Federal Judge Limits Biden Officials’ Contacts With Social Media Sites
The New York Times (archive.ph)
By Steven Lee Myers and David McCabe
2023-07-04 22:21:58GMT
A federal judge in Louisiana on Tuesday restricted the Biden administration from communicating with social media platforms about broad swaths of content online, a ruling that could curtail efforts to combat false and misleading narratives about the coronavirus pandemic and other issues.
The order, which could have significant First Amendment implications, is a major development in a fierce legal fight over the boundaries and limits of speech online.
It was a victory for Republicans who have often accused social media sites like Facebook, Twitter and YouTube of disproportionately taking down right-leaning content, sometimes in collaboration with government. Democrats say the platforms have failed to adequately police misinformation and hateful speech, leading to dangerous outcomes, including violence.
In the ruling, Judge Terry A. Doughty of the U.S. District Court for the Western District of Louisiana said that parts of the government, including the Department of Health and Human Services and the Federal Bureau of Investigation, could not talk to social media companies for “the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.”
In granting a preliminary injunction, Judge Doughty said that the agencies could not flag specific posts to the social media platforms or request reports about their efforts to take down content. The ruling said that the government could still notify the platforms about posts detailing crimes, national security threats or foreign attempts to influence elections.
“If the allegations made by plaintiffs are true, the present case arguably involves the most massive attack against free speech in United States’ history,” the judge said. “The plaintiffs are likely to succeed on the merits in establishing that the government has used its power to silence the opposition.”
Courts are increasingly being forced to weigh in on such issues — with the potential to upend decades of legal norms that have governed speech online.
The Republican attorneys general of Texas and Florida are defending first-of-their-kind state laws that bar internet platforms from taking down certain political content, and legal experts believe those cases may eventually reach the Supreme Court. The high court this year declined to limit a law that allows the platforms to escape legal liability for content that users post to the sites.
The ruling on Tuesday, in a lawsuit brought by the attorneys general of Louisiana and Missouri, is likely to be appealed by the Biden administration, but its impact could force government officials, including law enforcement agencies, to refrain from notifying the platforms of troublesome content.
Government officials have argued they do not have the authority to order posts or entire accounts removed, but federal agencies and the tech giants have long worked together to take action against illegal or harmful material, especially in cases involving child sexual abuse, human trafficking and other criminal activity. That has also included regular meetings to share information on the Islamic State and other terrorist groups.
The White House said the Justice Department was reviewing the ruling and evaluating its next steps.
“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,” the White House said in a statement.
Meta, which owns Facebook and Instagram, declined to comment. Twitter did not have a comment, and Google did not respond to a request for comment.
Jeff Landry, the Louisiana attorney general, said in a statement that the judge’s order was “historic.” Missouri’s attorney general, Andrew Bailey, hailed the ruling as a “huge win in the fight to defend our most fundamental freedoms.” Both officials are Republican.
“What a way to celebrate Independence Day,” Mr. Bailey said on Twitter.
The issue of the government’s influence over social media has become increasingly partisan.
The Republican majority in the House has taken up the cause, smothering universities and think tanks that have studied the issue with onerous requests for information and subpoenas.
The judge’s order bars government agencies from communicating with some of those outside groups, including the Election Integrity Partnership, the Virality Project and the Stanford Internet Observatory, in order to induce the removal of protected speech online. Alex Stamos, the director of the Stanford Internet Observatory, which was involved in leading the two other projects, declined to comment.
Since acquiring Twitter last year, Elon Musk has echoed Republican arguments, releasing internal company documents to chosen journalists suggesting what they claimed was collusion between company and government officials. Though that remains far from proven, some of the documents Mr. Musk disclosed ended up in the lawsuit’s arguments.
The defendants, the social media companies and experts who study disinformation have argued that there is no evidence of a systematic effort by the government to censor individuals in violation of the First Amendment. David Rand, an expert on misinformation at Massachusetts Institute of Technology, said his understanding was that the government had at most a limited impact on how social media platforms engaged with misinformation.
