The Evolving Free-Speech Battle Between Social Media and the Government

Earlier this month, a federal judge in Louisiana issued a ruling that restricted various government agencies from communicating with social-media companies. The plaintiffs, which include the attorneys general of Missouri and Louisiana, argued that the federal government was coercing social-media companies into limiting speech on topics such as vaccine skepticism. The judge wrote, in a preliminary injunction, “If the allegations made by plaintiffs are true, the present case arguably involves the most massive attack against free speech in United States’ history. The plaintiffs are likely to succeed on the merits in establishing that the government has used its power to silence the opposition.” The injunction prevented agencies such as the Department of Health and Human Services and the F.B.I. from communicating with Facebook, Twitter, or other platforms about removing or censoring content. (The Biden Administration appealed the injunction and, on Friday, the Fifth Circuit paused it. A three-judge panel will soon decide whether it will be reinstated as the case proceeds.) Critics have expressed concern that such orders will limit the ability of the government to fight disinformation.

To better understand the issues at stake, I recently spoke by phone with Genevieve Lakier, a professor of law at the University of Chicago Law School who focusses on issues of social media and free speech. (We spoke before Friday’s pause.) During our conversation, which has been edited for length and clarity, we discussed why the ruling was such a radical departure from the way that courts generally handle these issues, how to apply concepts like free speech to government actors, and why some of the communication between the government and social-media companies was problematic.

In a very basic sense, what does this decision actually do?

Well, in practical terms, it prevents a huge swath of the executive branch of the federal government from essentially talking to social-media platforms about what they consider to be bad or harmful speech on the platforms.

There’s an injunction and then there’s an order, and both are important. The order is the justification for the injunction, but the injunction itself is what actually has effects on the world. And the injunction is incredibly broad. It says all of these defendants—and we’re talking about the President, the Surgeon General, the White House press secretary, the State Department, the F.B.I.—may not urge, encourage, pressure, or induce in any manner the companies to do something different than what they might otherwise do about harmful speech. This is incredibly broad language. It suggests, and I think is likely to be interpreted to mean, that, basically, if you’re a member of one of the agencies or if you’re named in this injunction, you just cannot speak to the platforms about harmful speech on the platform until, or unless, the injunction ends.

But one of the puzzling things about the injunction is that there are these very significant carve-outs. For example, my favorite is that the injunction says, basically, “On the other hand, you may communicate with the platforms about threats to public safety or security of the United States.” Now, of course, the defendants in the lawsuit would say, “That’s all we’ve been doing. When we talk to you, when we talk to the platforms about election misinformation or health misinformation, we are alerting them to threats to the safety and security of the United States.”

So, read one way, the injunction kills an enormous amount of speech. Read another way, it doesn’t really change anything at all. But, of course, when you get an injunction like this from a federal court, it’s better to be safe than sorry. I imagine that all of the agencies and government officials listed in the injunction are going to think, We’d better shut up.

And the reason that specific people, jobs, and agencies are listed in the injunction is because the plaintiffs say that these entities were communicating with social-media companies, correct?

Correct. And communicating in these coercive or harmful, unconstitutional ways. The presumption of the injunction is that if they’ve been doing it in the past, they’re probably going to keep doing it in the future. And let’s stop continuing violations of the First Amendment.

As someone who’s not an expert on this issue, I find the idea that you could tell the White House press secretary that he or she cannot get up at the White House podium and say that Twitter should take down COVID misinformation—

Right.

Does this injunction raise issues on two fronts: freedom of speech and separation of powers?

Technically, when the press secretary is operating as the press secretary, she’s not a First Amendment-rights holder. The First Amendment limits the government, constrains the government, but protects private people. And so when she’s a private citizen, she has all her ordinary-citizen rights. Government officials technically don’t have First Amendment rights.

That said, it’s absolutely true that, when thinking about the scope of the First Amendment, courts take very seriously the important democratic and expressive interests in government speech. And so government speakers don’t have First Amendment rights, but they have a lot of interests that courts consider. A First Amendment advocate would say that this injunction constrains and has negative effects on really important government speech interests.

More colloquially, I would just say the irony of this injunction is that in the name of freedom of speech it is killing a hell of a lot of speech. That is how complicated these issues are. Government officials using their bully pulpit can have really powerful speech-oppressive effects. They can kill a lot of important speech. But one of the problems with the way the district court approaches the analysis is that it doesn’t seem to be taking into account the interest on the other side. Just as we think that the government can go too far, we also think it’s really important for the government to be able to speak.

And what about separation-of-powers issues? Or is that not relevant here?

I think the way that the First Amendment is interpreted in this area is an attempt to protect some separation of powers. Government actors may not have First Amendment rights, but they’re doing important business, and it’s important to give them a lot of freedom to do that business, including to do things like express opinions about what private citizens are doing or not doing. Courts generally recognize that government actors, legislators, and executive-branch officials are doing important business. The courts do not want to second-guess everything that they’re doing.

So what exactly does this order say was illegal?

The lawsuit was very ambitious. It claimed that government officials in a variety of positions violated the First Amendment by inducing or encouraging or incentivizing the platforms to take down protected speech. And by coercing or threatening them into taking down protected speech. And by collaborating with them to take down protected speech. These are the three prongs that you can use in a First Amendment case to show that the decision to take down speech that looks like it’s directly from a private actor is actually the responsibility of the government. The plaintiffs claimed all three. What’s interesting about that district-court order is that it agreed with all three. It says, Yeah, there was encouragement, there was coercion, and there was joint action or collaboration.

And what sort of examples are they providing? What would be an example of the meat of what the plaintiffs argued, and what the judge found to violate the First Amendment?

A huge range of activities—some that I find troubling and some that don’t seem to be troubling. Public statements by members of the White House or the executive branch expressing dissatisfaction with what the platforms are doing. For instance, President Biden’s famous statement that the platforms are killing people. Or the Surgeon General’s warning that there is a health crisis caused by misinformation, and his urging the platforms to do something about it. That’s one bucket.

There is another bucket in which the platforms were going to agencies like the C.D.C. to ask them for information about the COVID pandemic and the vaccine—what’s true and what’s false, or what’s good and what’s bad information—and then using that to inform their content-moderation rules.

Very different and much more troubling, I think, are these e-mails that they found in discovery between White House officials and the platforms in which the officials more or less demand that the platforms take down speech. There is one e-mail from someone in the White House who asked Twitter to remove a parody account that was linked to President Biden’s granddaughter, and said that he “cannot stress the degree to which this needs to be resolved immediately”—and within forty-five minutes, Twitter takes it down. That’s a very different thing than President Biden saying, “Hey, platforms, you’re doing a bad job with COVID misinformation.”