Two months after President Biden took office, his top digital adviser sent an email to Facebook officials urging them to do more to limit the spread of « vaccine hesitancy » on the social media platform.
At the Centers for Disease Control and Prevention, officials held « weekly sync » meetings with Facebook, once sending the company 16 « misinformation » posts. And in the summer of 2021, the chief assistant surgeon general repeatedly urged Google, Facebook and Twitter to do more to fight misinformation.
Examples are among dozens of interactions described in a 155-page ruling by a Louisiana federal judge, who on Tuesday imposed temporary but far-reaching limits on how members of the Biden administration can interact with social media companies. The government appealed the ruling on Wednesday.
The case is a flashpoint in the broader effort by conservatives to document what they claim is a liberal conspiracy by Democrats and tech company executives to silence their opinions. It taps into right-wing anger at how social media companies have treated Covid origin stories, the 2020 election, and Hunter Biden, the president’s son.
The end result could shape the future of First Amendment law in a rapidly changing media environment and alter how far the government can go in trying to prevent the release of potentially dangerous information, particularly during an election or during emergencies such as a pandemic.
The government actions at the center of the case were largely intended as public health measures. But Tuesday’s order instead saw the issue through the filter of biased culture wars, asking whether the government has violated the First Amendment by illegally threatening social media companies to censor speeches the Biden administration has found distasteful and potentially harmful to the public.
The case was brought by two Republican attorneys general and five individuals who campaigned against masks, argued vaccines weren’t working, opposed lockdowns, and pushed drugs that medical experts denounced as ineffective, such as ivermectin and hydroxychloroquine.
And it’s overseen by Judge Terry A. Doughty, who was nominated by President Donald J. Trump and has previously expressed little skepticism about the debunked claims of vaccine skeptics. In an earlier case, Judge Doughty accepted as fact the statement that « Covid-19 vaccines do not prevent disease transmission. »
Judge Doughty was confirmed by the Senate in 2018, by a vote of 98 to 0, in the United States District Court for the Western District of Louisiana, which was seen in recent years in favor of right-wing lawsuits. Last year he spoke out against the Biden administration’s vaccination mandate for Head Start preschool programs, saying that the « freedom interests of the persons charged with taking the Covid-19 vaccine outweigh any interest generated by the compulsory administration of vaccines ».
The judge’s preliminary injunction is already taking effect. A previously scheduled threat identification meeting Thursday between State Department officials and social media executives was abruptly canceled by officials, according to two people familiar with the decision, which was previously reported by the Washington Post.
Administration officials said the Justice Department is reviewing the judge’s lengthy order to determine which businesses should be halted when it comes to communicating its concerns about disclosure.
« The court order, which bars the government from even talking to tech companies about their content moderation policies, deals a major blow to the government’s vital efforts to strengthen U.S. democracy against threats of disinformation, » Lia Litman AND Laurence H. Tribe he wrote on the Just Security blog Wednesday.
“Each step in the decision reasoning manages to be more outlandish than the last,” the couple wrote.
White House officials have pledged to comply with the judge’s injunction, which will remain in effect as the case moves forward unless a higher court overturns the order.
« But we will not apologize for taking responsible action to protect public health, safety and security in the face of challenges such as a deadly pandemic or foreign attacks on our elections, » said Sharon Yang, White House spokeswoman. « We also won’t apologize for believing that social media platforms have a responsibility — a critical responsibility — to account for the effects their platforms have on the American people. »
The broad scope of the ruling could make it difficult for the administration to comply, several legal experts said.
It allows the government to continue notifying platforms of certain content, including posts about criminal activity, threats to national security, and foreign election interference. But a subset of that content may also be protected by the First Amendment, the kind of talk the judge’s order says the administration can’t discuss with businesses.
And the line between the two may be blurring, said Genevieve Lakier, a professor at the University of Chicago Law School, who called the judge’s rulings « pretty significant departures from precedent. »
“The result is this incredibly broad injunction that appears to be blocking large swathes of the executive branch from communicating with platforms about discourse,” he said.
“Should government officials figure out for themselves which threat is serious enough that they can communicate about it to the platforms, or is it not serious and therefore can’t?” she said. « How are they going to draw this line? »
In his order, Judge Doughty described what he called a campaign by White House officials and government agencies to lobby social media companies.
In one case, the judge wrote that aides to first lady Jill Biden repeatedly persuaded Twitter executives to remove a video that had been edited to make it appear profane to a group of children. Twitter has removed the video.
In another case, Judge Doughty wrote that a senior Biden official asked Twitter to remove a parody account linked to Finnegan Biden, daughter of Hunter Biden and granddaughter of President Biden. She wrote that 45 minutes after the request, Twitter suspended the account.
After Vivek Murthy, the surgeon general, urged social media companies to « take action against misinformation superspreaders » in July 2021, the companies removed posted information from 17 accounts linked to the « Misinformation Dozen”, a group of people who often distributed false anti-vaccination claims.
Judge Doughty said the social media companies’ decision came after multiple emails, calls and meetings over the course of weeks between Mr. Murthy’s top associates and senior executives from several social media companies.
« Public and private pressure from the White House has apparently had its intended effect, » the judge wrote. « All 12 members of the ‘Disinformation Dozen’ have been censored and pages, groups and accounts linked to the Disinformation Dozen have been removed. »
He also described regular meetings between the companies and the FBI’s San Francisco field office, where he wrote that as many as eight agents were responsible for relaying concerns about social media posts to seven tech companies several times a month.
Over several pages, Judge Doughty references the FBI investigation into Hunter Biden’s laptop, suggesting a link between government contacts with social media companies and some platforms’ decision to remove information about the affair.
« The FBI also likely misled social media companies into believing the Hunter Biden laptop story was Russian disinformation, which led to the story being suppressed just weeks before the 2020 presidential election, » the judge wrote. in his order.
Conservatives have already begun exploiting that kind of language to fuel their broader political indictments against Biden and the Democrats. Rep. Jim Jordan of Ohio, the Republican chairman of the Judiciary Committee, tweeted, « Great loss to the censorship industrial complex. »
But these are accusations that the president and his collaborators reject as wrong and misleading.
Administration officials argued in the case that they did not exert unlawful lobbying on social media companies. Instead, they said the government has a responsibility to combat the spread of misinformation through discussions with companies.
And they say — supported by evidence from many of the social media companies — that the platforms have made independent decisions about what information to promote or suppress, without any government oversight.
Internal files released by Twitter last year document instances where the company rejected government requests.
But in Tuesday’s ruling, Judge Doughty found that the administration’s efforts amounted to coercion of First Amendment-violating platforms by essentially replacing private companies on behalf of the government.
The judge said the pressure went beyond aggressive encouragement of the platforms to remove seats – which, he said, would in itself violate the First Amendment – and amounted to coercion of some of America’s biggest companies by the » most powerful office in the world. »
Jeff Kosseff, an associate professor of cybersecurity law at the US Naval Academy, said the government should understand how broadly Judge Doughty’s bans should be enforced.
“The biggest issue for clarity is who this actually applies to — and whether it applies to them in a personal, official capacity, or both,” he said. « You don’t want an office assistant at the CDC to be able to voice your opinions in your spare time? »