At the same time, emails and text messages made public in the case that Judge Doughty ruled on have shown instances where officials complained to social media executives when influential users spread disinformation, especially involving the coronavirus pandemic.
The states said in their lawsuit that they had a “sovereign and proprietary interest in receiving free flow of information in public discourse on social-media platforms.”
In addition to the Missouri and Louisiana attorneys general, the case was brought by four other plaintiffs: Jayanta Bhattacharya and Martin Kulldorff, epidemiologists who questioned the government’s handling of the pandemic; Aaron Kheriaty, a professor dismissed by the University of California, Irvine, for refusing to have a coronavirus vaccination; Jill Hines, a director of Health Freedom Louisiana, an organization that has been accused of disinformation; and Jim Hoft, founder of Gateway Pundit, a right-wing news site. The four additional plaintiffs said social media sites removed some of their posts.
Although the lawsuit named as defendants President Biden and dozens of officials in 11 government agencies, some of the instances cited took place during the Trump administration.
Judge Doughty, who was appointed to the federal court by President Donald J. Trump in 2017, has been sympathetic to conservative cases, having previously blocked the Biden administration’s national vaccination mandate for health care workers and overturned its ban on new federal leases for oil and gas drilling.
He allowed the plaintiffs extensive discovery and depositions from prominent officials like Anthony S. Fauci, then the nation’s top infectious disease expert, who told the plaintiffs’ lawyers that he was not involved in any discussions to censor content online.
Some experts in First Amendment law and misinformation criticized the Tuesday ruling.
“It can’t be that the government violates the First Amendment simply by engaging with the platforms about their content-moderation decisions and policies,” said Jameel Jaffer, the executive director of the Knight First Amendment Institute at Columbia University. “If that’s what the court is saying here, it’s a pretty radical proposition that isn’t supported by the case law.”
Mr. Jaffer added that the government has to balance between calling out false speech without stepping into informal coercion that veers toward censorship. “Unfortunately Judge Doughty’s order doesn’t reflect a serious effort to reconcile the competing principles,” he said.
Judge Doughty’s ruling said the injunction would remain in place while proceedings in the lawsuit continued unless he or a higher court ruled differently.
---
Judge limits Biden administration in working with social media companies
Associated Press (archive.ph)
By Jim Salter
2023-07-04 21:46:48GMT
A judge on Tuesday prohibited several federal agencies and officials of the Biden administration from working with social media companies about “protected speech,” a decision called “a blow to censorship” by one of the Republican officials whose lawsuit prompted the ruling.
U.S. District Judge Terry Doughty of Louisiana granted the injunction in response to a 2022 lawsuit brought by attorneys general in Louisiana and Missouri. Their lawsuit alleged that the federal government overstepped in its efforts to convince social media companies to address postings that could result in vaccine hesitancy during the COVID-19 pandemic or affect elections.
Doughty cited “substantial evidence” of a far-reaching censorship campaign. He wrote that the “evidence produced thus far depicts an almost dystopian scenario. During the COVID-19 pandemic, a period perhaps best characterized by widespread doubt and uncertainty, the United States Government seems to have assumed a role similar to an Orwellian ‘Ministry of Truth.’ ”
Republican U.S. Sen. Eric Schmitt, who was the Missouri attorney general when the lawsuit was filed, said on Twitter that the ruling was “a huge win for the First Amendment and a blow to censorship.”
Louisiana Attorney General Jeff Landry said the injunction prevents the administration “from censoring the core political speech of ordinary Americans” on social media.
“The evidence in our case is shocking and offensive with senior federal officials deciding that they could dictate what Americans can and cannot say on Facebook, Twitter, YouTube, and other platforms about COVID-19, elections, criticism of the government, and more,” Landry said in a statement.
