On October 20, 2023, the Knight Institute will host a closed convening to explore the question of jawboning: informal government efforts to persuade, cajole, or strong-arm private platforms to change their content-moderation policies. Participants in that workshop have written short notes to outline their thinking on this complex topic, which the Knight Institute is publishing in the weeks leading up to the convening. This blog post is part of that series.
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On July 4, 2023, Chief Judge Terry A. Doughty, a federal judge in Louisiana, ruled that efforts by officials in the Biden administration to convince/cajole/coerce (the proper characterization is disputed) the major social media platforms to suppress certain content—mainly mis- and disinformation about COVID-19 and COVID-19 vaccines—violated the First Amendment. Judge Doughty, a Trump appointee, issued an injunction forbidding a broad array of federal government officials from having any contact with social media platforms with the purpose of inducing the platforms to suppress content. On September 8, 2023, a panel of the Fifth Circuit Court of Appeals partially affirmed Judge Doughty’s injunction. On the core issue of whether these communications between government officials and platforms violated the First Amendment, the Fifth Circuit agreed with Judge Doughty. However, the panel did reject his decision to enjoin some of the officials, and sharply narrowed the scope of the injunction.
Is the Fifth Circuit’s injunction defensible as a legal matter? The Supreme Court has held that the First Amendment protects even intentional lies. Therefore, mis- and disinformation about COVID and vaccines is fully protected speech, which the government itself cannot legally suppress. However, the actual speech-suppression at issue here was by private social media platforms, who are not subject to First Amendment restrictions. In response, Judge Doughty and the Fifth Circuit recited extensive evidence that officials throughout the Biden administration actively worked with the platforms in identifying content that was then suppressed, and both publicly and in private strongly pressured the platforms to suppress misinformation. This, the court said, converted the platforms’ speech-suppression into unconstitutional speech suppression by the government.
The test the courts applied in finding a violation, taken from a 1982 Supreme Court case (Blum v. Yaretsky), asked whether the government had “either exercised coercive power or exercised such significant encouragement that the private parties’ choice must be deemed to be that of the government.” And both courts found that both “coercion” and “significant encouragement” had occurred. The Fifth Circuit therefore enjoined the defendants from coercing or significantly encouraging platforms to act against constitutionally protected speech.
That administration officials “significantly encouraged” platforms to suppress medical misinformation is, of course, true—officials trumpeted their efforts publicly and extensively. But this alone cannot possibly be unconstitutional because although the government is prohibited from suppressing speech that it dislikes, another body of well-established law—the government speech doctrine—states that the government itself has the right to speak on any topic, and express any viewpoint, free of constitutional restrictions. Under the “significant encouragement” test, if the FBI identifies a social media account as an ISIS front, informs the hosting platform of this, and successfully urges them to shut down the account, the FBI has violated the First Amendment. That simply cannot be the law (and it isn’t). In truth, both common sense and the actual decisions of the Supreme Court make it clear that the government violates the First Amendment in this context only when the government coerces or threatens a private actor into suppressing speech. In the primary case in which the Court did find a violation on similar facts, the 1963 decision Bantam Books v. Sullivan, a government commission explicitly threatened book distributors with criminal prosecution if they did not suppress books identified by the commission as “immoral.”
The real question is: Did government officials threaten and coerce platforms into suppressing content? The Fifth Circuit concluded that the White House, the Surgeon General, and the FBI did (but the CDC did not). But this is implausible. What power could the Surgeon General possibly wield over social media platforms to intimidate or threaten them? Consider the sheer size of the companies involved; Meta and Alphabet are two of the largest companies in the world, and between them control Facebook, Instagram, WhatsApp, and YouTube. And the owner of the app formerly known as Twitter (now “X”), Elon Musk, is the richest person in the world (and is hardly a shrinking violet). And as for the FBI, neither court cited any evidence that FBI had sought to coerce the platforms in any way. So, the injunction against these officials lacks a legal basis.
With the White House defendants, the story is more complicated. White House officials did put sustained, public and private pressure on the platforms to suppress misinformation, and at times spoke in a bullying tone. And, of course, the White House is very powerful. But when one looks at what actual, specific “threats” either opinion identifies, there are only two possibilities. First, Judge Doughty points to a vague statement about antitrust scrutiny as proof of a threat. But the Biden administration’s interest in antitrust scrutiny of Big Tech was clear from day one, independent of COVID. Given that there was no evident tie between “antitrust scrutiny” (whatever that means) and requests/demands to take down any content, the finding of coercion is dubious.
The other “threat” from the White House cited by both courts was repeal or reform of Section 230 of the Communications Decency Act, the law that protects platforms from liability for third party content. Repeal of Section 230 is indeed an existential threat to platforms, but only Congress can change Section 230. Judge Doughty concluded that because, after 2021, the Democrats controlled both Houses of Congress, the threat was credible—but this completely ignores the Senate filibuster. More tellingly, although both Presidents Biden and Trump called for the repeal of Section 230 during the 2020 election, Congress has done absolutely nothing. The idea that the tech platforms would take seriously an off-hand White House call to repeal or reform Section 230 thus verges on the absurd.
Which takes us to the final, strange aspect of this case—the absence from the evidentiary record of the purported “victims” of the government’s coercion, the platforms themselves. If the major social media platforms were involuntarily coerced into suppressing content, why didn’t they say so (and why didn’t the plaintiffs collect any evidence to that effect)? The answer, almost certainly, is that in suppressing COVID misinformation the platforms were mainly enforcing their own content moderation policies, though they were undoubtedly getting both pressure and help from the government in doing so. And their primary motive was to maintain their public reputations, not to please the government. That is not coercion.
None of which is to say that the White House did nothing wrong. It at best smells fishy for government officials to urge private actors to do what the government cannot do directly. And when the action urged is the suppression of speech associated almost entirely with the officials’ political opponents, the stench gets worse. But on the facts as Judge Doughty and the Fifth Circuit lay them out, what the Biden administration did, while morally dubious, probably did not violate the Constitution.
Ashutosh Bhagwat Ashutosh Bhagwat is the Boochever and Bird Endowed Chair for the Study and Teaching of Freedom and Equality at the UC Davis School of Law. He is the author of The Myth of Rights and Our Democratic First Amendment. Ash is also the Executive Editor of the Journal of Free Speech Law.