Judge Enjoins Federal Agencies from Urging Social Media Companies to Moderate Content– But Where Is the Line?

​On July 4th, Judge Terry A. Doughty, Trump appointed judge of the United States District Court for the Western District of Louisiana, issued an opinion and order enjoining listed federal agencies from “urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech posted on social-media platforms.” The decision follows outcries from some conservatives that government agencies are pressuring social media companies to remove or modify content posted by conservative voices. The order was rapidly stayed by the Fifth Circuit Court of Appeals.  One can be assured that the debate will continue.

We have questions.  

The case, Missouri v. Biden, stems from accusations of government censorship and viewpoint discrimination against conservative speech – specifically, posts related to whether vaccines are effective as a COVID-19 treatment, the origins of the COVID pandemic , the efficacy of lockdowns to slow the spread of the disease, and other content. Unsurprisingly, many on the right lauded the ruling as a victory against the administration’s “Orwellian ‘Ministry of Truth’” (quoting Doughty himself). Others decry it as politically driven theater, which could have significant, deleterious consequences on the government’s efforts to stem the flow of mis- or disinformation.

Judge Doughty found that the posts in question did not fall within the narrow category of speech that is unprotected by the First Amendment (e.g., incitement to violence). He further cited specific examples of exchanges between the White House and various agencies and social media companies that could reasonably be interpreted as coercive. 

On the other hand, many reading the same comments could also interpret them as mere requests – intended to promote public health and safety. Herein lies the difficulty. 

What is clear from this case is that this issue is far from resolved. The Fifth Circuit on July 16th temporarily paused Doughty’s order and agreed to expedite the administration’s appeal. Ultimately that court will decide whether an injunction is appropriate (and, perhaps, another court after that). In the meantime, we are left with those pesky questions.

Is government advice to social media companies helpful? The government possesses intelligence gathering capabilities far superior to those of any social media company. Do platforms welcome advice derived from those capabilities about the harmfulness of  content? Or does the sharing of information constitute undue pressure? Is this a fact-specific inquiry? Where is the line between violating First Amendment rights and protecting public safety? Should the recipient’s perception matter at all? 

These questions merit an informed public debate. In our view, the best means of doing so would be to hold public, bipartisan congressional hearings (arguably not achieved by recent hearings held by the House Judiciary Select Subcommittee on the Weaponization of the Federal Government). The witness list for the hearings should prominently feature executives from the social media platforms who can address the questions directly.

It’s true that courts make policy all the time, but such critical policy debates should not be resolved by injunction (or by reactive, piecemeal state legislation). A robust discussion at the national level is a far better means of comprehensively parsing the many nuances at play when it comes to social media and free speech. 

If it is determined that the government is threatening social media platforms, then that’s a problem that must be addressed – by the courts or by Congress, or both. But at the same time, the government must also be able to speak to private actors, including private companies, and especially on issues of public concern. (You might say it’s fundamental to the very concept of governance.)

One thing lacking from Judge Doughty’s opinion is any articulable roadmap for distinguishing between legitimate government speech and coercion. We need one.  
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As such, we might urge some of our more enlightened statesmen on both sides of the aisle: it’s time to speak up.