A recent U.S. District Court ruling that seemed to validate conservative concerns about Democrats colluding with Big Tech has been put on hold, raising questions about the underlying lawsuit’s legal viability.
A federal appeals court on July 14 paused a lower court judge’s order that had blocked much of the Biden administration from talking to social media sites about content.
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The initial ruling, by Judge Terry A. Doughty of U.S. District Court for the Western District of Louisiana, found plaintiffs were likely to be able to prove that the Biden administration engaged in an illegal effort to silence speech on the social media platforms. The subsequent ruling from the 5th U.S. Circuit Court of Appeals halted it from going into effect.
The lower court’s prohibition was an interim step in the legal efforts of the attorneys general in Louisiana and Missouri against the Biden administration for what the Republican attorneys general called First Amendment violations. Expedited oral arguments in the case are the next legal step.
In the original complaint, the state attorneys general allege “senior government officials in the Executive Branch have moved into a phase of open collusion with social-media companies to suppress disfavored speakers, viewpoints, and content on social-media platforms under the Orwellian guise of halting so-called ‘disinformation,’ ‘misinformation,’ and ‘malinformation.’”
Those claims refer mostly to content about election information, COVID-19 vaccines, and related public health responses that Biden administration officials urged social media companies to remove or demote. The attorneys general claim that those requests in the context of efforts to reform or eliminate the social media app’s liability shield, known as Section 230, constitute an unconstitutional threat.
While the first ruling was considered a win for many on the political Right who think too much conservative speech has been suppressed online, many on the Left were troubled by the ban on communication between government officials and social media platforms. They fear too much “misinformation” left circulating online may lead to real-world violence or health degradation.
The original judgment prevented the Department of Health and Human Services, the Centers for Disease Control and Prevention, the Department of Justice, the State Department, and the FBI, among others, and some officials mentioned by name, including Surgeon General Vivek Murthy, from carrying out certain kinds of communications with social media companies.
Specifically, those entities were barred from contacting firms with the aim of removing or demoting third-party content that is “protected free speech posted on social-media platforms.” The preliminary injunction also banned those named from collaborating with outside groups for the same purpose, requesting information about a platform’s content moderation activities, and notifying those companies about content to be on the lookout for generally.
Federal District Judge Doughty in the first ruling also enumerated exceptions to those restrictions. Categories of acceptable communications included criminal activity, national security threats, election inference, and public safety.
But determining if a piece of posted content falls under those exceptions may prove difficult in practice.
Daphne Keller, platform regulation director for the Standard Cyber Policy Center, tweeted that the judge in the initial decision “thinks he can protect ‘free expression’ while leaving the govt free to restrict content he personally considers bad or dangerous.”
The categorizing of what speech qualifies for the exceptions could be tricky for government officials and will almost certainly vary from one person’s opinion to the next. That gray legal area may make these rules challenging to adhere to in practice.
For example, when the FBI contacted Meta (then Facebook) about dangers of Russian election interference, CEO Mark Zuckerberg later cited that warning as influencing the company’s decision to restrict the news story about Hunter Biden’s laptop. Whatever the merits of the FBI claim, that justification could presumably fall under the exception for election interference. Yet that incident is one of the most cited examples by those championing government restrictions on influencing social media companies.
"The lower court's ruling in Missouri underscores that lawmakers and bureaucrats need a refresher on the First Amendment and its commands," Chris Marchese, director of litigation for the industry group NetChoice, told the Washington Examiner by email.
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NetChoice is leading the litigation against laws in Texas and Florida that would treat social media platforms as public forums subject to First Amendment restrictions on content moderation. That approach represents a separate, and somewhat contradictory, effort on the political Right than the district court lawsuit. That challenge is expected to reach the Supreme Court next term.
Marchese continued, “Whether it’s through legislation like Texas’s and Florida’s enjoined social media laws, or through backdoor pressure campaigns like those uncovered in Missouri v. Biden, the government has no business telling private businesses or their users how to exercise their First Amendment rights.”