The Justice Department is reviewing the injunction “and will evaluate its options in this case,” said a White House official who was not authorized to discuss the case publicly and spoke on condition of anonymity.
“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.”
The ruling listed several government agencies, including the Department of Health and Human Services and the FBI, that are prohibited by the injunction from discussions with social media companies aimed at “encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.”
The order mentions by name several officials, including Health and Human Services Secretary Xavier Becerra, Department of Homeland Security Secretary Alejandro Mayorkas and others.
Doughty allowed several exceptions, such as informing social media companies of postings involving criminal activity and conspiracies; as well as notifying social media firms of national security threats and other threats posted on platforms.
The plaintiffs in the lawsuit also included individuals, including conservative website owner Jim Hoft. The lawsuit accused the administration of using the possibility of favorable or unfavorable regulatory action to coerce social media platforms to squelch what it considered misinformation on masks and vaccines during the COVID-19 pandemic. It also touched on other topics, including claims about election integrity and news stories about material on a laptop owned by Hunter Biden, the president’s son.
Administration lawyers said the government left it up to social media companies to decide what constituted misinformation and how to combat it. In one brief, they likened the lawsuit to an attempt to put a legal gag order on the federal government and “suppress the speech of federal government officials under the guise of protecting the speech rights of others.”
“Plaintiffs’ proposed injunction would significantly hinder the Federal Government’s ability to combat foreign malign influence campaigns, prosecute crimes, protect the national security, and provide accurate information to the public on matters of grave public concern such as health care and election integrity,” the administration says in a May 3 court filing.
---
Judge blocks U.S. officials from tech contacts in First Amendment case
The Washington Post (archive.ph)
By Cat Zakrzewski
2023-07-05 01:02:23GMT
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.
The lawsuit marks a critical inflection point in a years-long, partisan battle over speech on social media. For years, Republicans have argued that social media companies’ policies to address disinformation related to elections and public health have resulted in the unfair censorship of their political views. Meanwhile, Democrats have argued that the companies have not gone far enough in policing their services to ensure they do not undermine democratic institutions.
The lawsuit brought by the Louisiana and Missouri attorneys general is at the forefront of a broader GOP effort to allege that the Biden White House is putting “unconstitutional” pressure on the tech companies to eliminate disfavored views online. Such accusations have been fanned in multiple lawsuits, as well as in congressional hearings and probes in the Republican-led House of Representatives.
But the lawsuit marks a new twist in Republicans’ complaints that tech companies are silencing their views. Instead of targeting the tech companies, which say they have a First Amendment right to decide what appears on their sites, the lawsuit targets the federal government’s role in that process in the most successful legal effort to date to counter tech company moderation efforts.
The Republican state attorneys general argue that the Biden administration ran afoul of the First Amendment by threatening legal action against the tech companies amid disputes over speech on the platforms. Their complaint cites occasions when the Biden administration threatened to take antitrust action against the companies or undo Section 230, a legal shield that protects tech giants from lawsuits.
“The deep state planted a seed of suppression of government censorship, but that seed was fertilized, germinated and grew rapidly once President Biden took office,” Missouri Attorney General Andrew Bailey said in an interview with The Washington Post before the decision.
“Deep state” refers the unsubstantiated idea, frequently invoked by Trump, that a group of bureaucrats is working to undermine elected officials to shape government policy.
The Trump administration made similar arguments during battles with the social media companies — and at times went further. In 2020, Trump signed an executive order that directed the Federal Communications Commission to rethink the scope of Section 230. That order came in the same week Twitter applied fact-checking labels to two of Trump’s tweets.
The Biden administration disputes the Republicans’ claims, arguing that the communications that the GOP officials uncovered reflect the government using its bully pulpit to promote accurate information in the face of foreign interference in elections and a deadly virus.
Justice Department lawyers argued during a May hearing that the Republicans’ accusations were laced with “hyperbole,” according to a court transcript. They also warned that an injunction could undermine national security efforts, since the Republicans’ lawsuit critiques multiple programs that were established to respond to evidence that Russian actors exploited American social networks to sow disinformation in the runup to the 2016 election.
