Opinion: Order denouncing possibly the ‘most massive attack against free speech’ is full of hyperbole and short on specifics
Opinion by Roy S. Gutterman, CNN, 7/10/23
Government censorship is anathema to our democratic principles, regardless of party affiliation or belief.
The attorneys general of two conservative-run states are accusing the Biden administration of just that in a lawsuit with potentially major repercussions for Americans’ free speech rights. And last week, a federal judge handed them a significant, if temporary, win.
US District Judge Terry Doughty, in a preliminary injunction that was as sweeping as it was vexing, barred the Biden administration and other government officials on Tuesday from communicating with social media and tech companies about taking down certain “content containing protected free speech.”
The lawsuit, filed by attorneys general from Missouri and Louisiana, accused the administration of attempting to silence a raft of conservative speakers by leaning on social media platforms such as Meta, Twitter, YouTube/Google, TikTok and others to take down content on hot-button issues.
Most of the social media posts had to do with combating Covid-19, including posts challenging the efficacy of vaccines and raising questions about mask mandates.
A White House official defended the administration last week, saying that “social media platforms have a critical responsibility to take account of the effects their platforms are having on the American people, but make independent choices about the information they present.”
Last week’s court order noted that the government can still communicate with the companies as part of efforts to curb illegal activity and address national security threats.
The order, representing the plaintiffs’ most significant victory to date in the year-old lawsuit, is intended to prevent the government from “censoring” speakers with whom it disagrees. Invoking the “c” word, however, requires more of a showing than we have seen thus far.
Although the censorship issue understandably grabs our attention, the opinion failed to address several other constitutional and legal questions regarding issues of standing — whether the plaintiffs or the states should be eligible to litigate — and whether anyone suffered tangible harm.
Meanwhile, Doughty’s 155-page memorandum in support of the injunction — lengthy and laden with hyperbole — framed the issue as “arguably … the most massive attack against free speech in United States’ history.” But it fell short of some key specifics regarding whether the government’s actions as alleged would have violated the plaintiffs’ free speech rights.
Since the case was filed in May 2022, the plaintiffs asserted a broad definition of what constitutes censorship. Strictly speaking, censorship requires government action to remove content from the public or otherwise silence a speaker.
History is replete with examples of unconstitutional acts of government censorship, including book and film bans, and prosecutions based on political or dissident speech. Over the years, courts have intervened in some cases and turned a blind eye to censorship in others.
In Missouri v. Biden, the plaintiffs argued that government officials’ actions — which included challenging false and questionable content directly or meeting with social media companies to encourage them to take down such content — constituted both outright censorship or unreasonable government coercion. They argued that the government strong-armed the private tech companies to take down content or deplatform speakers.
Despite voluminous court filings and last week’s lengthy decision, it is far from clear that the administration’s conduct amounted to censorship.
The preliminary evidence filed in the case details some meetings and critical exchanges, as well as criticism levied by government officials, that appeared reasonable in questioning misstatements involving public health, Covid-19 policies and other issues.
The Republican state attorneys general argue that the Biden administration ran afoul of the First Amendment by threatening legal action against the tech companies amid disputes over speech on the platforms.
But criticism by government officials and gentle requests to take down content — absent concrete administrative or prosecutorial action — goes far short of censorship.
And it’s worth noting for argument’s sake that even if the communications between government officials were acts of censorship, the Supreme Court has never held that First Amendment prohibitions on government censorship are absolute.
In two of the Supreme Court’s most vociferous declarations against censorship, Near v. Minnesota (1931) and New York Times v. United States (1971), the court held that prior restraints or censorship, while presumed to be unconstitutional, can be instituted in narrow and rare situations as long as the government has a proven compelling interest to justify its actions.
Those narrow settings tend to involve national security, contemporaneous military movements or specific threats to public safety. Asking that misinformation about public health be taken down, especially during a national emergency, could be one of those narrow scenarios.
Doughty’s injunction is just the latest in the battle over online speech. In the past two months, the Supreme Court issued two significant decisions on social media, refusing to hold social media companies liable for content posted on their platform by users that aided terrorism and other violence perpetrated by platform users.
In doing so, the court reaffirmed the relatively hands-off legal and regulatory framework that has facilitated the commercialization and mainstreaming of the internet for nearly three decades.
The controversy surrounding the court injunction comes against the backdrop of bipartisan displeasure with Section 230 of the Communications Decency Act, a measure that immunizes digital platforms from liability for users’ postings.
The complaint cites occasions when the Biden administration threatened to take antitrust action against the companies over misinformation about Covid-19, vaccines and elections or undo Section 230, a legal shield that protects tech giants from lawsuits. This also falls short of actual censorship.
(During the 2020 presidential campaign, both Biden and then-President Donald Trump called for repealing Section 230, although for different reasons.)
Conservatives are dissatisfied with Section 230 because they feel it empowers social media platforms to discriminate against speakers based on their views, while liberals complain that it facilitates hate speech, speech inciting violence and other offensive content.
But the very existence of Section 230 underscores why this case against the Biden administration was lodged in the first place.
Without the government playing a heavy regulatory role, as it does with other forms of pervasive media such as broadcast television or radio, internet-based entities are free to make their own decisions about what they will or won’t publish.
The entire discussion underscores how important speech, debate and pushback against pronouncements we disagree with are to our democracy — and why it’s essential that this keystone of democracy is reinforced and protected by the First Amendment.
However this case plays out, it is sure to have far-reaching implications for how the government, and society at large, deals with content — particularly misinformation or disinformation.
The Department of Justice filed a notice of appeal to the 5th US Circuit Court of Appeals, so last week’s ruling won’t be the last word on this case — not in court, and most likely not in the court of public opinion either.