A U.S. District Judge in Louisiana recently halted various federal officials and agencies from prompting social media platforms to clamp down on politically disfavored speech, via a preliminary injunction. This decision has garnered responses that highlight a concerning decline in cross-party support for impartial application of free speech.
U.S. District Judge Terry Doughty, in his lengthy ruling, stated that while the reported censorship in this case largely targeted conservative viewpoints, the concerns addressed extend beyond political affiliations. He emphasized that the privilege of free speech isn't aligned with any specific political party or ideology.
Despite Doughty's observations, critics of the verdict were unmoved. Some posited that the communication involved in the case - largely concerning the Biden administration's actions against COVID-19 misinformation - did not equate to government-directed censorship.
Law professors Leah Littman and Laurence Tribe suggested there could be scenarios where the government infringes upon the First Amendment by pressuring private companies to remove protected speech. However, they argued that Doughty's ruling didn't thoroughly discuss when such instances could occur and seemed to imply that the government is unable to even diplomatically request companies to refrain from spreading provable misinformation.
The depiction of the Biden administration's actions contrasts with the extensive evidence assessed by Doughty. The collected emails and text messages demonstrate that federal officials repeatedly pressured platforms like Facebook, Twitter, and YouTube to remove content considered by the government to be a public health risk.
Public reprimands from President Joe Biden and Surgeon General Vivek Murthy, who blamed the platforms for contributing to fatalities by disseminating anti-vaccine messages, coincided with these private demands. They, along with other White House representatives, insisted that these platforms be held accountable for their alleged irresponsibility. To ensure accountability, Murthy hinted at potential "legal and regulatory measures," while other officials suggested imposing new privacy regulations or diminishing protection from civil liability for user-posted content.
The administration's demands weren't confined to provable misinformation. Officials consistently urged the platforms to not only apply their existing moderation rules more stringently but also broaden the scope of speech under scrutiny to cover "borderline content," deemed misleading or unconstructive, even if it might be factual.
As both Littman and Tribe would be aware, the First Amendment protects even "verifiable misinformation," indicating that government suppression is inappropriate. Had a Republican administration exercised similar actions against progressive speech under the guise of public safety or national security, one could argue, they would likely not dismiss constitutional worries so easily.
However, they did concede that the First Amendment has relevance when the government targets online speech. Conversely, The Washington Post expressed concern that Doughty's ruling could destabilize years of efforts to improve the partnership between the government and social media companies. The New York Times, surprisingly, compared the fight against constitutionally safeguarded speech about COVID-19 to action against illegal or harmful material like child pornography or speech facilitating human trafficking or other illegal activities.
The Times had earlier cautioned that the First Amendment potentially obstructs virtually any government endeavors to quell problems that could endanger public health in pandemic circumstances, or even democratic integrity in relation to election legitimacy.
According to the Times and other one-time advocates of the First Amendment, the issue lies in excessive speech from individuals they deem inappropriate.
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