Here’s some news that probably won’t come as much of a surprise to anyone who has paid the slightest attention to current events practically since the start of the pandemic. Earlier this year, the states of Missouri and Louisiana went to court alleging that the Biden administration had colluded with Big Tech social media platforms to censor people’s free speech regarding government’s COVID response. In July, U.S. District Judge Terry Doughty accepted the issuance an overwhelming order preventing officials from the CDC, the National Institute of Allergy and Infectious Diseases, the Justice Department, and the State Department from contacting the platforms. The White House appealed, but now a three-judge panel of the Fifth Circuit has kept part of the order, although not all. (New York Post)
The Biden administration likely violated the First Amendment when it relied on social media companies to remove false or misleading content about COVID-19, a federal appeals court ruled Friday, reversing a court order of district which prevented various officials and agencies from communicating with the platforms.
The White House, the surgeon general, the Centers for Disease Control and Prevention, and the FBI “likely coerced or significantly encouraged social media platforms to moderate content” and, in doing so, “likely violate the First Amendment,” the United States’ Fifth Amendment, based in New Orleans. Certain Circuit Court of Appeals.
The Fifth Circuit remains one of the most conservative benches in the country, so this decision was not entirely unexpected. But the panel trimmed Doughty’s order quite a bit. Officials from the National Institute of Allergies and Infectious Diseases, the Cyber Security and Infrastructure Security Agency and the State Department withdrew from the requirement. The reason given was that parts of Doughty’s original order were “vague and broader than necessary.”
It’s also important to remember that this is not the end of the process, and that the Biden administration has not yet technically pleaded guilty to violating the First Amendment. All that has been determined by this court is that the case can proceed because the plaintiffs have a reasonable chance of prevailing.
But the final complaint will be significantly slimmer than what the plaintiffs had originally requested and what Doughty had ordered. Not only will the order apply to fewer people, but nine of the original ten provisions regarding government contact with Big Tech platforms have been dropped because they are not actual violations of the First Amendment. Courts are unwilling to say that the government can’t engage in “urging, encouraging, pressuring or inducing” platforms to remove content. The government is only crossing the line when it comes to “significant coercion or inducement.”
It seems like an impossible rule to apply and I hope the Supreme Court sees it differently. (Then they’ll get the request to review the case.) For example, how is someone in a court of law supposed to determine when one of Biden’s people is “encouraging” Facebook to take down someone’s post instead of “significantly encouraging” him to do so? And what would constitute “coercion” in a situation like this? The legal definition Coercion is “any scheme, plan, or pattern intended to make a person believe that failure to do an act would result in serious harm or physical restraint against any person.”
This brings us to the definition of “damage”, which is as solid as a mirage. Not even FBI leadership would be stupid enough to threaten someone on Twitter that if they don’t delete a particular tweet, the Bureau will send someone to break their arms. But they could start to “mention” some move in Congress that could introduce costly changes to the Communications Decency Act if offensive content isn’t removed. Would that be “damage?”
I still maintain that a much broader decision is needed here. For the most part, the vast majority of government at all levels should never contact social media platforms about any specific content on their sites for any reason. The only exceptions would be law enforcement responding to reports of actual crimes such as child pornography or credible threats of violence to people or property. And honestly, platforms should already be removing these types of posts and reporting users to law enforcement without being told to do so. But what was happening during the pandemic (and is certainly still happening today) was very different. There are too many people in government colluding with willing partners across the social media landscape to stamp out wrong thinking. We’ve seen it over the centuries, from Pol Pot to Maximilien Robespierre. It never ends well.
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