The Republicans’ case hinges on tens of thousands of communications, including emails and messages, between Biden administration officials and social media companies, largely occurring between 2020 and 2021. The state attorneys general have argued that starting in 2017 — four years before Biden was president — officials within the government began laying the groundwork for a “systemic and systematic campaign” to control speech on social media.
These efforts accelerated in 2020, while Trump was still president, amid the response to the coronavirus outbreak and efforts to secure the 2020 election, the attorneys general argued in court. They said those endeavors took a “quantum leap” forward once Biden became president, as the White House both publicly and privately pressured major tech companies to remove posts that could contribute to vaccine hesitancy, while at the same time threatening to regulate the social media companies.
Some individuals who think their posts were unfairly censored by social media companies joined the Republican state attorneys general in the lawsuit. They include Jim Hoft, owner and operator of the Gateway Pundit, a conservative website. Hoft alleges that his social media accounts were suspended in response to comments he made about coronavirus vaccines and mail-in ballots. Another plaintiff, Jill Hines, alleges she was “censored” because she opposed mask mandates for young children.
Doughty’s order comes as social media companies recently have begun to unwind some of the programs created to address disinformation. Under Elon Musk’s ownership, Twitter has made steep cuts to its Trust and Safety division and has increased its reliance on Community Notes, its program of crowdsourced fact checks on tweets. Meta, the parent company of Facebook and Instagram, has laid off staff working on content moderation amid financial pressure.
In his interview with The Post, Bailey praised these recent moves.
“There are deep concerns here that the government’s unrepentant attitude demonstrates a willingness to continue to violate the First Amendment,” he said. “That’s why this wall of separation is so important, regardless of the steps that Big Tech is taking independent of our lawsuit.”
The judge's order:
https://www.washingtonpost.com/documents/75e9f7a3-da4e-45af-8430-6eeba37eaf9f.pdf (archive.org)
The New York Times (archive.ph)
By Steven Lee Myers and David McCabe
2023-07-04 22:21:58GMT
A federal judge in Louisiana on Tuesday restricted the Biden administration from communicating with social media platforms about broad swaths of content online, a ruling that could curtail efforts to combat false and misleading narratives about the coronavirus pandemic and other issues.
The order, which could have significant First Amendment implications, is a major development in a fierce legal fight over the boundaries and limits of speech online.
It was a victory for Republicans who have often accused social media sites like Facebook, Twitter and YouTube of disproportionately taking down right-leaning content, sometimes in collaboration with government. Democrats say the platforms have failed to adequately police misinformation and hateful speech, leading to dangerous outcomes, including violence.
In the ruling, Judge Terry A. Doughty of the U.S. District Court for the Western District of Louisiana said that parts of the government, including the Department of Health and Human Services and the Federal Bureau of Investigation, could not talk to social media companies for “the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.”
In granting a preliminary injunction, Judge Doughty said that the agencies could not flag specific posts to the social media platforms or request reports about their efforts to take down content. The ruling said that the government could still notify the platforms about posts detailing crimes, national security threats or foreign attempts to influence elections.
“If the allegations made by plaintiffs are true, the present case arguably involves the most massive attack against free speech in United States’ history,” the judge said. “The plaintiffs are likely to succeed on the merits in establishing that the government has used its power to silence the opposition.”
Courts are increasingly being forced to weigh in on such issues — with the potential to upend decades of legal norms that have governed speech online.
The Republican attorneys general of Texas and Florida are defending first-of-their-kind state laws that bar internet platforms from taking down certain political content, and legal experts believe those cases may eventually reach the Supreme Court. The high court this year declined to limit a law that allows the platforms to escape legal liability for content that users post to the sites.
The ruling on Tuesday, in a lawsuit brought by the attorneys general of Louisiana and Missouri, is likely to be appealed by the Biden administration, but its impact could force government officials, including law enforcement agencies, to refrain from notifying the platforms of troublesome content.
