The attorneys general, Doughty said, had presented evidence of “a massive effort” by the White House to “suppress speech based on its content.” He went on to list the types of speech that the government had allegedly coerced the platforms into blocking, including the story about Hunter Biden’s laptop, the lab-leak theory of the origins of COVID-19, the efficacy of masks and lockdowns, the efficacy of COVID vaccines, the 2020 election, the security of voting by mail, “parody content,” and negative posts about the economy and President Biden.

A Biden administration official said after the ruling that in talking to the platforms, the government has merely been involved in efforts to promote “responsible actions to protect public health, safety, and security,” and that it never coerced anyone. Either way, the ruling quickly had an effect on such talks: last Wednesday, the Washington Post reported that the State Department had canceled a meeting with Meta, the parent company of Facebook and Instagram, in which they had planned to discuss foreign influence campaigns. The next day, the Justice Department asked for Doughty’s injunction to be stayed, arguing that it was “both sweeping in scope and vague in its terms.” The government also characterized the injunction as internally contradictory: it prohibits officials from speaking publicly about social media posts, but at the same time assures the government that its officials are free to exercise their own right to free speech.

This week, however, Doughty refused to stay the injunction, which, in his words, “only prohibits something the Defendants have no legal right to do—contacting 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.” Within hours, the White House took its case instead to a federal appeals court, arguing that there was no evidence that it had made threats against social media companies and that the injunction would unduly restrict public statements. “May federal officials respond to a false story on influential social-media accounts with a public statement refuting the story?” the government’s appeal asked. “No plausible interpretation of the First Amendment would prevent the government from taking such actions, but the injunction could be read to do so.”

The allegation at the heart of the lawsuit—that the government has colluded with social media companies to censor speech—is not new; indeed, it predates the Biden administration. Conservatives first raised concerns even before Trump was elected president; in 2020, Trump signed an executive order that directed the Federal Communications Commission to rethink Section 230, the law that protects internet services from legal liability for the content that users post on their networks. (As the Post noted, that order “came in the same week Twitter applied fact-checking labels to two of Trump’s tweets.”) The attorneys general for Louisiana and Missouri argued in the case before Doughty that in 2017, officials began a “systemic and systematic campaign” to control speech on social media by putting pressure on the social platforms. Several individuals joined the lawsuit, including Jim Hoft, the owner and operator of the conservative site Gateway Pundit, who said that he had been censored online because of his comments about vaccines and mail-in ballots.

In legal parlance, what the government is accused of doing is known as “jawboning,” or trying to exert undue influence through the use of rhetoric. In a post for Lawfare in 2021, Genevieve Lakier, a free speech expert at the University of Chicago, wrote that scholars have long “expressed alarm at the tendency of government officials to use informal means, rather than democratically enacted laws, to pressure the social media companies” to remove speech. Doughty’s ruling nonetheless met with a scathing reaction among many commentators and internet experts. Daphne Keller, the director of platform regulation at Stanford’s Cyber Policy Center, argued on Twitter that the ruling contained a classic logical error: the judge “wants to have his cake and eat it too,” Keller wrote, by blocking the government from contacting social media companies to discuss certain kinds of lawful speech while condoning their doing so in other situations (including those involving national security threats). Nieman Lab’s Joshua Benton wrote on Twitter that “Federal Judge Terry A. Doughty of the Western District of Louisiana is a hack.” 

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As critical as many legal analysts were of the decision, others argued that Doughty and the attorneys general of Louisiana and Missouri have a point. Jeff Kosseff, an associate professor of cyber law at the US Naval Academy and author of a book about Section 230, wrote on Twitter that while he doesn’t agree with the scope of the injunction in the case, “it’s impossible to read the opinion and not be angry about a lot of the government’s actions,” including threats to change or repeal Section 230 unless the platforms behaved in a certain way. “Threatening to repeal or limit a vital technology protection—either because the platforms moderate too much or too little—is a huge problem,” Kosseff wrote.

