Republican state attorneys general hit the jackpot in the "find me a Trump judge for our case!" jackpot, with the GOP suing the Biden administration over requiring COVID-19 warnings on disinformation. The roll was so good that they got a judge who waited until July 4th to issue a 150+-page injunction forbidding the entire federal government from basically having any contact with social media companies.
A federal judge on Tuesday blocked key Biden administration agencies and officials from meeting and communicating with social media companies about “protected speech,” in an extraordinary preliminary injunction in an ongoing case that could have profound effects on the First Amendment.
The injunction came in response to a lawsuit brought by Republican attorneys general in Louisiana and Missouri, who allege that government officials went too far in their efforts to encourage social media companies to address posts that they worried could contribute to vaccine hesitancy during the pandemic or upend elections.
The Donald Trump-appointed judge’s move could undo years of efforts to enhance coordination between the government and social media companies. For more than a decade, the federal government has attempted to work with social media companies to address criminal activity, including child sexual abuse images and terrorism.
Over the past five years, coordination and communication between government officials and the companies increased as the federal government responded to rising election interference and voter suppression efforts after revelations that Russian actors had sowed disinformation on U.S. social sites during the 2016 election. Public health officials also frequently communicated with the companies during the coronavirus pandemic, as falsehoods about the virus and vaccines spread on social networks including Facebook, Twitter and YouTube.
“The injunction is strikingly broad and clearly intended to chill any kind of contact between government actors and social media platforms,” said Evelyn Douek, an assistant professor at Stanford Law School.
The injunction was a victory for the state attorneys general, who have accused the Biden administration of enabling a “sprawling federal ‘Censorship Enterprise’” to encourage tech giants to remove politically unfavorable viewpoints and speakers, and for conservatives who’ve accused the government of suppressing their speech. In their filings, the attorneys general alleged the actions amount to “the most egregious violations of the First Amendment in the history of the United States of America.”
The judge, Terry A. Doughty, has yet to make a final ruling in the case, but in issuing the injunction, he signaled he is likely to side with the Republican attorneys general and find that the Biden administration ran afoul of the First Amendment. He wrote that the attorneys general “have produced evidence of a massive effort by Defendants, from the White House to federal agencies, to suppress speech based on its content.”
The ruling could have critical implications for tech companies, which regularly communicate with government officials, especially during elections and emergencies such as the coronavirus pandemic.
In his order, the judge made some exceptions for communications between government officials and the companies, including to warn them of national security threats, criminal activity or voter suppression. Douek said the list of exemptions underscored that there were difficult issues at stake in the case, but that the order lacks clear guidance about “where the lines are.”
A White House official said the Justice Department “is reviewing the court’s injunction and will evaluate its options in this case.”
“This Administration has promoted responsible actions to protect public health, safety, and security when confronted by challenges like a deadly pandemic and foreign attacks on our elections,” the official said. “Our consistent view remains that social media platforms have a critical responsibility to take account of the effects their platforms are having on the American people, but make independent choices about the information they present.”
Google, which is among the companies named in the suit, did not immediately respond to a request for comment. Facebook parent company Meta declined to comment, and Twitter did not respond to a request for comment.
The judge’s order puts limits on some executive agencies with a variety of responsibilities across the federal government, including the Department of Justice, State Department, Department of Health and Human Services and the Centers for Disease Control and Prevention. It also names more than a dozen individual officials, including Department of Homeland Security Secretary Alejandro Mayorkas and Jen Easterly, who leads the Cybersecurity and Infrastructure Security Agency.
In addition to limiting the government’s communications with tech companies, Doughty also prohibited the agencies and officials from “collaborating, coordinating, partnering, switchboarding, and/or jointly working with” key academic groups that focus on social media, including the Election Integrity Partnership, a coalition of researchers led by the Stanford Internet Observatory and the University of Washington Center for an Informed Public. House Republicans have also been demanding documents from these academics, amid accusations that they have colluded with government officials to suppress conservative speech.
Remember when conservatives would howl for months and years about "activist judicial rulings circumventing the will of the American people" and all that? Yeah, they've certainly forgotten that now that their side controls the courts.
If you think Twitter and other social media sites are hotbeds of garbage now, wait until the Supreme Court takes up this case and forbids any sort of moderation online, citing the "need for vile and unpopular speech in a free society."
Instagram/Facebook/Meta's new social media site Threads is launching tomorrow, and already I expect it's going to be a train wreck because of this injunction.
Stay tuned.
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