There is good news and bad news.
The good news: A federal appeals court temporarily blocked a controversial order that had restricted most of Joe Biden administration officials and federal agencies from talking to social media companies about certain content.
The bad news: A lower court judge actually issued such an order in the first place.
The content is misinformation, which, as we know, has been widespread on those social media platforms.
The case could have major implications for the First Amendment, for how social media companies work with government agencies, and whether the proliferation of misinformation on social media can be abated if it even should.
It also presents us with a difficult question that may not have an answer.
A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit said the preliminary injunction issued this month by a federal judge in Louisiana would be put aside “until further orders of the court,” according to the three-sentence order. The appeals court also called for expedited oral arguments in the case.
The case is Missouri v. Biden. Republican attorneys general from Missouri and Louisiana (and several individuals) sued the Biden Administration, claiming that the government is illegally colluding with social media companies to suppress conservative speech on their platforms.
This is a thoroughly debunked conspiracy theory. The government is not forcing, and has not forced Big Tech to censor conservative speech. This would violate the First Amendment, and the tech companies likely would have filed their own lawsuits. But they didn’t, which means their free speech rights were unobstructed ― but never let a debunked conspiracy theory stand in the way of a conservative temper tantrum.
So, the attorneys general filed suit, and on July 4, ironically, a Trump-appointed federal judge, Terry A. Doughty in the Western District of Louisiana, issued a temporary injunction blocking agencies like the Department of Justice, Health and Human Services, the FBI, the CDC, and many individual government officials from contacting these platforms about misinformation, which was particularly rampant during the COVID pandemic, and has continued to proliferate on issues such as election integrity, climate change, immigration and the economy.
The Biden Administration appealed the ruling to the Fifth Circuit, perhaps the most conservative appeals court in the country. Whatever the Fifth Circuit ultimately decides, an appeal is likely, which would send the case to the Supreme Court. All of this can take time, and with a presidential election on deck, misinformation will go into overdrive. Any delay undermines crucial government efforts to strengthen American democracy against the dangers of disinformation.
Two legal scholars, Leah Litmann and Laurence Tribe, called Judge Doughty’s legal reasoning totally flawed.
While there are, in theory, interesting questions about when and how the government can try to jawbone private entities to remove speech from their platforms, this decision doesn’t grapple with any of them. In fact, from the 155-page opinion, it’s not even clear this case really raises those questions. Each step in the reasoning of the decision manages to be more outlandish than the last — from the idea that the plaintiffs have standing to the notion that the plaintiffs are entitled to an injunction at this stage of the case to the sweep of the injunction that the district court issued.
The authors point out that the injunction not only insulates social media companies from any form of coercion by government agencies or officials, but it would also “insulate social media companies from criticism about their content moderation policies.” That could be interpreted to mean that Anthony Fauci, for example, the administration’s former Chief Medical Advisor, could not go on CNN and criticize vaccine misinformation someone posted on Instagram, Twitter, etc. Essentially, the ruling makes it illegal to use free speech to refute falsehoods because that might infringe upon imagined free speech concerns.
This begs the question: Who is impinging on whose free speech?
This is a speech impediment of the first order and an illegal one if Judge Doughty is implying that. While the First Amendment limits government regulation of private speech, it does not restrict the government from enjoying the right to free speech. In what’s known as the Government Speech Doctrine, the government, and anyone speaking on behalf of the government, has the same right to free speech as any citizen.
Judge Doughty cited several topics in his decision. “All were suppressed,” he wrote on social media at the urging of administration officials. Notably, each “suppressed” topic was a conservative view, or more precisely, a conservative view drenched by misinformation, conspiracy theories or downright falsehoods.
I find it hard to believe that Judge Doughty ever legitimately passed the bar exam. The fact he is deluded enough to believe in a right-wing conspiracy theory that the federal government is suppressing conservative speech on social media platforms immediately calls into question his ability to adjudicate fairly from the bench ― on anything. But if he is so intellectually incurious to not question the credibility of such a theory, that seriously calls into question his ability to even be a judge ― of anything. It further supports the suspicion that lawmakers, with their approval power, care only about a judicial nominee’s partisan interests and are not deeply interested in qualifications, let alone intellect.
For those applauding Judge Doughty’s temporary injunction, I might ask the following: If the attorneys general in Louisiana and Missouri were so concerned about conservative views being censored, why weren’t they concerned about the free speech of brands that wish to express support for gay rights? Or about the banning of books? Or curricula in public schools?
Yes, I know. They would argue that this is about the government curtailing free speech, but I wouldn’t buy it. It smells more like the usual conservative carping when their opinions, excuse me, their free speech, get debunked and then removed from whatever platform it was posted on.
Case in point, before this lawsuit’s filing, Florida and Texas had enacted laws barring platforms from removing content based on political points of view, an irony given how those states and others, including Missouri and Louisiana, have either passed laws or introduced legislation to restrict public discussion in schools of things like critical race theory and LGBTQ issues. Have the attorneys general of Missouri and Louisiana offered any critique or, perish the thought, condemnation of those infringements?
Yet, this is not the central question for me.