Government officials have argued they do not have the authority to order posts or entire accounts removed, but federal agencies and the tech giants have long worked together to take action against illegal or harmful material, especially in cases involving child sexual abuse, human trafficking and other criminal activity. That has also included regular meetings to share information on the Islamic State and other terrorist groups.
The White House said the Justice Department was reviewing the ruling and evaluating its next steps.
“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,” the White House said in a statement.
Meta, which owns Facebook and Instagram, declined to comment. Twitter did not have a comment, and Google did not respond to a request for comment.
Jeff Landry, the Louisiana attorney general, said in a statement that the judge’s order was “historic.” Missouri’s attorney general, Andrew Bailey, hailed the ruling as a “huge win in the fight to defend our most fundamental freedoms.” Both officials are Republican.
“What a way to celebrate Independence Day,” Mr. Bailey said on Twitter.
The issue of the government’s influence over social media has become increasingly partisan.
The Republican majority in the House has taken up the cause, smothering universities and think tanks that have studied the issue with onerous requests for information and subpoenas.
The judge’s order bars government agencies from communicating with some of those outside groups, including the Election Integrity Partnership, the Virality Project and the Stanford Internet Observatory, in order to induce the removal of protected speech online. Alex Stamos, the director of the Stanford Internet Observatory, which was involved in leading the two other projects, declined to comment.
Since acquiring Twitter last year, Elon Musk has echoed Republican arguments, releasing internal company documents to chosen journalists suggesting what they claimed was collusion between company and government officials. Though that remains far from proven, some of the documents Mr. Musk disclosed ended up in the lawsuit’s arguments.
The defendants, the social media companies and experts who study disinformation have argued that there is no evidence of a systematic effort by the government to censor individuals in violation of the First Amendment. David Rand, an expert on misinformation at Massachusetts Institute of Technology, said his understanding was that the government had at most a limited impact on how social media platforms engaged with misinformation.
At the same time, emails and text messages made public in the case that Judge Doughty ruled on have shown instances where officials complained to social media executives when influential users spread disinformation, especially involving the coronavirus pandemic.
The states said in their lawsuit that they had a “sovereign and proprietary interest in receiving free flow of information in public discourse on social-media platforms.”
In addition to the Missouri and Louisiana attorneys general, the case was brought by four other plaintiffs: Jayanta Bhattacharya and Martin Kulldorff, epidemiologists who questioned the government’s handling of the pandemic; Aaron Kheriaty, a professor dismissed by the University of California, Irvine, for refusing to have a coronavirus vaccination; Jill Hines, a director of Health Freedom Louisiana, an organization that has been accused of disinformation; and Jim Hoft, founder of Gateway Pundit, a right-wing news site. The four additional plaintiffs said social media sites removed some of their posts.
Although the lawsuit named as defendants President Biden and dozens of officials in 11 government agencies, some of the instances cited took place during the Trump administration.
Judge Doughty, who was appointed to the federal court by President Donald J. Trump in 2017, has been sympathetic to conservative cases, having previously blocked the Biden administration’s national vaccination mandate for health care workers and overturned its ban on new federal leases for oil and gas drilling.
He allowed the plaintiffs extensive discovery and depositions from prominent officials like Anthony S. Fauci, then the nation’s top infectious disease expert, who told the plaintiffs’ lawyers that he was not involved in any discussions to censor content online.
Some experts in First Amendment law and misinformation criticized the Tuesday ruling.
“It can’t be that the government violates the First Amendment simply by engaging with the platforms about their content-moderation decisions and policies,” said Jameel Jaffer, the executive director of the Knight First Amendment Institute at Columbia University. “If that’s what the court is saying here, it’s a pretty radical proposition that isn’t supported by the case law.”
