On Monday, the U.S. Supreme Court is scheduled to hear oral arguments in Murthy v. Missouri, which raises the question of when government efforts to suppress “misinformation” on social media violate the First Amendment. Neglecting that central question, The New York Times portrays the case as part of a conspiracy by Donald Trump’s supporters to undermine democracy by promoting false claims that mislead voters and threaten the peaceful transfer of power.
“In a world of unlimited online communications” where “anyone can reach huge numbers of people with unverified and false information,” Times reporters Jim Rutenberg and Steven Lee Myers ask, “where is the line between protecting democracy and trampling on the right to free speech?” This is not the first time that Myers has described freedom of speech as a threat to democracy. Last year, he worried that “the First Amendment has become, for better or worse, a barrier to virtually any government efforts to stifle a problem that, in the case of a pandemic, threatens public health and, in the case of the integrity of elections, even democracy itself.” The purported conflict between free speech and democracy is a bizarre and highly misleading way to frame the issues raised by Murthy.
When Biden administration officials persistently pressured social media platforms to curtail speech those officials viewed as dangerous, Rutenberg and Myers say, they were trying to “balance free speech with democratic rights” and “seeking a delicate balance between the First Amendment and social media’s rising power over public opinion.” The implication is that government officials have the authority to weigh freedom of speech against competing values on a case-by-case basis. But that is not the way the First Amendment works.
The First Amendment bars the government from “abridging the freedom of speech,” full stop. As interpreted by the Supreme Court, that command applies to all sorts of speech, no matter how inaccurate, misleading, controversial, offensive, or hateful it might be, unless it fits into one of several narrowly defined exceptions, such as defamation, true threats, fraud, obscenity, and incitement to “imminent lawless action.”
The speech that worries Rutenberg and Myers, such as false claims about COVID-19 vaccines and fraud in the 2020 presidential election, does not fit into any of those exceptions. It is therefore constitutionally protected, precluding any ad hoc attempt to balance the value of allowing it against the risks that might entail.
The Biden administration concedes as much. “No one disputes that the government would have violated the First Amendment if it had used threats of adverse government action to coerce private social-media platforms into moderating content,” it says. “But no such threats occurred here.”
The dispute in Murthy centers on whether federal officials’ interactions with Facebook et al. amounted to “significant encouragement” of censorship and/or crossed the line between persuasion and coercion. While civil liberties groups disagree about the answer to that question, they agree that it needs to be addressed.
The Foundation for Individual Rights and Expression (FIRE) is urging the Supreme Court to uphold the 5th Circuit’s conclusion that “executive branch agencies violated the First Amendment by interfering with private moderation decisions.” Those agencies, FIRE says, “used both carrot and stick tactics to achieve indirectly what the Constitution prohibits [when it is done] directly: governmental control over social media moderation decisions.”
FIRE sees “substantial evidence” that the White House, the FBI, the Centers for Disease Control and Prevention, and the Cybersecurity and Infrastructure Security
Agency “engaged in unlawful ‘significant encouragement’ by placing persistent pressure on platforms to change their moderation policies.” Some federal officials, it says, “became so entangled with social media platform moderation policies that they were able to effectively rewrite the platforms’ policies from the inside.”
FIRE also agrees with the 5th Circuit that some of these communications qualified as coercive. “White House officials issued ‘urgent, uncompromising demands to moderate
content’ and used ‘foreboding, inflammatory, and hyper-critical phraseology’ when social media companies failed to moderate content in the way they requested or as quickly as officials desired,” it says. “Demands to remove specific posts ‘ASAP,’ the use of words and phrases like ‘you are hiding the ball,’ and officials warning they are ‘gravely concerned’ made clear the threats to social media companies were ‘phrased virtually as orders.’ And officials repeatedly ‘refuse[d] to take “no” for an answer and pester[ed]’ the social media companies until they ‘succumb[ed].’ More ominously, they ‘threatened—both expressly and implicitly—to retaliate against inaction.'”
The record “contains copious evidence that the social media platforms understood communications from the White House and FBI agents to be threats and acted accordingly,” FIRE says. “For example, a social media platform expressly agreed to ‘adjust [its] policies’ to reflect the changes sought by officials. And several social media platforms ‘t[ook] down content, including posts and accounts that originated from the United States, in direct compliance with’ a request from the FBI that they delete ‘misinformation’ on the eve of the 2022 congressional election. When the White House and FBI ‘requested’ the platforms to jump, they ultimately, if reluctantly, asked how high.”
