Comments on “Free Speech on Social Media, COVID-19, and the First Amendment’s Defender’s Report” by Jameel Jaffer
The New York Times cites Jameel Jaffer, the executive director of the Knight First Amendment Institute at Columbia University, responding to the ruling saying, “It can’t be that the government violates the First Amendment simply by engaging with the platforms about their content-moderation decisions and policies… If that’s what the court is saying here, it’s a pretty radical proposition that isn’t supported by the case law.”
The judge believes there is a chance that the lawsuit will show that federal government officials are targeting and suppressing millions of protected free speech postings by Americans.
The case, brought by the Republican attorneys general of Missouri and Louisiana, addresses what has become a highly contested subject: the demands by some conservatives for “free speech” on social media platforms, versus the desire to rein in misinformation and disinformation that could lead to real-world harm.
“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 in a statement. “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 also prevents federal officials from working with third parties including the Election Integrity Partnership, the Virality Project, and the Stanford Internet Observatory — three academic research groups that track the spread of online information. Republicans said the Biden administration was attempting to take away its alleged efforts to stifle speech.
The decision by social media companies to back off policies about election integrity and COVID-19 is a testament to how politicized this topic has become and will continue to be.
The case is likely to go to the Supreme Court after the Biden administration appeals the ruling. The White House has been saying that tech companies are not doing enough to fight false and misleading claims on social media. The Supreme Court ruled in favor of First amendment rights over other considerations, including siding with a person who did not want to work with same sex couples.
“I know it’s a matter of the paranoia of the conservative groups that they’re being victimized by shadowy agents and the government,” he says. These issues are not partisan in nature. These are issues that everyone should be concerned about.”
But she says Doughty’s ruling is “painting with a very broad brush and saying any and all contact is really problematic. I think that that goes over the edge and will have dire ramifications for the way that these platforms operate.
Douek says not enough is known about what sort of contact tech companies regularly have with government agencies and officials. “If there’s any sort of saving grace or positive of this judgment, it’s to sort of shed some light on the kinds of relationships that the platforms have,” she says.
Informal conversations, reporting mechanisms, and private meetings are just some of the ways that social media companies have relationships with governments. The interactions accelerated after the 2016 election due to criticisms that tech platforms had not done enough to combat Russian efforts to interfere in the presidential race.
A legal blow has hampered the government’s ability to fight online misinformation.
A Tuesday ruling by a federal district judge in Louisiana could affect the government’s ability to address false and misleading claims about COVID, vaccines, voting, and other issues that could undermine public health and erode faith in election results.
The AGs’ argument ties into a larger Republican narrative that conservatives are being censored on social media for their views. Democrats said the platforms were not doing enough to police misleading and false claims.
“It’s hard to think of a more sweeping ruling,” says Evelyn Douek, an expert on the regulation of online speech and a professor at Stanford Law School.
The Department of Justice, Health and Human Services, State, the Centers for Disease Control and Prevention, and many individual government officials were blocked from doing things like notifying platforms about specific posts that may be against their own rules or asking for information about content moderation.
Exercising public government speech promoting government policies or views on matters of public concern, and interacting with social media companies about posts that are not free speech, are two examples of exceptions.
Yes. It lists Facebook/Meta, Twitter, YouTube/Google, WhatsApp, Instagram, WeChat, TikTok, Sina Weibo, QQ, Telegram, Snapchat, Kuaishou, Qzone, Pinterest, Reddit, LinkedIn, Quora, Discord, Twitch, Tumblr, Mastodon “and like companies.”
Does the lawsuit about the Biden administration communicate with tech companies about “protected speech”? The $64,000 question, say MacCarthy and Brookings
“That’s clearly the $64,000 question,” says Mark MacCarthy, a tech policy expert and senior fellow at the Brookings Institution. But he notes that no one is really disputing that the sort of content the lawsuit identifies the government communicating with tech companies about is protected speech.
“It was pretty clear on the part of everybody involved in this, that the speech involved was clearly protected by the First Amendment,” he says. The election was questioned on whether or not it was fraudulent. It was statements about whether vaccines worked or not. And while those things maybe have scientific answers, the unscientific answers are clearly protected speech.”
The Biden administration doesn’t want to tell social media companies what to do or how to set policies, but does want to promote accurate information about important issues like public health and elections and the spread of illegal materials like child sex abuse.