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“After nearly two hours of oral argument on Monday, a majority of the justices appeared sympathetic to the Biden administration’s argument that a federal court in New Orleans went too far in an order that would limit the government’s ability to communicate with social media companies about their content moderation policies…
“A federal judge in Louisiana agreed with the challengers that federal officials had violated the First Amendment by ‘coercing or significantly encouraging’ the content moderation decisions of social media platforms. U.S. District Judge Terry Doughty issued an order that limited communications between the White House and several other government agencies with social media platforms. The U.S. Court of Appeals for the 5th Circuit largely upheld Doughty’s order, although it narrowed its application to a smaller group of officials, including the CDC, FBI, and the White House.” SCOTUSblog
The right urges the Court to uphold the restrictions, arguing that social media companies are being pressured to censor protected speech.
“It’s hard to believe social-media executives would have been as obeisant without the government’s sword hanging over them. In private, White House officials also didn’t merely implore platforms to increase censorship. They demanded they do so and held regular meetings with executives when they pressed for updates. Never have we heard of government officials regularly meeting with newspaper editors to discuss editorial decisions…
“[Former White House Press Secretary Jen] Psaki crossed the First Amendment line when she [stated] that the President ‘also supports better privacy protections and a robust antitrust program. So his view is that there’s more that needs to be done to ensure that this type of misinformation, disinformation, damaging, sometimes life-threatening information is not going out to the American public.’ That’s a threat…
“It may be fine for officials to flag false statements or ask that terrorist content be removed. But government communications must also be considered in a broader context, as the Court’s Bantam Books (1963) precedent instructs. ‘People do not lightly disregard public officers’ thinly veiled threats,’ the Court noted by way of holding that government intimidation can constitute ‘informal censorship.’”
Editorial Board, Wall Street Journal
“Monday’s wrangling focused on the peril of disinformation and misinformation — as defined by Uncle Sam. There was no recognition that government censorship was to blame for some of the biggest follies of the COVID pandemic. Schools would not have been shut down for so long if the government hadn’t suppressed experts and others who correctly explained that COVID posed scant risk to young children and padlocking schools would not keep kids immune from infection.”
James Bovard, New York Post
Rep. Jim Jordan (R-OH) writes, “Internal emails show that the social media giants caved and changed their policies to censor more Americans’ speech because Facebook and YouTube needed to maintain a good relationship with the White House for other important policy decisions. There’s a word for that: coercion…
“The censorship was so bad that Facebook’s President of Global Affairs Nick Clegg, the former Deputy Prime Minister of the United Kingdom, protested to the Biden White House (to no avail) that the White House’s demands ‘represent[ed] a significant incursion into traditional boundaries of free expression in the US.’ You know things are bad when a former British Member of Parliament has a better understanding of America’s First Amendment than the Biden White House.”
Jim Jordan, Fox News
The left urges the Court to reverse the restrictions, arguing that the government is allowed to ask social media companies to remove harmful speech.
The left urges the Court to reverse the restrictions, arguing that the government is allowed to ask social media companies to remove harmful speech.
“A substantial amount of the underlying evidence now before the Court in this case is problematic or factually incorrect… The [district] court took an email exchange by Dr. Collins to Dr. Fauci to mean that the two were plotting to have social media companies ‘take down’ certain speech. The truth is the email exchange very clearly shows the two were discussing debunking it by publishing medical information (i.e., rebutting the speech with speech)…
“The district court also referred favorably to plaintiffs having, in the court’s view, ‘indicated that 929,000 tweets were political speech by American citizens.’ But the Solicitor General notes the underlying document referenced makes clear the tweets referenced were actually sent by 422 accounts controlled by the Russian Internet Research Agency.”
Justin Hendrix and Ryan Goodman, Just Security
“Neither [the] plaintiffs nor the Fifth Circuit identified a single example where a government official threatened some kind of consequence if a platform did not comply with the government’s requests. Instead, the Fifth Circuit appeared to complain about the fact that the government has so many communications with social media companies…
“It claimed that the Biden administration violated the First Amendment because government officials ‘entangled themselves in the platforms’ decision-making processes,’ and ordered the government to stop having ‘consistent and consequential’ communications with social media platforms. It’s unclear what that decision even means — how many times, exactly, may the government talk to a social media company before it violates the Fifth Circuit’s order?”
Ian Millhiser, Vox
“The First Amendment does not gag public officials from urging Facebook or the Washington Post or anyone else to publish or not publish certain information, especially when it contains dangerous lies about a once-in-a-century pandemic that could exacerbate the crisis. The First Amendment bars government censorship, not government persuasion…
“Justice Brett Kavanaugh, a former White House staff secretary, also provided a real-world perspective after [Justice] Alito fumed that officials had been too mean to the platforms and would never treat the traditional press so sharply… ‘I’d assumed, thought, [and] experienced government press people throughout the federal government who regularly call up the media and berate them,’ he [said]… Government employees yell at members of the media all the time. The media can accept or reject their requests. That is how it works.”
Mark Joseph Stern, Slate