Mike Masnick, a writer at Techdirt, agreed with Kosseff that some of the government’s behavior crossed a line. For example, Masnick wrote, officials in the White House sending emails with statements like “wondering if we can get moving on the process of having [a tweet] removed ASAP” was definitely inappropriate. However, Masnick also argued that Doughty sees censorship where there is none. The lawsuit before him claims that the government violated the First Amendment by having Twitter block a New York Post story about Hunter Biden’s laptop, an incident that remains “a key Trumpist talking point,” as Masnick put it. Twitter did stop the story from spreading, Masnick said, but there is absolutely no evidence that the government forced or pressured it to do so.

In the past, some conservatives have threatened legislation that would alter or suspend Section 230 as grist in their battle with the platforms, which they have claimed—despite a conspicuous lack of evidence—censor right-wing content. The lawsuit from Louisiana and Missouri is a new front in the same battle. Whether it is ultimately successful remains to be seen, but Masnick noted that the appeals court that is set to hear the Biden administration’s appeal is the same one that, last year, found in favor of a Texas law restricting the platforms’ right to moderate content—a ruling that one legal expert characterized as “the most angrily incoherent First Amendment decision I think I’ve ever read.” This particular battle is still far from over.

Other notable stories:

  • In the UK yesterday, the wife of Huw Edwards, a star news anchor at the BBC, named him as the previously unidentified subject of a recent Sun story alleging that he paid a young person for explicit images starting when that person was seventeen, a possible criminal offense; in a statement issued on Edwards’s behalf, his wife said that he is now receiving “in-patient hospital care” for “serious mental health issues,” and asked for privacy. The Sun’s story was already facing sharp scrutiny after the young person at the center of it dismissed it as “rubbish” (the story was based on their parents’ account); yesterday, the scrutiny intensified after police concluded that Edwards has no criminal case to answer. Edwards has, however, since been the subject of other, noncriminal allegations of inappropriate conduct, including at work, and still faces a BBC probe.
  • Yesterday brought two new stories about the White House, the press, and raised voices. First, the White House press office warned Simon Ateba—a correspondent for Today News Africa with whom administration officials and other White House reporters have repeatedly clashed—that he could lose his press credentials if he continues to disrupt briefings by shouting over others’ questions. Later, Politico’s West Wing Playbook team reported on frustrations among White House reporters at aides who shout over their questions—and, sometimes, responses to them—while trying to move them away from Biden. Per Politico, the frustrations “boiled over” at the NATO summit in Lithuania this week after aides interrupted an answer from Ukrainian president Volodymyr Zelensky.
  • Also this week, current and former staffers at Vice Media—which recently laid off employees and struggled to pay freelancers and to cover basic reporting and office expenses, before finally entering bankruptcy—expressed outrage after public documents linked to the company’s bankruptcy filing confirmed that top executives received lavish salaries and bonuses during the same period. (Semafor had previously reported on the payments.) Meanwhile, New York’s Kevin T. Dugan reports that Vice also has a secret multimillion-dollar agreement with Shane Smith, the company’s controversial founder and executive chairman, that is likely to remain in place as it exits bankruptcy.
  • Fox’s Trump-related legal woes show no sign of letting up: yesterday, Ray Epps, who was present during the insurrection at the Capitol on January 6, sued the network and its (since ousted) host Tucker Carlson for spreading the conspiracy theory that Epps was actually an undercover federal agent who worked to incriminate Trump supporters by goading them into violence. Epps’s suit—which he filed at the same Delaware court that oversaw Fox’s massive recent defamation settlement with Dominion Voting Systems—claims that the network’s coverage duped him into participating in January 6.
  • And Young America’s Foundation, a conservative group, withdrew a trademark suit that it filed against Know Your Enemy, a left-wing podcast that engages (often irreverently) with right-wing ideas, over its use of the words “Young Americans for Freedom”—a joking reference to a group, founded by William F. Buckley, that is now a chapter of the YAF—as the name of one of its subscription tiers. “Say what you will about Bill Buckley,” Sam Adler-Bell, a host on Know Your Enemy, told the Times, “he was not humorless.”

ICYMI: Mathew Ingram on a week of Threads

Mathew Ingram is CJR’s chief digital writer. Previously, he was a senior writer with Fortune magazine. He has written about the intersection between media and technology since the earliest days of the commercial internet. His writing has been published in the Washington Post and the Financial Times as well as by Reuters and Bloomberg.