No feat of rhetoric could disguise the overtly political nature of the July 4th federal court ruling that limited the Biden administration’s communications with social media platforms — but Judge Terry A. Doughty, who wrote the opinion, made his an option to cover their tracks. The 155 page opinionwhich could hinder the government’s efforts to counter false and misleading Internet speech on topics such as election interference and vaccine safety, is laced with lofty references to George Orwell and quotes from Benjamin Franklin and Thomas Jefferson, making it more reminiscent of a civics essay than a civics an essay federal judicial opinion.
But the far more objectionable part of Judge Doughty’s ruling in the case, which was brought to the US District Court for the Western District of Louisiana by two Republican attorneys general, is the cherry-picked legal analysis attached to an overly broad injunction. The order appears to prevent anyone in the Biden administration from having any communication with online platforms about matters related to speech.
But in a confusing list of exceptions, Judge Doughty cites situations — some reasonable, others potentially violating First Amendment doctrine — in which the government can still communicate with speech platforms. The exceptions include, for example, telling the companies about posts involving criminal activity — but also telling them about “national security threats,” which could easily be used as a blanket pretext for government interference with protected speech.
The resulting decision, however, is not just a confusing set of instructions for communication between government and technology platforms (an urgent matter for those concerned with disinformation as we approach the 2024 presidential election). It’s 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 order, 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 example, episodes in which the government communicated with social media platforms about posts regarding the effectiveness of ivermectin or hydroxychloroquine in treating Covid- 19 or the effectiveness of masks in combating the transmission of the coronavirus. If those issues seem to overlap a little too neatly with recent conservative preoccupations, that’s because the case is part of a broader war conservatives believe they’re fighting, in which tech executives and Democratic government officials are allegedly 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 to capitalize on unsatisfied political demand. Other examples include laws passed in Florida and Texas that prohibit larger social media platforms from removing posts based on the opinions they express and the TikTok ban that Montana passed.
Going local has strategic, if sometimes unethical, advantages. It is no coincidence that this case appeared in Louisiana. Like law professors Leah Litman and Steve Vladeck notedJudge Doughty, appointed by Donald Trump, was at the time the only a judge who heard cases filed in the Monroe Division of the Western District of the state. In choosing their venue, the plaintiffs have in effect chosen their judge. Similarly, it is no coincidence that the same Monroe Division (and with judge Doughty again presiding) is also the site for pending civil litigation that accuses a host of private actors loosely connected to the case against the Biden administration of conspiring to engage in “mass surveillance and censorship.” Appeals in both cases will be heard by the US Court of Appeals for the Fifth Circuit, which has been sympathetic to state attempts to regulate big technology.
These are matters of vital public concern. It is therefore 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 mediated by private companies? What role, if any, can or should 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 frantic messages to social media staff asking them to remove dubious claims about Covid-19 and the 2020 election. I agree with Judge Doughty that the apparent pressure that the administration Biden made on the platforms, is questionable. But the degree to which these demands were heeded or enforced is uncertain. They appear 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 with undertakings.
Jawboning is not a tool unique to any political party and it is a questionable tactic no matter who uses it. Recent Republican administrations and government officials have used the same tactic to try to control Internet speech and private company speech. Multiple former Twitter employees witnessed in Congress that officials in the Trump administration pressured the platform to remove speech that insulted or mocked Mr. Trump.
It’s definitely disconcerting when a White House official, whether Democrat or Republican, sends a scathing email to a social media company about speaking out on its platform. But what is unclear from Judge Doughty’s clumsy opinion is how the government crossed the line in separating a widely accepted, if sometimes flawed, practice from outright censorship. He tells us nothing about how to distinguish permissible government pressure from impermissible government coercion. The law desperately needs that clarity.
State and local politicians are understandably eager to capitalize on the popular fatigue that has come from the federal government’s failure to regulate social media. But not every government institution is created equal in its ability to deal with such thorny questions of national politics. The future of internet freedom should not be shaped by ideologically lopsided courts in distant federal jurisdictions or local politicians seeking the national stage.