In 1919, Justice Oliver Wendell Holmes defined what is now known as the clear and present danger test. In the landmark decision Schenck v. United States, he wrote:
“The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”
Holmes, who later began to doubt his decision, had argued that the government could curtail one’s free speech rights if that speech presented a “clear and present danger” to the government’s recruitment efforts during World War I. And “no court,” he wrote, “could regard them as protected by any constitutional right.”
The case sent to prison a group of Yiddish-speaking socialists for distributing leaflets urging the public to disobey the draft (though only advising peaceful action).
The ruling was effectively overturned by Brandenburg v. Ohio in 1969, which involved a Ku Klux Klan leader, Clarence Brandenburg, speaking at a rally in Ohio suggesting revenge against their usual bogeymen (Jews and Blacks) if the federal government continued to “suppress the white, Caucasian race.” Ohio law prohibited advocating “crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.” Brandenburg was arrested, tried and convicted.
The Supreme Court threw out his conviction and issued a new test: Advocacy can only be punished if such speech “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
Side note: Brandenburg’s defense team? The ACLU.
The obvious question: What role should the government take in combating misinformation or harmful content on social media?
But here is the more compelling question: Is it possible for misinformation to represent a clear and present danger?
The answer may depend on whether you think we are a nation at war with itself.
Various writers, pundits and scholars have advanced that idea, wondering whether a new civil war in the United States is on the horizon.
Maybe that’s paranoid thinking, but consider where we’ve been: a global pandemic where a million people died and idiotic misinformation was rampant. A despotic individual tried to steal the presidency and has continued to lie about stolen elections based on total bullshit. Have we passed the point of hypotheticals about what happens when free speech has zero guardrails?
So in that context, should the government force companies to remove content? If you answered yes, be careful what you wish for. Can you imagine a Trumpian government modeled after that pathetic creature’s hateful vindictiveness? This is a man who has promised retribution against all his perceived enemies if he is reelected. Republicans had already promised a revenge agenda ahead of the midterms; we’re seeing it now in the House of Representatives. Those Republicans, with all their crying about a weaponized government, should look in the mirror. The censorious actions by Republicans and conservatives currently underway (both in and out of government) are troubling enough. It’s not hard to imagine a petty madman’s return to the White House taking that to a level that would make the very worst tyrants of history envious.
So, no, I am not okay with the government forcing companies to remove content. In fact, quite the opposite.
The crucial and oft-forgotten point of the First Amendment is that even when speech is offensive, ugly, disturbing or frightening, it is protected. More importantly, when silenced, you not only deny the speaker his right to speak, you deny yourself the right to hear, which can be more critical in a democratic society than the speech itself.
What Thomas Paine argues in his introduction to “The Age of Reason,” and John Stuart Mill defends in his essay “On Liberty,” is that it’s not just the right of the person who speaks to be heard, it is the right of the rest of us — and I would go a step further and insist that it is our responsibility, our duty as citizens in a free society — to hear, to listen and to pay attention. Very close attention.
Mill writes, “If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.”
Most of history’s free speech controversies, if I may call them that, involve blasphemy: Socrates, Copernicus, Galileo, Spinoza, Scopes, and beyond. Almost always someone has “gone too far” for his time, and outraged the sensibilities of the community as well as the laws and codes of the state and profaned the gods. Thank goodness figures that ennobled dared to do so.
But just as the great outliers of history are revered because they were proven right, so must the outrageous cranks of our present day be discredited, nay, shamed, when proven wrong. It means we must give them voice and listen carefully, so that we may know what they profess and refute it accordingly. You can’t do that if they are silenced.
And so, I am okay with the government asking social media companies to reconsider the insidiousness of the dangerous lies on their platforms, and requesting their removal.
And why not? Who at any social media company is tasked with doing the proper fact-checking and research to vet the tomfoolery peddled on their platforms? Research takes time, and some of that research, like medical, historical or legal minutia of legislation on policy proposals, takes expertise and knowledge. How many virologists are working at Meta? Are there any economists on Elon Musk’s payroll? A constitutional lawyer? Imagine the number of fact-checkers required, and the amount of time required, to vet the endless stream of posts touting absurdities.
If one views this as coddling a villain — and I certainly consider MAGA fanatics a villainous enough threat to our way of life — that is not my meaning.
As Sun Tsu instructs in his “Art of War,” know your enemy. It means that you have to know his strengths, his weaknesses, his modus operandi, his traits — everything, including, and especially in the case of MAGA cultists, every faux outrage, delusional assertion, and pulled-from-their-nether-region conspiracy theory, no matter how outrageous or appalling.
Free speech has consequences, and one consequence of someone spouting ludicrous fantasies is that the rest of us have the right to point out that person’s reprehensible ignorance. Indeed, if we believe in free speech, if we care about democracy, if we care about our nation’s future, then we have an absolute moral obligation to denounce such heretics, and with great vigor.
We can’t do that if we don’t let them speak, and if we don’t hear them.
So leave the bullshit up, but allow the government their free speech right to tell people it’s bullshit. Let government agencies use social media platforms to say, “This is bullshit.” Point out, shout out what is bad so we can differentiate it from what is good.
The best way to protest contemptible free speech is with more speech, not less. You’d think the offended parties in this lawsuit could grasp that concept. Maybe they need to enroll in a refresher course on the First Amendment.