Injunction against Biden social media ‘censorship’ is under fire
Fireworks on the Fourth of July? Of course. But nobody expected they’d come from a federal courthouse in Monroe, La.
In a sweeping, scathing decision, US District Judge Terry Doughty issued a preliminary injunction against the Biden administration this week, calling on it to halt efforts to discourage social media companies from posting user comments that the government considers false or misleading. On Wednesday, the Biden administration said it will appeal Doughty’s ruling.
The attorneys general of Missouri and Louisiana, along with individual plaintiffs, sued President Biden and several federal agencies last year. They alleged that the administration’s efforts to combat online “misinformation” had degenerated into a campaign to pressure online giants like Facebook, Twitter, and YouTube to carry out acts of censorship that would be illegal if the government had done the same directly.
For example, the plaintiffs presented evidence of a months-long effort by White House officials to goad Facebook and Twitter into deleting user messages that expressed skepticism about COVID-19 vaccines, even if those messages did not violate the companies’ policies. The social media companies often locked these users out of their accounts, deleted their most controversial messages, or limited the ability of others on the network to read those messages.
“The Plaintiffs have presented substantial evidence in support of their claims that they were the victims of a far-reaching and widespread censorship campaign,” Doughty wrote. Elsewhere he added that “if the allegations made by Plaintiffs are true, the present case arguably involves the most massive attack against free speech in United States’ history.”
Plaintiffs allege efforts became a ‘massive attack against free speech’
The injunction forbids several government agencies, including the Department of Health and Human Services and the FBI, from reaching out to social media companies for the purpose of “encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.”
Internet policy analysts who spoke with the Globe were generally critical of the injunction, but some of them said Doughty’s ruling had some merit.
Nathaniel Lubin, former director of the Office of Digital Strategy under President Obama and now a fellow at the Berkman Klein Center for Internet & Society at Harvard University, said that federal officials were right to combat misinformation about COVID.
“They’re referring to a period of time where 1.1 million people were dying,” Lubin said. “These were the people in government who were trying to stop people from dying.”
Lubin agreed that the government put pressure on the social media companies, but believes there’s no evidence they went too far. “They’re expressing an advocacy position,” he said, “but they’re not telling these companies what to do.”
But David Greene, civil liberties director of the Electronic Frontier Foundation, said the judge cited worrisome evidence of possible government overreach, such as an implied threat that the Biden administration might consider antitrust suits against social media companies that didn’t comply. Greene called Doughty’s ruling “a recognition that the government may well have crossed the constitutional line in many situations.”
Greene said that other examples cited in the injunction seem more like innocent attempts at persuasion by government officials than coercion. He also noted that Doughty’s injunction has broad loopholes. It still allows government officials to ask social media companies for crackdowns on posts involving criminal activity, conspiracies, and threats to national security and election integrity.
“It has these exceptions that seem to swallow many of the prohibitions,” Greene said.
Will Duffield, policy analyst of the Cato Institute, a libertarian think tank, believes the plaintiffs have made a good case that they were censored. But rather than a ban on government interactions with social media companies, Duffield said such conversations should be permitted, but recorded and made public. This would let government agencies express legitimate concerns, while preventing them from abusing their power.
“I think there’s definitely evidence that the government went too far here,” said Duffield. “The question is what to do about it.”