Mr. Jaffer added that the government has to balance between calling out false speech without stepping into informal coercion that veers toward censorship. “Unfortunately Judge Doughty’s order doesn’t reflect a serious effort to reconcile the competing principles,” he said.
Judge Doughty’s ruling said the injunction would remain in place while proceedings in the lawsuit continued unless he or a higher court ruled differently.
---
Judge limits Biden administration in working with social media companies
Associated Press (archive.ph)
By Jim Salter
2023-07-04 21:46:48GMT
A judge on Tuesday prohibited several federal agencies and officials of the Biden administration from working with social media companies about “protected speech,” a decision called “a blow to censorship” by one of the Republican officials whose lawsuit prompted the ruling.
U.S. District Judge Terry Doughty of Louisiana granted the injunction in response to a 2022 lawsuit brought by attorneys general in Louisiana and Missouri. Their lawsuit alleged that the federal government overstepped in its efforts to convince social media companies to address postings that could result in vaccine hesitancy during the COVID-19 pandemic or affect elections.
Doughty cited “substantial evidence” of a far-reaching censorship campaign. He wrote that the “evidence produced thus far depicts an almost dystopian scenario. During the COVID-19 pandemic, a period perhaps best characterized by widespread doubt and uncertainty, the United States Government seems to have assumed a role similar to an Orwellian ‘Ministry of Truth.’ ”
Republican U.S. Sen. Eric Schmitt, who was the Missouri attorney general when the lawsuit was filed, said on Twitter that the ruling was “a huge win for the First Amendment and a blow to censorship.”
Louisiana Attorney General Jeff Landry said the injunction prevents the administration “from censoring the core political speech of ordinary Americans” on social media.
“The evidence in our case is shocking and offensive with senior federal officials deciding that they could dictate what Americans can and cannot say on Facebook, Twitter, YouTube, and other platforms about COVID-19, elections, criticism of the government, and more,” Landry said in a statement.
The Justice Department is reviewing the injunction “and will evaluate its options in this case,” said a White House official who was not authorized to discuss the case publicly and spoke on condition of anonymity.
“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.”
The ruling listed several government agencies, including the Department of Health and Human Services and the FBI, that are prohibited by the injunction from discussions with social media companies aimed at “encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.”
The order mentions by name several officials, including Health and Human Services Secretary Xavier Becerra, Department of Homeland Security Secretary Alejandro Mayorkas and others.
Doughty allowed several exceptions, such as informing social media companies of postings involving criminal activity and conspiracies; as well as notifying social media firms of national security threats and other threats posted on platforms.
The plaintiffs in the lawsuit also included individuals, including conservative website owner Jim Hoft. The lawsuit accused the administration of using the possibility of favorable or unfavorable regulatory action to coerce social media platforms to squelch what it considered misinformation on masks and vaccines during the COVID-19 pandemic. It also touched on other topics, including claims about election integrity and news stories about material on a laptop owned by Hunter Biden, the president’s son.
Administration lawyers said the government left it up to social media companies to decide what constituted misinformation and how to combat it. In one brief, they likened the lawsuit to an attempt to put a legal gag order on the federal government and “suppress the speech of federal government officials under the guise of protecting the speech rights of others.”
“Plaintiffs’ proposed injunction would significantly hinder the Federal Government’s ability to combat foreign malign influence campaigns, prosecute crimes, protect the national security, and provide accurate information to the public on matters of grave public concern such as health care and election integrity,” the administration says in a May 3 court filing.
---
Judge blocks U.S. officials from tech contacts in First Amendment case
The Washington Post (archive.ph)
By Cat Zakrzewski
2023-07-05 01:02:23GMT
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.
The lawsuit marks a critical inflection point in a years-long, partisan battle over speech on social media. For years, Republicans have argued that social media companies’ policies to address disinformation related to elections and public health have resulted in the unfair censorship of their political views. Meanwhile, Democrats have argued that the companies have not gone far enough in policing their services to ensure they do not undermine democratic institutions.
