When the government tells you, a private enterprise, that it would really like you to do something, the “or else” is always implied. “Nice internet you got there. It would be a shame if anything happened to it,” is the threat with plausible deniability of mob bosses. And government as well, even when you agree with what the government wants or believe that the government’s actions are in the public interest when it comes to speech the government does not want out there.
This was the point of Judge Terry Doughty when he enjoined the Biden administration from asking nicely that social media platforms remove medical information it felt was false or dangerous. And the Fifth Circuit has now affirmed Judge Doughty’s injunction.
A federal appeals court ruled on Friday that the Biden administration most likely overstepped the First Amendment by urging the major social media platforms to remove misleading or false content about the Covid-19 pandemic, partly upholding a lower court’s preliminary injunction in a victory for conservatives.
And therein lies the problem, as unintentionally made clear by the reporting by the New York Times on the decision. It is not a victory for conservatives, although in this instance it was a suit by Republican attorneys general that raised the issue. It is a victory for free speech, for the First Amendment. And had the tables been turned, as could very easily be the case, it would not have been a victory for progressives, but still for the First Amendment.
The ruling, by a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit in New Orleans, was another twist in a First Amendment case that has challenged the government’s ability to combat false and misleading narratives about the pandemic, voting rights and other issues that spread on social media.
The judges wrote that the White House and the Office of the Surgeon General had “coerced the platforms to make their moderation decisions by way of intimidating messages and threats of adverse consequences” and “significantly encouraged the platforms’ decisions by commandeering their decision-making processes.”
Many will not see the “free” part of this problem as being anything more than a well-intended government trying to save people from the malevolent medical lies perpetrated by those whose only interest is trying to attack Biden, the Democrats and progressives. And, indeed, whether they have a point about the best medical advice or their half-baked certainty and refusal to consider collateral consequences, alternative actions and the possibility that they might not be right resulted in trade-offs that caused grave harm.
But whether right or wrong, that is absolutely not the point. The point is that the First Amendment protects stupid, wrong and even deceitful speech as well as smart, correct and well-intended speech. And it protects it from the government, whether the government enacts a law to openly prohibit disfavored speech or flexes its not insignificant muscle to circumvent the Constitution’s prohibition.
The appellate court also found that the Federal Bureau of Investigation had used coercion in its interactions with the companies, which took down 50 percent of the material online that the bureau’s agents flagged as troublesome.
“Given the record before us, we cannot say that the F.B.I.’s messages were plainly threatening in tone or manner,” the judges wrote. Nevertheless, “we do find the F.B.I.’s requests came with the backing of clear authority over the platforms.”
We’ve long been painfully aware of “submission to the shield,” the undue pressure that derives from people with the power to kill you asking you to do something. It may not be an order or a command, and the polite request may not end with the words “or else,” but that’s only because it’s unnecessary. The threat is inherent in the asking. For the government to argue, as here, that it was merely a polite request and hardly a demand upon pain of the FBI storming you home and shooting your puppy, doesn’t cut it.
“This administration has promoted responsible actions to protect public health, safety and security when confronted by challenges like a deadly pandemic and foreign attacks on our elections,” the White House said in a statement. “Our consistent view remains 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.”
No matter what salutary goals the government claims, and no matter whether the government is right or wrong, or more right than wrong, it does not get to decide what speech is truth and what is not. And contrary to the administration’s claim, social media platforms have no responsibility, critical or otherwise, to make the “independent” choices to allow only that which the government approves.
The sub rosa issue here is that people believe and follow voices they trust on social media, whether because they validate people’s ideology or they lead the tribe. The government, on the other hand, no longer carries the degree of influence it once did. When the government told people to turn out and line up for the polio vaccine, everybody came.
When the government did the same for the Covid-19 vaccine, the results were significantly less effective. Much of that was due to false claims that the Covid vaccine caused grave harm, but the government’s claim that it would stop the spread of Covid rather than lessen the threat of harm from the disease* exposed an unforced error in the government credibility. The solution to people’s refusal to believe the government at its word isn’t silencing disagreement, but establishing credibility again. That’s not a social media problem, and the First Amendment remains in force to protect it from the government’s polite requests. Or else.
*Full disclosure. I was vaccinated and believe I made the right choice. When I later got Covid, it was very mild and passed quickly. But the utility of the vaccine in reducing the effects of Covid does not mean that claims that it would prevent vaccinated people from getting Covid were any less false.