FIRE adds that the White House and the FBI “threatened ‘adverse consequences’ to social media platforms if they failed to comply.” When the platforms’ content moderation “was too slow for the White House’s liking, officials publicly accused them of ‘killing people'” and “privately threatened them with antitrust enforcement, repeal of Section 230 immunities, and other ‘fundamental reforms’ to make sure the platforms were ‘held accountable.'”
In addition to those “express threats,” FIRE says, “both White House and FBI officials’ statements contained implied threatened consequences because those officials are backed by the ‘awesome power’ wielded by the federal executive branch. For example, White House officials frequently alluded to the President’s potential involvement should social media platforms not moderate content to their satisfaction.” And “as a federal enforcement agency that conducts various internet investigations,” the FBI “has tools at its disposal to force a platform to take down content.”
The Electronic Frontier Foundation (EFF), which filed a Murthy brief in support of neither side, sees the situation somewhat differently. It worries that too broad an injunction against government interaction with social media platforms could preclude useful and constitutionally permissible contacts that inform Facebook et al. of misinformation threats they might want to counter by applying their own rules. But even EFF thinks some of these contacts can plausibly be viewed as coercive. EFF mentions Deputy Assistant to the President Rob Flaherty’s “communications to Facebook regarding specific Tucker Carlson and Tomi Lahren posts expressing COVID-19 vaccine hesitancy,” which it describes as “at least a close case that should likely be resolved against the government.”
Rutenberg and Myers’ article, by contrast, barely acknowledges that Murthy raises any legitimate First Amendment concerns at all. Instead they worry that the Supreme Court’s decision “could curtail the government’s latitude in monitoring content online.” To be clear: Rutenberg and Myers think that would be bad.
As they see it, Trump’s stolen-election fantasy poses a clear and present danger to democracy, as evidenced by the Capitol riot that interrupted congressional ratification of Joe Biden’s victory. They note that Trump, after being banished from social media in the wake of the riot, is now back on those platforms, free to promote his phony grievance as he tries to unseat Biden in this year’s election. Worse, “Facebook and YouTube announced that they would reverse their restrictions on content claiming that the 2020 election was stolen.” As a result, “the torrent of disinformation that the previous efforts had slowed, though not stopped, has resumed with even greater force.”
Trump’s banishment, of course, was the result of private decisions by private companies, as was his restoration. The decisions at issue in Murthy, by contrast, were made in the context of unrelenting government pressure that the Biden administration argues was constitutionally permissible. Rutenberg and Myers clearly agree.
When social media platforms crack down on controversial speech at the government’s behest, users are apt to think twice before expressing opinions that might offend the authorities. But Rutenberg and Myers are not worried about such self-censorship. Instead they worry that constitutional objections to the government’s social media meddling have had a “chilling effect” on efforts to curtail online speech.
To emphasize the need for such intervention, Rutenberg and Myers quote Jen Easterly, director of the Cybersecurity and Infrastructure Security Agency. “We’re in the business of critical infrastructure, and the most critical infrastructure is our cognitive infrastructure,” Easterly said at a 2021 conference, “so building that resilience to misinformation and disinformation, I think, is incredibly important.” She promised to “work with our partners in the private sector and throughout the rest of the government and at the [Department of Homeland Security] to continue to ensure that the American people have the facts that they need to help protect our critical infrastructure.”
Ensuring that Americans “have the facts” is one thing. It involves responding to “misinformation and disinformation” by citing countervailing evidence. But when fighting “misinformation and disinformation” entails government-encouraged censorship of controversial speech, it raises obvious First Amendment concerns. The very idea of a government agency charged with guarding “our cognitive infrastructure” should set off alarm bells for anyone who values freedom of thought and freedom of speech.
The fact that Rutenberg and Myers do not hear those bells suggests they assume that Orwellian mission can only affect speech they do not like, because the government will inerrantly distinguish between “misinformation” and worthwhile content. That is a pretty shortsided view for people whose work depends on a constitutional provision that bars the government from enforcing such judgments.
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