Ruling Puts Social Media at Crossroads of Disinformation and Free Speech

By By Michael D. Shear and David McCabe

On July 5, 2023

The case, which could alter how the government battles disinformation, is a flash point in a broader effort by conservatives to document what they contend is a liberal conspiracy to silence their views.

Two months after President Biden took office, his top digital adviser emailed officials at Facebook urging them to do more to limit the spread of “vaccine hesitancy” 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” posts. 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 by a federal judge in Louisiana, who on Tuesday imposed temporary but far-reaching limits on how members of Mr. Biden’s administration can engage 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 contend is a liberal conspiracy by Democrats and tech company executives to silence their views. It taps into fury on the right about how social media companies have treated stories about the origins of Covid, the 2020 election and Hunter Biden, the president’s son.

The final outcome could shape the future of First Amendment law in a rapidly changing media environment and alter how far the government can go in trying to prevent the spread of potentially dangerous information, particularly in an election or during emergencies like a pandemic.

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

The case was brought by two Republican attorneys general and five individuals who campaigned against masks, argued that vaccines did not work, opposed lockdowns and pushed drugs that medical experts denounced as ineffective, like ivermectin and hydroxychloroquine.

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

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

The judge’s preliminary injunction is already having an impact. A previously scheduled meeting on threat identification 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 reported earlier by The Washington Post.

Administration officials said the Justice Department was examining the judge’s lengthy order to determine what activities must be halted when it comes to communicating their concerns about the spread of information.

“The court’s order, which prevents the government from even speaking with tech companies about their content moderation policies, deals a huge blow to vital government efforts to harden U.S. democracy against threats of misinformation,” Leah Litman and Laurence H. Tribe wrote in the Just Security blog on Wednesday.

“Each step in the reasoning of the decision manages to be more outlandish than the last,” the pair wrote.

White House officials pledged to abide by the judge’s injunction, which will remain in place while the case moves forward unless a higher court reverses the order.

“But we’re not going to apologize for promoting responsible actions to protect public health, safety and security when confronted by challenges like a deadly pandemic or foreign attacks on our elections,” said Sharon Yang, a White House spokeswoman. “We’re also not going to apologize for believing that social media platforms have a responsibility — a critical responsibility — to take account of the effects their platforms have on the American people.”

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

It allows the government to continue to notify the platforms about certain content, including posts concerning 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 type of speech the judge’s order says the administration cannot discuss with the companies.

And the line between the two could be blurry, 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 huge swaths of the executive branch from communicating with the platforms about speech,” she said.

“Are government officials supposed to figure out for themselves what’s the serious enough threat that they can communicate about it to the platforms, or not serious and then they cannot?” she said. “How are they going to draw this line?”

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

In one instance, the judge wrote that aides to Jill Biden, the first lady, repeatedly cajoled Twitter executives to remove a video that was edited to make her seem profane toward a group of children. Twitter took the video down.

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 45 minutes after the request, Twitter suspended the account.

After Vivek Murthy, the surgeon general, urged social media companies to “take action against misinformation superspreaders” in July 2021, the companies took down information posted by 17 accounts linked to the “Disinformation Dozen,” a group of people who frequently distributed false anti-vaccination claims.

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

“The 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 F.B.I.’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.

For several pages, Judge Doughty refers to the F.B.I.’s investigation into Hunter Biden’s laptop, suggesting a link between the government’s contacts with social media companies and the decision by some of the platforms to remove information about the story.

“The F.B.I. additionally likely misled social media companies into believing the Hunter Biden laptop story was Russian disinformation, which resulted in suppression of the story a few weeks prior to the 2020 presidential election,” the judge wrote in his order.

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

But they are charges that the president and his aides reject as wrong and misleading.

Administration officials argued in the case that they did not unlawfully pressure the social media companies. Instead, they said the government had a responsibility to combat the spread of incorrect information through discussions with the companies.

And they say — backed up by evidence from several of the social media companies — that the platforms have made independent decisions about what information to promote or delete, without any government control.

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

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

The judge said that pressure went beyond aggressively encouraging the platforms to take down posts — which, he said, would itself violate the First Amendment — and amounted to coercion of some of the biggest companies in America 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 would have to figure out how widely Judge Doughty’s prohibitions should be applied.

“The bigger issue for clarity is who does this actually apply 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 C.D.C. to not be able to voice his views on his own time?”

This piece was republished from the The New York Times.