The 5th U.S. Circuit Court of Appeals has stayed District Judge’s Terry A. Doughty’s July 4 injunction in the free speech case Missouri v. Biden. This injunction forbade vast swaths of the Biden administration from urging social media platforms to remove or deprioritize users’ lawful speech. Doughty’s reasoning rested on his conclusion that federal officials, in violation of the First Amendment, systematically “coerced” or “significantly encouraged” platforms to censor by proxy disfavored viewpoints.
Observers should have foreseen the 5th Circuit’s stay. Doughty’s injunction seems overbroad and contradictory. It bars Biden administration officials from inducing in any way social media platforms to moderate speech (even in their capacity as private citizens). However, the injunction then provides an equally sweeping list of exceptions — e.g., national security, election security, and “public safety” — that would seem to permit most of the government–platform coordination Doughty decries as censorship. The judge did little to explain interplay of the injunction’s sweeping prohibitions and vague exceptions — even when pressed. What’s more, while some of the government’s conduct in evidence doubtlessly violates the law, the injunction would also prohibit perfectly legal, uncoercive communications.
Social Media Platforms, Free Speech, and Government Coercion
This case’s discovery process — and extensive reporting — has revealed in recent months that federal officials and law enforcement coordinated with social media platforms on matters of content moderation. They met and corresponded frequently. Both bureaucrats and tech executives largely agreed that a few usually liberal elites (not the marketplace of ideas) ought to settle many momentous public debates. To this end, online platforms removed or suppressed disfavored speech on such subjects as COVID-19, election integrity, and Hunter Biden’s laptop. Platforms also removed parodic content as well as demonstrably true speech that they feared could weaken the government’s public messaging.
Such rank and paternalistic speech policing unquestionably vandalizes America’s ideals of free thought and expression. However, private platforms enjoy a First Amendment right to moderate the user content they host, and American case law says that officials may voice their opinions to private entities. The legal question is, therefore, whether the government played essentially a coercive (or significantly encouraging), rather than a persuasive, role in this dishonorable episode.
This question evades simple or easy answers. As presented by Doughty, some officials’ conduct — e.g., threatening public statements made insufficiently compliant social media platforms — stunk of coercion. Other public and private statements rest uncomfortably between assertive persuasion and coercion.
However, most of the communications Doughty chronicles fall distinctly outside any reasonable definition of coercion. Indeed, the Biden administration seems to have done the gravest violence to values-free expression with the platforms’ freely given assent or at their solicitation. The platforms’ enthusiasm for this partnership points not to state coercion but to a mutually perpetuated alliance to narrow significantly the openness of American society.
Doughty reports this coordination at length. A good example of this is Facebook’s relationship with the Center for Disease Control (CDC): “Facebook began to rely on [the CDC’s Carol] Crawford and the CDC to determine whether claims were true or false,” the judge writes. “Because Facebook’s content-moderation policy called for Facebook to remove claims that are false and can lead to harm, Facebook would remove and/or censor claims the CDC itself said were false.” From a strictly legal perspective, a private company’s ill-conceived schemes to suppress disfavored information, even when it relies credulously on the medical advice of controversial public health officials, seems to constitute no First Amendment violation.
Moreover, when platforms disagreed with the government, they regularly rebuffed its moderation requests. “According to the Plaintiffs’ allegations … the FBI had a 50% success rate regarding social media’s suppression of alleged misinformation,” Doughty admits. The platforms seem to have functioned primarily as allies, rather than subordinates, of censorship-happy officials. Nonetheless, in portraying platforms’ content-moderation as state coerced, Doughty’s legal arguments seem to ignore the existence of this well-maintained — and oft-exercised — discretion.
Indeed, the government and social media’s collaborative narrative shaping did such damage precisely because the two parties very often worked eagerly in tandem.
Doughty also recounts Biden administration conduct that approaches, or veers well into, outright coercion. For example, on numerous occasions administration officials publicly threatened uncooperative platforms with disadvantageous regulatory reform. Then–White House Press Secretary Jen Psaki publicly threatened them with “robust” antitrust enforcement.
One White House staffer bullied Facebook over email, stating, “[I]nternally, we have been considering our options on what to do about it.” Another frustrated staffer wrote: “Are you guys f***ing serious? I want an answer on what happened here and I want it today.” President Joe Biden alleged that social media platforms’ inability to remove some disfavored vaccine-related content was “killing people.”
In Missouri v. Biden, One Size Doesn’t Fit All
Judges can — and should — enjoin such coercive public statements and private bullying. Yet such behavior makes up a minority of the incidents Doughty’s memorandum relates, and his injunction oversteps greatly. He seems to argue that the pervasiveness of the government’s communications with platforms transmutes mundane — even tepid — content-moderation-related correspondence, which in isolation would likely conform with the First Amendment, into impermissible coercion or significant encouragement.
However, the notion that the First Amendment disallows purely persuasive government correspondence with social media on matters of content moderation departs from established case law. For decades, conservatives and other originalists have argued that judges must interpret the law as it is, not as they wish it were; that bad policy ought not to function as a synonym for unconstitutional; and that the task of altering or augmenting the law must fall to elected legislators, not courts.
Congress may restrict the speech of federal officials (in their official capacity). Now, Doughty’s confused injunction illustrates the difficulties inherent in crafting a one-size-fits-all, all-at-one-go remedy to government–platform coercion — particularly in a judicial injunction. Schemes to restrict the government’s correspondence usually either overreach or provide cavernous carveouts — e.g., for national security, election integrity, or public safety — that crafty officials can exploit. Nonetheless, attempting even inevitably imperfect restrictions has merit given the abuses Missouri v. Biden has spotlighted.
Perhaps more importantly, however, to strengthen political and legal accountability for transgressors, Congress should institute robust (and public) reporting requirements on the federal government’s content-moderation-related correspondence with social media platforms. Uncovering such misconduct ought not require historic investigative reporting or extensive legal discovery.
As in so many current public policy controversies, Congress has a duty to overcome its malaise and simply do its job.
David B. McGarry is a policy analyst at the Taxpayers Protection Alliance.
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