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No feat of rhetoric could disguise the flagrantly political nature of the federal court ruling on July 4 that restricted the Biden administration’s communications with social media platforms — but Judge Terry A. Doughty, who wrote the opinion, did his best to cover his tracks. The 155-page opinion, which could hinder the government’s efforts to counter false and misleading online speech about issues like election interference and vaccine safety, is laced with lofty references to George Orwell and quotations from Benjamin Franklin and Thomas Jefferson, making it more reminiscent of a civics essay than a federal judicial opinion.
But the far more objectionable part of Judge Doughty’s ruling in the case, which was brought in the U.S. District Court for the Western District of Louisiana by two Republican state attorneys general, is the cherry-picked legal analysis attached to an overbroad injunction. The injunction seems to prevent anyone in the Biden administration from having any kind of communication with online platforms about matters related to speech.
But in a baffling list of exceptions, Judge Doughty cites situations — some reasonable, others possibly contravening First Amendment doctrine — in which the government may still communicate with platforms about speech. The exceptions include, for instance, telling the companies about postings involving criminal activity — but also telling them about “national security threats,” which could easily be used as general pretext for government interference with protected speech.
The resulting ruling, however, is not just a muddled set of instructions for communication between government and tech platforms (an urgent issue for those concerned with misinformation as we approach the 2024 presidential election). It is also a bellwether of a disconcerting new political tactic: using state and local authorities, along with federal forum- and judge-shopping, to make national internet policy.
On Monday, Judge Doughty refused a stay on his injunction, putting it into immediate effect. His perplexing line-drawing seems to make more sense when you consider how closely it tracks the specific facts in this case — for instance, episodes in which the government communicated with social media platforms about posts concerning the efficacy of ivermectin or hydroxychloroquine in treating Covid-19 or the efficacy of masks in combating the transmission of the coronavirus. If those issues seem to overlap a bit too neatly with recent conservative preoccupations, that’s because the case is part of a wider war conservatives believe they are fighting, in which tech executives and Democratic government officials are supposedly colluding to censor conservative voices.
After years of failed attempts by Congress to regulate major social media platforms — regulation that for nearly a decade Americans of all political stripes have said they want — state authorities are rushing in to capitalize on unmet political demand. Other examples include laws passed in Florida and Texas that prohibit larger social media platforms from removing posts because of the opinions they express and the ban on TikTok that Montana has passed.
Going local has strategic if sometimes unethical advantages. It is no accident that this case arose in Louisiana. As the law professors Leah Litman and Steve Vladeck have noted, Judge Doughty, a Donald Trump appointee, was at the time the only judge who heard cases filed in the Monroe Division of the Western District of the state. By choosing their venue, the plaintiffs in effect got to choose their judge. Similarly, it is no accident that the same Monroe Division (and with Judge Doughty presiding again) is also the venue for a pending civil suit that accuses a host of private actors loosely connected to the case against the Biden administration of conspiracy to engage in “mass surveillance and censorship.” Appeals in both cases will be heard by the U.S. Court of Appeals for the Fifth Circuit, which has been sympathetic to state attempts to regulate big tech.
These are issues of vital public concern. That’s why it’s a shame that factionalized state politics and forum shopping will determine their resolution. How do you regulate a public right like freedom of expression when that right is intermediated by private companies? What role, if any, can or should the government play?
Those questions lie at the heart of the case before Judge Doughty. The facts in the case include episodes in which members of the Biden administration sent frenetic messages to employees of social media companies, asking them to remove doubtful claims about Covid-19 and the 2020 election. I agree with Judge Doughty that the apparent pressure that the Biden administration placed on the platforms is questionable. But the degree to which those demands were heeded or coercive is uncertain. They seem to be classic examples of what political scientists call jawboning: the government’s use of public appeals or private channels to induce change or compliance from businesses.
Jawboning is not a tool unique to any one political party and it is a dubious tactic no matter who uses it. Recent Republican administrations and government officials have used the same tactic to try to control online speech and speech by private companies. Multiple former employees of Twitter testified in Congress that officials in the Trump administration pressured the platform to remove speech that insulted or derided Mr. Trump.
It is undoubtedly disconcerting when a White House official, whether Democrat or Republican, sends a stern email to a social media company about speech on its platform. But what is unclear from Judge Doughty’s clunky opinion is how the government crossed the line separating a widely accepted if sometimes scurrilous practice from outright censorship. He tells us nothing about how to distinguish permissible government pressure from impermissible government coercion. The law needs that clarity desperately.
State and local politicians are understandably eager to capitalize on the popular fatigue that has come from the failure of federal government to regulate social media. But not every government institution is created equal in its capacity to address such thorny questions of national policy. The future of online freedom shouldn’t be shaped by ideologically lopsided courts in far-flung federal jurisdictions or local politicians angling for the national stage.
Kate Klonick (@Klonick) is an associate professor of law at St. John’s University.
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Posted on 13 Jul 2023 11:00 link