The lawsuit brought by the Louisiana and Missouri attorneys general is at the forefront of a broader GOP effort to allege that the Biden White House is putting “unconstitutional” pressure on the tech companies to eliminate disfavored views online. Such accusations have been fanned in multiple lawsuits, as well as in congressional hearings and probes in the Republican-led House of Representatives.
But the lawsuit marks a new twist in Republicans’ complaints that tech companies are silencing their views. Instead of targeting the tech companies, which say they have a First Amendment right to decide what appears on their sites, the lawsuit targets the federal government’s role in that process in the most successful legal effort to date to counter tech company moderation efforts.
The Republican state attorneys general argue that the Biden administration ran afoul of the First Amendment by threatening legal action against the tech companies amid disputes over speech on the platforms. Their complaint cites occasions when the Biden administration threatened to take antitrust action against the companies or undo Section 230, a legal shield that protects tech giants from lawsuits.
“The deep state planted a seed of suppression of government censorship, but that seed was fertilized, germinated and grew rapidly once President Biden took office,” Missouri Attorney General Andrew Bailey said in an interview with The Washington Post before the decision.
“Deep state” refers the unsubstantiated idea, frequently invoked by Trump, that a group of bureaucrats is working to undermine elected officials to shape government policy.
The Trump administration made similar arguments during battles with the social media companies — and at times went further. In 2020, Trump signed an executive order that directed the Federal Communications Commission to rethink the scope of Section 230. That order came in the same week Twitter applied fact-checking labels to two of Trump’s tweets.
The Biden administration disputes the Republicans’ claims, arguing that the communications that the GOP officials uncovered reflect the government using its bully pulpit to promote accurate information in the face of foreign interference in elections and a deadly virus.
Justice Department lawyers argued during a May hearing that the Republicans’ accusations were laced with “hyperbole,” according to a court transcript. They also warned that an injunction could undermine national security efforts, since the Republicans’ lawsuit critiques multiple programs that were established to respond to evidence that Russian actors exploited American social networks to sow disinformation in the runup to the 2016 election.
The Republicans’ case hinges on tens of thousands of communications, including emails and messages, between Biden administration officials and social media companies, largely occurring between 2020 and 2021. The state attorneys general have argued that starting in 2017 — four years before Biden was president — officials within the government began laying the groundwork for a “systemic and systematic campaign” to control speech on social media.
These efforts accelerated in 2020, while Trump was still president, amid the response to the coronavirus outbreak and efforts to secure the 2020 election, the attorneys general argued in court. They said those endeavors took a “quantum leap” forward once Biden became president, as the White House both publicly and privately pressured major tech companies to remove posts that could contribute to vaccine hesitancy, while at the same time threatening to regulate the social media companies.
Some individuals who think their posts were unfairly censored by social media companies joined the Republican state attorneys general in the lawsuit. They include Jim Hoft, owner and operator of the Gateway Pundit, a conservative website. Hoft alleges that his social media accounts were suspended in response to comments he made about coronavirus vaccines and mail-in ballots. Another plaintiff, Jill Hines, alleges she was “censored” because she opposed mask mandates for young children.
Doughty’s order comes as social media companies recently have begun to unwind some of the programs created to address disinformation. Under Elon Musk’s ownership, Twitter has made steep cuts to its Trust and Safety division and has increased its reliance on Community Notes, its program of crowdsourced fact checks on tweets. Meta, the parent company of Facebook and Instagram, has laid off staff working on content moderation amid financial pressure.
In his interview with The Post, Bailey praised these recent moves.
“There are deep concerns here that the government’s unrepentant attitude demonstrates a willingness to continue to violate the First Amendment,” he said. “That’s why this wall of separation is so important, regardless of the steps that Big Tech is taking independent of our lawsuit.”
The judge's order:
https://www.washingtonpost.com/documents/75e9f7a3-da4e-45af-8430-6eeba37eaf9f.pdf (archive.org)
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