An oral hearing in the U.S. Supreme Court is scheduled for Monday Murthy v. Missouri, which raises the question of when government efforts to suppress “misinformation” on social media violate the First Amendment. Neglecting this central question, The New York Times paints the case as part of a conspiracy by Donald Trump 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 large numbers of people with false and unverified information” Times Journalists Jim Rutenberg and Steven Lee Myers ask, “Where is the line between protecting democracy and trampling on the right to free speech?” This isn’t the first time Myers has described free speech as a threat to democracy. Last year he feared that “the First Amendment has become, for better or worse, an obstacle to virtually any government effort to stifle an issue that, in the case of a pandemic, threatens public health and, in the case of integrity of the population. elections, and even democracy itself.” The alleged conflict between free speech and democracy is a bizarre and highly misleading way of framing the issues raised by Murthy.
When Biden administration officials placed persistent pressure on social media platforms to limit the free speech of those officials deemed 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 the growing power of social media.” on public opinion”. The implication is that government officials have the authority to weigh free speech against competing values on a case-by-case basis. But that’s not how the First Amendment works.
The First Amendment prohibits the government from “abridging free speech,” period. As interpreted by the Supreme Court, that command applies to all types of speech, no matter how inaccurate, misleading, controversial, offensive, or hateful, unless it falls under one of several narrowly defined exceptions, such as defamation, actual threats, fraud, obscenity and incitement to “imminent lawless action”.
Speech that concerns Rutenberg and Myers, such as false claims about COVID-19 vaccines and fraud in the 2020 presidential election, does not fall under any of these exceptions. It is therefore constitutionally protected, precluding any ad hoc attempt to balance the value of allowing it against the risks they might pose.
The Biden administration admits it. “No one disputes that the government would have violated the First Amendment if it had used threats of adverse government action to force private social media platforms to moderate content,” he says. “But no such threats have occurred here.”
The dispute within Murthy focuses on the question of 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 on the answer to this 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 finding that “executive branch agencies violated the First Amendment by interfering with private moderation decisions.” Such agencies, FIRE states, “have used both carrot and stick tactics to indirectly achieve what the Constitution prohibits [when it is done] directly: government 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
The agency “engaged in unlawful ‘significant encouragement’ by persistently pressuring platforms to change their moderation policies.” Some federal officials, it says, “became so entangled in the moderation policies of social media platforms that they were able to effectively rewrite the platforms’ policies from within.”
FIRE also agrees with the 5th Circuit that some of these communications qualified as coercive. “White House officials have issued urgent and uncompromising calls for restraint
content” and used “disturbing, inflammatory, and hypercritical phraseology” when social media companies failed to moderate content as required or as quickly as officials desired,” it says. “Calls for specific posts to be removed “as soon as possible,” the use of words and phrases such as “you’re hiding the ball” and officials warning they were “gravely concerned” made it clear that the threats to social media companies were “formulated practically as orders”. And the officials repeatedly “refuse”.[d] take “no” for an answer and annoy him[ed]’ social media companies until they “suffer.”[ed].’ Even more ominously, they “threatened, both expressly and implicitly, with retaliation for inaction.”
The document “contains extensive evidence that social media platforms interpreted communications from the White House and FBI agents as threats and acted accordingly,” FIRE says. “For example, one social media platform expressly agreed to “comply” [its] policies” to reflect the changes officials seek. And several social media platforms do this[ook] content, including posts and accounts from the United States, in direct compliance with the FBI’s request to eliminate “disinformation” in the run-up to the 2022 congressional elections. When the White House and FBI “asked” the platforms to jump , eventually, albeit reluctantly, asked how high.”
FIRE adds that the White House and FBI “threatened ‘adverse consequences’ to social media platforms if they did not comply.” When the platforms’ content moderation “was too slow for the White House’s liking, officials publicly accused them of ‘killing people'” and “threatened them privately with antitrust enforcement, repeal of Section 230 immunity and other ‘fundamental reforms’ to secure platforms have been ‘held accountable’.”
In addition to these “explicit threats,” FIRE states, “both White House and FBI officials’ statements contained implicit threats of consequences because those officials are backed by the ‘extraordinary power’ wielded by the federal executive branch. For example, the White House officials often alluded to the President’s potential involvement if social media platforms did not moderate content satisfactorily.” And “as a federal agency that conducts various Internet investigations,” the FBI “has the tools at its disposal to force a platform to remove content.”
The Electronic Frontier Foundation (EFF), which filed a Murthy short in support of either side, sees the situation a little differently. He fears that too broad an injunction against government interaction with social media platforms could preclude useful, constitutionally permissible contacts that inform Facebook and others. of disinformation threats that they may want to counter by applying their own rules. But the EFF also believes that some of these contacts could plausibly be considered coercive. The EFF mentions Deputy Assistant to the President Rob Flaherty’s “Facebook communications regarding specific posts by Tucker Carlson and Tomi Lahren expressing COVID-19 vaccine hesitancy,” which it describes as “at least a closed case that should probably be settled against the government”.
Rutenberg and Myers’ article, by contrast, barely acknowledges this Murthy raises any legitimate First Amendment concerns. Instead, they fear that the Supreme Court’s decision “could reduce the government’s freedom to monitor online content.” To be clear: Rutenberg and Myers think that would be bad.
As they see it, Trump’s fantasy of a stolen election represents a clear and present danger to democracy, as evidenced by the Capitol riot that disrupted Congress’ ratification of Joe Biden’s victory. They note that Trump, after being banned from social media following the riot, is now back on those platforms, free to promote his false grievance as he seeks to unseat Biden in this year’s election. Worse, “Facebook and YouTube announced they would roll back their content restrictions claiming the 2020 election was stolen.” As a result, “the torrent of misinformation that previous efforts had slowed, but not stopped, has resumed with even greater force.”
Trump’s ban, of course, was the result of private decisions by private companies, as was his restoration. The controversial decisions in Murthy, instead, were carried out in the context of relentless government pressure that the Biden administration deems constitutionally permissible. Rutenberg and Myers clearly agree.
When social media platforms crack down on controversial speech at the behest of the government, users tend to think twice before expressing opinions that might offend authorities. But Rutenberg and Myers are not concerned about such self-censorship. Instead, they fear that constitutional objections to government interference in social media have had a “chilling effect” on efforts to limit free speech online.
To underline the need for such intervention, Rutenberg and Myers cite Jen Easterly, director of the Cybersecurity and Infrastructure Security Agency. “We deal with critical infrastructure, and the most critical infrastructure is our cognitive infrastructure,” Easterly said in 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 government and al [Department of Homeland Security] continue to ensure the American people have the facts they need to protect our critical infrastructure.”
Ensuring that Americans “know the facts” is one thing. It’s about responding to “misinformation and disinformation” by citing countervailing evidence. But when combating “misinformation and disinformation” involves government-encouraged censorship of controversial speech, it raises obvious First Amendment concerns. The very idea of a government agency charged with protecting “our cognitive infrastructure” should raise alarm bells for anyone who values freedom of thought and speech.
The fact that Rutenberg and Myers don’t hear those bells suggests that they assume the Orwellian mission can only influence speech they don’t like, because the government will infallibly distinguish between “disinformation” and useful content. This is a rather short-sighted view for people whose jobs depend on a constitutional provision that prevents the government from enforcing such rulings.