When federal officials persistently pressured social media platforms to delete or downgrade posts those officials didn’t like, a government lawyer told the Supreme Court Monday, they were simply offering “information” and “advice” to their “partners ” in the fight against “disinformation”. ” If judges accepted this characterization, they would bless clandestine government censorship of online speech.
The case, Murthy v. Missouri, pits two states and five social media users against federal officials who forcefully, repeatedly and angrily demanded that Facebook et al. suppress speech that the government considers dangerous to public health, democracy, or national security. Some of these “exhortations,” as U.S. Deputy Attorney General Brian Fletcher described them, have occurred in public, such as when President Joe Biden accused the platforms of “killing people” by allowing users to say things he believed would discouraged Americans from getting vaccinated against COVID -19.
Surgeon General Vivek Murthy, who echoed that charge in more polite terms, called for an “all-of-society” effort to combat “the urgent public health threat” posed by “health misinformation,” which according to him it could include “legal and regulatory information”. measures.” Other federal officials have said that holding social media platforms “liable” could result in antitrust actions, new regulations or an expansion of their civil liability for content posted by users.
Added to those public threats were private communications that only came to light thanks to their discovery in this case. As Louisiana Attorney General J. Benjamin Aguiñaga noted on Monday, officials like Deputy Assistant to the President Rob Flaherty “rate[ed] platforms 24/7,” calling for content restrictions to be broadened and enforced more aggressively.
Those emails alluded to presidential displeasure and warned that White House officials were “considering our options for what to do” if the platforms did not align. The platforms responded by changing their policies and practices.
Facebook executive Nick Clegg was eager to appease the president. In emails to Murthy, he noted that Facebook had “adapted[ed] policies on what we are removing”; had deleted pages, groups, and accounts that offended the White House; and would “soon expand our COVID policies to further reduce the spread of potentially harmful content.”
Facebook took these steps, Clegg said in another internal email cited by Aguiñaga, “because we were under pressure from the administration.” Clegg expressed regret for having succumbed to that pressure, saying: “We shouldn’t have done it.”
According to Fletcher, none of this implicated the First Amendment because “no threat occurred.” He meant that federal officials never explicitly threatened the platforms with “adverse government action” while urging suppression of constitutionally protected speech.
This position is difficult to reconcile with the 1963 Supreme Court decision Bantam Books v. Sullivan. In that case, the Court found that the Rhode Island Commission to Encourage Morality Among Youth had violated the First Amendment by pressuring book distributors to remove titles deemed objectionable.
Notably, the commission itself had no enforcement authority, and at least some of the reported books did not meet the Supreme Court’s obscenity test, meaning the distributors were not breaking any laws by selling them. The Court concluded, however, that the commission’s communications, which ostensibly sought voluntary “cooperation” but were “worded practically as orders,” were unconstitutional because they were intended to suppress unfavorable speech and had that predictable outcome.
The Biden administration’s meddling of social media bears a strong resemblance to that situation. But Fletcher argued that federal officials were simply using “the bully pulpit” to persuade platforms that they had a “responsibility” to limit dangerous speech.
“Pushing pressure on platforms in back rooms, shielded from public view, is not at all using the bully pulpit,” Aguiñaga noted. “That’s just being a bully.”
Free Press, an inappropriately named organization that aims to promote “positive social change, racial justice, and meaningful engagement in public life,” warns that a ruling against the government “could allow social media platforms to leave aside misinformation”. In other words, a government decision would give it the power to define “disinformation” and require its removal, which the First Amendment clearly prohibits.
© Copyright 2024 by Creators Syndicate Inc.