Goverment shouldn’t bully social media
Legal briefs are usually dry as dust, so delighted laughter is an unusual response to reading one. You can, however, bet dollars to doughnuts that the
Supreme Court justices allowed themselves judicious private chuckles when they read one particular amicus (friend of the court) brief in the case concerning for which they will hear oral arguments on Monday.
At issue is government behavior that is no laughing matter: secret pressure to suppress speech by, and deny access to speech by, Americans, thereby violating the First Amendment. The brief is from the Foundation for Individual Rights and Expression (FIRE), which devotes much time to reminding academics of the First Amendment’s existence. FIRE notes that some people supporting FIRE’s side of the argument are “oblivious to the irony” of their doing so: Their “head-spinning inconsistencies” involve favoring state governments’ behavior that is similar to the federal government’s behavior that they are deploring.
The fundamental facts in Monday’s case are not in dispute. The high-stakes argument concerns the legal significance of how those facts are characterized.
Biden administration officials from the White House, FBI, Centers for Disease Control and Prevention and other federal entities persistently contacted social media platforms in attempts to influence the platforms’ dissemination of various posts expressing views the government disliked or that it mincingly deemed “problematic.” Many concerned the pandemic and involved supposed “disinformation” (about lockdowns, masks, vaccines, etc.) that turned out to be not merely debatable but true.
In 2023, the U.S. Court of Appeals for the 5th Circuit upheld a district court’s injunction against certain federal officials coercing, or too powerfully importuning, social media platforms to delete or otherwise disfavor certain constitutionally protected speech. The Biden administration asked the Supreme Court to disallow these “unprecedented limits on the ability of the President’s closest aides to use the bully pulpit to address matters of public concern” and on the FBI’s and CDC’s abilities to perform their missions.
Something certainly is unprecedented. Government attempts to shape the discourse on social media platforms are as new as the platforms. But government attempts to enlarge its reach are as old as government.
Clarity is elusive concerning when attempts at “persuasion” become “coercive.” And when “jawboning” or “cajoling” become impermissible pressure on the platforms. The common problem is government pressure to make the platforms’ “content moderation” policies - deciding what and who they will delete or downgrade - reflect government’s preferences.
Social media platforms are private entities that express, through those policies, their editorial preferences. When government interferes with these, the platforms suffer a First Amendment injury.
Government has a need and duty to speak. The presidency is, as a notably talkative occupant (Theodore Roosevelt) said, a “bully pulpit.” Other agencies, too, must address the public about their objectives and methods.
President Biden, with his characteristic blunderbuss rhetoric, accused social media companies of “killing people” by not censoring pandemic-related posts he disliked. He has a (frequently exercised) right to speak public foolishness. Government speech should not, however, be secret for the purpose of concealing stealthy attempts to control others’ speech.
When the government’s secretive speaking to platforms serves its agenda of shaping discourse on those platforms, the government is not speaking to the public to which it is accountable. Rather, it is attempting to unaccountably regulate individuals’ speech. This is an attempt (as another amicus brief says) “to launder constitutional violations through private entities.”
The Biden administration has behaved badly, but the urge to break private entities to the saddle of government is bipartisan. FIRE’s brief notes acerbically that some states’ attorneys general who are challenging the federal government’s pressure on social media platforms did, themselves, pressure Target Corp. by intimating, preposterously, that the sale of LBGTQ-themed merchandise might violate some states’ obscenity laws. And they suggested, ominously, that Target’s “directors and officers may be negligent,” and therefore liable, because they authorized merchandising that “negatively affected” the company’s stock price.
Concerning Monday’s case, the Biden administration says its dealings with the platforms have been constitutionally insignificant because the process was “collaborative.” This is supposed to be reassuring?
Pending judicially clarified rules, this rule might suffice: Government should confine itself to publicly explaining and justifying its behavior, avoiding private speech with the platforms that is secretive and conveys even a tincture of pressure. So, you states that want to compel - for the protection of disfavored conservatives - the platforms to adopt more lenient content moderation policies: You should understand that this is incompatible with the Constitution, and (hence) with conservatism, properly understood.